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TMI Blog2013 (1) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. Decides against assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... unds were on the reopening of the assessment under Section 147 alleging there was no material to invoke the provision and whether an amendment tantamounts to new material. The next ground was regarding the reopening of the assessment on the ground of retrospective amendment of Section 80 HHC, since according to the assessee no retrospective amendment could have been made to withdraw the exemption or concessions already granted. The first two grounds were rejected by the first appellate authority holding that 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 1st appellate authority, in any event could not have considered the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on transfer of DEPB for the purpose of clause (iiid) of Section 28. The argument before the Supreme Court was that in such circumstance there will be double taxation on the assessee since under clause (iiib) of Section 28 the cash assistance, equivalent to the face value of the DEPB would be taxed and the same again subjected to tax for a second time as profit on transfer of DEPB under clause (iiid) of Section 28. What is to be taken for the purpose of clause (iiid) of Section 28, according to the assessees before the Supreme Court, was the difference between the sale proceeds and the face value of DEPB. The Supreme Court held that the cost of acquiring DEPB is not nil because the person acquires it by paying customs duty on the import c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also enable the High Court to consider such validity or otherwise. 8. The issue of the scope of Section 67 in the Income Tax Act, 1922 arose in K.S.Venkataraman & Co. Vs. State of Madras (1966) 2 SCR 229. Section 67 was a bar to the maintainability of a suit against assessments made under the Act. Whether the restriction applied in the event of the assessing officer giving effect to an ultra vires provision; was the question dealt with. After noticing the provisions empowering the Income Tax officers to make assessments and the two tier appeal respectively before the Assistant Appellate Commissioner & ITAT, the Supreme Court held: "Up to this stage all the three authorities are the creatures of the Act and they function thereunder. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said that a question whether a provision of the Act is ultra vires of the Legislature arises out of the Tribunal's order? As the Tribunal is a creature of the statute, it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act. The question of ultra vires is foreign to the scope of its jurisdiction. If an assessee raises such a question, the Tribunal can only reject it on the ground that it has no jurisdiction to entertain the said objection or decide on it. As no such question can be raised or can arise on the Tribunal's order, the High Court cannot possibly give any decision on the question of the ultra vires of a provision. At the most the only question that it may be called upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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