2012 (9) TMI 14 - HC - Income Tax

Re opining of assessment - non fulfillment of condition for claiming entitlement of profits on sale of DEPB u/s 80 HHC - Held that - Considering the retrospective amendment to Section 80HHC brought in the year 2005 every assessee having turnover exceeding Rs.10 crores for claiming entitlement of profits on sale of DEPB under Section 80 HHC has to satisfy two conditions regarding availability of an option to choose either duty drawback or DEPB scheme and also that the duty drawback credit was higher than that available under DEPB - the reopening under Section 147 was done based on the retrospective amendment which is new material and was within the prescribed time limit and hence is valid. The validity of a provision cannot be considered or adjudicated upon by the Tribunal constituted under the Act. Section 260A provides for an appeal from every order passed by the Appellate Tribunal; if it involves a substantial question of law. Such question of law should arise from the order of the Tribunal. If the Tribunal cannot consider the validity of a retrospective amendment no doubt such question does not arise from its order and the jurisdiction conferred on the High Court under Section 260A cannot also enable the High Court to consider such validity or otherwise - against assessee

Issues:
1. Deduction claimed under Section 80 HHC for profit on sale of DEPB.
2. Validity of reopening assessment under Section 147 based on retrospective amendment.
3. Applicability of Supreme Court judgment on treatment of DEPB sale value.
4. Constitutional validity of retrospective amendment under Finance Act 2005.
5. Jurisdiction of Tribunal to consider validity of provisions.
6. Scope of Section 260A in the Income Tax Act, 1961.

Analysis:
1. The appellant, an exporter of cashew kernels, appealed against the Tribunal's orders for assessment years 2001-'02 and 2003-'04. The issue revolved around the deduction claimed under Section 80 HHC concerning the profit on sale of DEPB. The assessing authority disallowed the claim due to a 2005 amendment affecting exporters with turnover exceeding Rs.10 crores.

2. The appellant challenged the reopening of assessment under Section 147, citing lack of material and the retrospective nature of the amendment. The first appellate authority upheld the reopening based on the retrospective amendment, rejecting the appellant's contentions regarding the validity of the amendment.

3. The Income Tax Appellate Tribunal rejected the appeal, focusing solely on the reopening under Section 147. The appellant did not contest this finding in the subsequent appeal. The Supreme Court judgment in M/s. Topman Exports Vs. Commissioner of Income Tax, Mumbai was referenced, highlighting the treatment of DEPB sale value under Section 28.

4. The appellant argued against the retrospective amendment of 2005, citing a High Court ruling in Gujarat. However, the Tribunal's jurisdiction did not extend to considering the constitutional validity of provisions, as per Section 260A.

5. The Tribunal's role was clarified in light of the Income Tax Act, 1961, emphasizing its limitations in adjudicating on the validity of retrospective amendments. The judgment in K.S.Venkataraman & Co. Vs. State of Madras (1966) was referenced to illustrate the restricted scope of the Tribunal's jurisdiction.

6. The Court concluded that determining the constitutional validity of the 2005 amendment would exceed the Tribunal's jurisdiction under Section 260A. The appellant did not raise this issue in the appeal, leading to the rejection of the appeals.

This detailed analysis addresses the various legal issues raised in the judgment, outlining the arguments presented by the parties and the rationale behind the Court's decision.

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