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TMI Blog2021 (4) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... The above appeals were admitted on the following substantial question of law: "Whether on facts and circumstances of the case, the Tribunal was right in law that the amendment to the third proviso to Section 80HHC with retrospective effect from 01.04.1998 is violative of Constitution of India when the assessee has not fulfilled the conditions of proviso of Section 80HHC(3)?" 3.When the appeals are taken up for hearing, Mr.M.Swaminathan, learned senior standing counsel appearing for the appellant - Revenue fairly submitted that the question of law that has been raised in the above appeals are covered by the decision of the Hon'ble Supreme Court reported in [2015] 58 taxmann.com 100 (SC) [Commissioner of Income Tax Vs. Avani Exports] w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two conditions should be declared ultra vires and severed. The rationale behind seeking such a prayer was obvious inasmuch as the writ petitioners did not want entire Notification to be declared ultra vires which was to their advantage. What they wanted was that the benefit of amended provision be accorded, without insisting on the aforesaid conditions. 3. The High Court vide impugned judgment has decided the issue in favour of the writ petitioners by concluding as under: "26. On consideration of the entire materials on record, we, therefore, find substance in the contention of the learned counsel for the petitioners that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and both would be entitled to the benefits. 5. We find that in essence the High Court has quashed the severable part of third and fourth proviso to Sec.80HHC (3) and it becomes clear therefrom that challenge which was laid to the conditions contained in the said provisos by the respondent has succeeded. However, to make the position crystal clear, we substitute the direction of the High Court with the following direction: "Having seen the twin conditions and since 80HHC benefit is not available after 1.4.05, we are satisfied that cases of exporters having a turnover below and those above 10 cr. Should be treated similarly. This order is in substitution of the judgment in Appeal." 6. With the aforesaid clarification all these SLPs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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