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TMI Blog2017 (5) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... e earlier assessment years of the assessees whose export turnover is above ₹ 10 crores. Therefore, in view of the above decision by the Hon'ble Gujarat High Court, the disallowance u/s 80HHC amounting to ₹ 1,66,77,703/-, which was made merely on the basis of the amended provisions of Section 80HHC, was rightly deleted, which does not need any interference on our part, hence, we uphold the same and dismiss the ground raised by the Revenue. - I.T.A. Nos. 3849 & 3850/DEL/2014 - - - Dated:- 5-5-2017 - Shri H. S. Sidhu, Judicial Member And Shri Prashant Maharishi, Accountant Member Department by : Sh. N.K. Bansal, Sr. DR Assessee by : None ORDER Per H. S. Sidhu, JM The Revenue has filed these two Appeals against the separate impugned Orders both dated 28.2.2014 passed by the Ld. CIT(A)-XXII, New Delhi relevant to assessment years 1999-2000 2004-05. Since the issues involved in these appeals are similar having identical facts, therefore, the appeals were heard together and are being disposed of by this common order for the sake of convenience and brevity. 2. First we deal with ITA No. 3849/Del/2014 for AY 1999-2000 wherein the following groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, therefore, we are deciding the present appeals exparte qua assessee, after hearing the Ld. DR and perusing the records. 8. We have heard Ld. Sr. DR and perused the relevant records available with us, especially the orders of the revenue authorities. We find that Ld. CIT(A) has elaborately discussed the issue in dispute vide para no. 8.1 to 8.6 in the impugned Order which reads as under:- 8.1 In this case, as against the returned income of ₹ 4,13,293/- the income was assessed u/s 143(3)/148 vide order dated 20.12.2006 at an income of Rs.l,70,91,000/- after making addition of Rs.l,66,77,703/- on account of disallowance of claim uls 80HHC in view of amended provision of Section 80HHC as per taxation law amendment 2005. The Appellant had stated before the Assessing Officer that as per the amended provisions, deduction u/s 80HHC was not available to the Assessee as against earlier claim of ₹ 1,66,77,703/- in the original Return of Income. It was stated by the Appellant that the amended provisions with retrospective effect from 01.04.98 were being contested before the Hon'ble Supreme Court by the Exporters Association but the decision was awaited an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibiting them from taking any action by taking aid of those provisos. 8.4 Pursuant to the order of the Hon'ble Supreme Court, the Hon'ble Gujarat High Court passed the order in case of Avani Exports vs. CIT, 348 ITR 391, quashing the retrospective amendment. The operative part of the order in the Para 25,26 27 of the judgment are as under :- 25. In the case before us, it is not one where the executive has failed to carry out the object of Parliament necessitating exercise of control by retrospective amendment what the executive ought to have achieved. In the present case, according to the Finance Minister presenting the Bill, a valid piece of legislation has been wrongly interpreted by the Tribunal. We have already pointed out that, according to the existing law, if a valid piece of legislation is wrongly interpreted by the Tribunal, the aggrieved party should move higher judicial forum for correct interpretation. As pointed by the apex court in the case of Pritvi Cotton Mills Ltd (supra), the Legislature does not possess or exercise power to reverse the decision in exercise of judicial power. Thus, we are of the view that the principles laid down in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to the extent that the operation of the said section could be given effect from the date of amendment and not in respect of the earlier assessment years of the assessees whose export turnover is above ₹ 10 crores. 8.6 In view of the above decision by the Hon'ble Gujarat High Court, the disallowance u/s 8OHHC amounting to Rs.l,66,77,703/-, which was made merely on the basis of the amended provisions of Section SOHHC, cannot be sustained and is hereby deleted. 8.1 On perusing the above finding of the ld. CIT(A), we find that the Hon'ble Gujarat High Court in the case of Avani Exports vs. CIT, 348 ITR 391 vide first Para of the Order has observed as under:- All these writ applications were taken up together pursuant to the order passed by the Supreme Court of India. By the said order, the apex court transferred these matters pending before various High Courts to this court for considering whether the severable parts of the third and fourth provisos to section 80HHC(3) of the Income-tax Act, 1961 ( the Act , hereafter), are ultra vires articles 14 and 19(1)(g) of the Constitution of India. By way of consequential relief, the petitioners have prayed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n only if it is for the benefit of the assessees but not in a case where it affects even a fewer section of the assessees. 27. We, accordingly, quash the impugned amendment only to this extent that the operation of the said section could be given effect from the date of amendment and not in respect of the earlier assessment years of the asses-sees whose export turnover is above ₹ 10 crores. In other words, the retrospective amendment should not be detrimental to any of the assessees. 8.3 We further note that the Hon'ble Gujarat High Court has held that the impugned amendment granting benefit restricting it to a class of assessees whose turnover is less than ₹ 10 crores is permissible prospectively but the way it has been enacted, it takes away an enjoyed right of a class of citizens who availed of the benefit by complying with the requirements of the then provisions of law. The Hon'ble Court has further held that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal, and at the same time, for depriving the benefit earlier granted to a class of the assessees whose assessments were still p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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