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TMI Blog2015 (11) TMI 1788X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 08.02.2013 [ 2014 (1) TMI 435 - ITAT KOLKATA] passed in the case of Magnum Export, the Coordinate Bench of this Tribunal has also restored a similar issue to the file of the AO for deciding the same afresh after verifying the relevant facts from record and applying the relevant provisions of law. Set aside the impugned order of the CIT(Appeals) on this issue and restore the matter to the file of the AO for deciding the same afresh - Appeal of the assessee is treated as allowed. - I.T.A. No. 410/KOL/2013 - - - Dated:- 30-11-2015 - Shri P.M. Jagtap, Accountant Member and Shri S.S. Viswanethra Ravi, Judicial Member For The assessee : Shri Akhileshwar Sharma, Advocate For The Department : Shri M.K. Biswas, JCIT, Sr. D.R. ORDER Per Shri P.M. Jagtap:- This appeal filed by the assessee is directed against the order of ld. Commissioner of Income Tax (Appeals)-XIX, Kolkata dated 10.04.2007 for the assessment year 2001-02 and the solitary issue arising out of the same relates to the disallowance made by the Assessing Officer and confirmed by the ld. CIT(Appeals) on account of assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer at NIL and the total income of the assesese accordingly was computed by him at ₹ 38,28,581/- in the assessment completed under section 143(3) read with section 147 vide order dated 19.12.2006. 3. Against the order passed by the Assessing Officer under section 143(3) read with section 147, an appeal was preferred by the assessee before the ld. CIT(Appeals) challenging the disallowance made therein by the Assessing Officer on account of its claim of deduction under section 80HHC. During the course of appellate proceedings before the ld. CIT(Appeals), a request was made by the assessee for keeping its appeal in abeyance on the ground that the issue at the relevant time was subjudiced before the Hon ble Supreme Court under petition filed by the Indian Exporters Grievances Forum. However, keeping in view that there was no order passed by any competent Court staying the appellate proceedings before him, the ld. CIT(Appeals) did not accept the request of the assessee for keeping its appeal in abeyance and proceeded to dispose of the appeal of the assessee on merit. In this regard, he found that the disallowance made by the Assessing Officer on account of assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act was disallowed by the Assessing Officer merely on the ground on the Amendment Act. On filing of the Transfer Petition by the Union of India with a prayer to transfer all the petitions filed in various High Court, the Hon'ble Supreme Court was seized of the matter to the challenge to the constitutional validity of the Amendment Act. It was in this background that the Appellant requested the Commissioner of Incometax (Appeal) to keep the appeal in abeyance as the matter was sub-judice before the apex court. 7. The request of the Appellant to keep the appeal in abeyance, was not acceded by the CIT(A). The CIT(A) in its impugned order dated 10-04-2007 has dismissed the Appeal of the Appellant. While dismissing the appeal, the CIT(A) had made following observations in paragraph 8 of the impugned order: As regards ground no. 1, Shri Mundra agreed that the AO's action was in conformity with the provisions of the amended law. In fact, the appellant is challenging the validity of the retrospective amendment. This is an issue which cannot be decided in the proceedings before me. 8. The issue being challenge to the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely but the way it has been enacted, it takes away an enjoyed right of a class of citizen who availed of the benefit by complying with the requirements of the then provisions of law. 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 assessees 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 assesses. 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 earlier assessment years of the assessees whose export turnover is above ₹ 10 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tical facts and circumstances involved in the case of Magnum Export, the Coordinate Bench of this Tribunal has condoned a similar delay of 2078 days on the part of the assessee in filing its appeal for the similar reasons vide its order dated 08.02.2013 passed in ITA No. 1111/KOL/2012. This decision of the Coordinate Bench of this Tribunal cited by the ld. Counsel for the assesese thus is squarely applicable in the present case and this position is not disputed even by the ld. D.R. at the time of hearing before us, we, therefore, condone the delay on the part of the assessee in filing this appeal before the Tribunal and proceed to dispose of the said appeal on merit. 6. At the time of hearing before us, ld. Representatives of both the sides have agreed that the issue relating to the assessee s claim for deduction under section 80HHC has to go back to the Assessing Officer for deciding on merit keeping in view the relevant provisions of the law as are finally applicable to the year under consideration. It is also observed that vide its order dated 08.02.2013 (supra) passed in the case of Magnum Export, the Coordinate Bench of this Tribunal has also restored a similar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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