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TMI Blog2019 (5) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... herefrom that challenge which was laid to the conditions contained in the said provisos by the respondent has succeeded. However, to make the position crystal clear, we substitute the direction of the High Court with the following direction: Having seen the twin conditions and since 80HHC benefit is not available after 1.4.05, we are satisfied that cases of exporters having a turnover below and those above 10 crores should be treated similarly. This order is in substitution of the judgment in appeal. In view of the aforesaid decision of the Supreme Court, the present controversy is no longer res intergra and therefore, the present Writ Appeals filed by the Union of India Income Tax Department, also deserves to be disposed of on sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding rupees ten crores during the previous year, the profits computed under clause (d) or clause (b) or clause (c) of this sub-section or after giving effect to the first proviso, as the case may be, shall be further increased by the amount which bears to ninety per cent of any sum referred to in clause (iiid) or clause (iiie) as the case may be, of section 28, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee. 3.Since the large number of petitions were filed in various High Courts upon a transfer petition, the Hon ble Apex Court transferred all the matters to the Hon'ble Gujarat High Court to be decided there. Accordingly, the Gujarat High Court decided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessees whose assessments were still pending although such benefit will be available to the assesses whose assessments have already been concluded. In other words, in this type of substantive amendment, retrospective operation can be given only if it is for the benefit of the assessee but not in a case where it affects even a fewer section of the assessee. 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 the amendment and not in respect of earlier assessment years of the assessees whose export turnover is above ₹ 10 Crore. In other words, the retrospective amendment should not be detrimental to any of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal (C) No.9273 of 2013 and the same was disposed of by the Apex Court on 30th March, 2015, upholding the order passed by the Division Bench of the Gujarat High Court with the following modification, which is quoted in extenso, as under: 1.Amendment to Section 80HHC(3) of the Income Tax Act, 1961 (in short the Act ) was made by the Taxation Laws (Second Amendment) Act, 2005 with retrospective effect ie., with effect from 1st April 1992. By this amendment certain benefits were in fact extended to the exporters who are entitled to claim according to Section 80HHC of the Act. However, at the same time, the amendment also carved out two categories of exporters, namely, those whose export is less than ₹ 10 Crores per yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.On consideration of the entire materials on record, we, therefore, find substance in the contention of the learned counsel for the petitioners 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 Assesses whose assessments were still pending although such benefit will be available to the Assessees whose assessments have already been concluded. In other words, in this type of substantive amendment, retrospective operation can be given only if it is for the benefit of the Assessee but not in a case where it affects even a fewer section of the Assessees. 27.We, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection: Having seen the twin conditions and since 80HHC benefit is not available after 1.4.05, we are satisfied that cases of exporters having a turnover below and those above 10 crores should be treated similarly. This order is in substitution of the judgment in appeal. 6.With the aforesaid clarification all these SLPs including that of assessees filed against the judgment of M.P.High Court are disposed of. 6.In view of the aforesaid decision of the Supreme Court, the present controversy is no longer res intergra and therefore, the present Writ Appeals filed by the Union of India Income Tax Department, also deserves to be disposed of on same terms. Accordingly, we dispose of the present Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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