9911796707
TMI Blog2019 (5) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cr. Should be treated similarly. This order is in substitution of the judgment in Appeal. - W.A.(MD)Nos.422 to 436 of 2019 And C.M.P.(MD)Nos. 3551 to 3579 of 2019 - - - Dated:- 28-3-2019 - Dr. Justice Vineet Kothari And Mrs. Justice T.Krishnavalli For the Appellants : Mrs.S.Srimathy For the Respondents : Mr.V.Kathirvelu, Addl. Solicitor General of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 the said matters on 02.07.2012 and following the same, the learned Single Judge of this Court disposed of the writ petitions, with the following observations: In all these Writ petitions, the Taxation Laws Amendment Act, 2005 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive 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. 3. It is admitted that the issue involved in the present Writ petitions are identical to the writ petitions which were disposed of by the Gujarat High Court. Keeping in mind that the Supreme Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 year and those exporters whose exports turn over is more than ₹ 10 Crores per annum. Insofar as entitlement of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention 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, accordingly, quash the impugned amendment only to this extent that the operation of the said section could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 the same terms. Accordingly, we dispose of the present Writ Appeals on the same terms. No order as to costs. Consequently, connected Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
