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TMI Blog2014 (5) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... the amendment - The assessee was content, it accepted the order which became final - the reassessment order cannot be sought to be indicted in as much as the finality which attaches itself to the reassessment order cannot be affected, merely because a later judgment of the Gujarat High Court held the amendment to be arbitrary, to the extent of its retrospectivity – Decided in favour of Revenue. - ITA 26/2014, C.M. NO. 1596/2014 (for exemption), ITA 27/2014, ITA 28/2014, C.M. NO. 1597/2014 (for exemption) - - - Dated:- 23-5-2014 - S. Ravindra Bhat And Vibhu Bakhru,JJ. For the Appellant : Sh. Kamal Sawhney, Sr. Standing Counsel. For the Respondent : Sh. Vineet Bhatia and Sh. Puneet Rai, Advocates. ORDER Mr. Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee with export turnover greater than Rs.10 crores, to be further increased by an amount which bears to 90% of the sum in Section 28(iiid), the same proportion as the Export Turnover bears to the Total Turnover of the business, provided the assessee could prove certain requirements with necessary evidence. In accordance with this amendment, the AO completed reassessment proceedings for the three assessment years (i.e. AYs 2001-02 and 2002-03 by orders dated 19.9.2007 and AY 2003-04 by order dated 1.3.2006) under Section 148 of the Act. 4. The amendment was challenged subsequent to the AO s orders and by the decision of the Gujarat High Court in Avani Exports v. CIT, Rajkot: [2012] 348 ITR 319 (Gujarat) delivered on 02.07.2012, it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat High Court to decide the matter of Constitutional validity of the amendment to preclude conflicting judgments being rendered by various High Courts. Thus, the assessee argues that no appeal under Section 260A is maintainable. The respondents also submit that the appellants did not challenge the order of the ITAT for having condoned the delay, in the grounds of appeal and thus, it is not open to the Revenue to argue the same as a grievance. 8. This Court has considered the submissions of both parties. The law on the question of whether a litigant can take advantage of a decision in another litigation belatedly, was made clear in Tilokchand Motichand Ors. vs H.B. Munshi Anr, [1969] 2 SCR 824, by the majority comprising Hidayat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Act were unconstitutional. The question is: can the petitioner in this case take advantage, after a lapse of a number of years, of the decision of this Court? He moved the High Court but did not come up in appeal to this Court. His contention is that the ground on which his petition was dismissed was different and the ground on which the statute was struck down was not within his knowledge and therefore he did not know of it and pursue it in this Court. To that I answer that law will presume that he knew the exact ground of unconstitutionality. Everybody is presumed to know the law. It was his duty to have brought the matter before this Court for consideration. In any event, having set the machinery of law in motion h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertained. But what is happening now is that the duty which has been paid under a proceeding which has become final long ago - may be an year back, ten years back or even twenty or more years back - is sought to be recovered on the ground of alleged discovery of mistake of law on the basis of a decision of a High Court or the Supreme Court. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee's case a similar point is decided in favour of the manufacturer/assesses. [emphasis supplied] 10. In this case, the reassessment orders of the AO were made on 1.3.2006 and 19.9.2007 on the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take an equal claim to benefiting from the subsequent outcome of litigation pursued by another assessee, since its own proceedings before the income tax authorities attain finality, when it refrains from pursuing any challenge. For this reason, even the possibility of an appeal against Avani Exports (supra) pending before the Supreme Court does not affect the opinion of this Court. This is because the possibility of the assessee being disadvantaged by the outcome of the appeal in Avani Exports (supra), and thus being treated unequally from the set of litigants in Avani Exports (who may benefit from the outcome of the appeal) is one that rightfully weighs against the assessee for the reason underlined above. 12. It would be useful at this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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