2001 (12) TMI 17 - HC - Income Tax

Export Special Deduction Writ Alternate Remedy - This is an application inter alia for issuance of a writ in the nature of mandamus commanding the respondents to withdraw cancel recall and rescind the impugned order of assessment passed by respondent No. 1 for the assessment year 1993-94 in refusing to allow the full deduction to the petitioners under section 80HHC and further writ in the nature of mandamus commanding respondent No. 2 to grant approval under section 80HHC(2)(a) of the said Act beyond six months to forbear from giving effect to the amendment in respect of section 80HHC(2)(a) with effect from June 1 1999 by the Finance Act 1999 and also to dispose of the application filed by the petitioner for extension of time for repatriation of balance export value beyond six months. - in my opinion it would not be proper for me to pass any order on this application and on these facts this application must fail and is hereby dismissed.

Issues:
- Jurisdiction of Assessing Officer under section 80HHC of the Income-tax Act, 1961
- Refusal of extension of time for repatriation of sale proceeds by Commissioner of Income-tax
- Suppression of material facts by the petitioner
- Applicability of amendments to section 80HHC made by the Finance Act, 1999
- Parallel proceedings before the Appellate Tribunal and High Court

Jurisdiction of Assessing Officer under section 80HHC:
The case involved a dispute regarding the jurisdiction of the Assessing Officer (AO) under section 80HHC of the Income-tax Act, 1961. The petitioner contended that the AO had no authority to decide on the matter as only the Commissioner had the power to grant or refuse an extension. The petitioner claimed that the AO's refusal to grant a deduction was without jurisdiction and that the matter should have been referred to the Commissioner for approval or disapproval. The petitioner argued that the AO's order was passed without jurisdiction, leading to the application for a writ of mandamus to withdraw the impugned order of assessment.

Refusal of extension of time by Commissioner of Income-tax:
The petitioner had applied for an extension of time for repatriation of balance export value beyond six months. However, the Commissioner of Income-tax refused to grant the extension citing the amendments made by the Finance Act, 1999, which limited his authority in such matters. The petitioner challenged the Commissioner's decision, claiming that the changes brought about by the amendment should not affect their application for extension, as the changes should be prospective, not retrospective.

Suppression of material facts by the petitioner:
The respondents argued that the petitioner had suppressed material facts from the court, including a series of events and applications filed by the petitioner subsequent to the initial filing. The petitioner filed a supplementary affidavit after the matter came before the court, raising concerns about the suppression of facts and the subsequent filing of documents. The court noted that there was a material suppression of facts by the petitioner, which affected the proceedings and the relief sought.

Applicability of amendments to section 80HHC:
The court considered the applicability of the amendments to section 80HHC introduced by the Finance Act, 1999. The respondents contended that the Commissioner had no authority to deal with the matter after the amendment took effect in 1999, as the law had vested such power in the Reserve Bank of India or other specific authorities. The court agreed with the respondents, holding that the Commissioner lacked the power to decide on the matter post-amendment.

Parallel proceedings before the Appellate Tribunal and High Court:
The respondents argued that since the matter was pending before the Appellate Tribunal, filing parallel proceedings before the High Court was impermissible under the law. Citing relevant judgments, the respondents contended that simultaneous proceedings were not allowed. The court agreed with the respondents, holding that the petitioner should not have filed the application before the High Court while the matter was pending before the Appellate Tribunal. The court dismissed the application, citing the suppression of facts and the ongoing proceedings before the Tribunal.

← Previous Next →