CPT V24P7-Art1 (Content).pmd - Taxmann

Court and if such party is still aggrieved
by the order of the High Court, he should
move the Supreme Court.”
COURT POINTS OUT THE DISCONNECT
6. In their further note on the rationale of
such an amendment vis-a-vis the performance
of the role of executive the Court pointed out
the disconnect in the following words:
“25. In the case before us, it is not one
where the executive has failed to carry out
the object of the 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 case of
R. C. Tobacco (P.) Ltd. (supra) have no application
to the facts of the present case. The impugned
amendment granting benefit restricting it to
a class of assessees whose turnover is less
than ` 10 crore is permissible prospectively
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.”
THE GUJARAT HIGH COURT POINTS OUT
GREAT DISSATISFACTION AT HURRY
SHOWN BY GOVERNMENT
7. Pointing out great dissatisfaction in the manner
and at the hurry shown by the Government
• DT - Secs. 9, 28 & 80HHC
the Gujarat High Court held that the impugned
amendment was 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 assessee’s whose assessments were still
pending, although such benefit would be
available to the assessee’s whose assessments
had already been concluded. Further to this,
it held that 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 sections of
the assessees.
CONCLUDING REMARKS
8. It proves a point that the law of the land
should be equal for everyone – be it a small
one or a big one and, therefore, there is little
that the Government can now do to defend
its position even before the Supreme Court.
The High Court has now quashed the impugned
amendment only to the extent that the operation
of the said section can be given effect from
the date of amendment and not in respect of
earlier assessment years of the assessee’s whose
export turnover was above ` 10 crore. It would
be wise if the Government does not challenge
this decision in the Supreme Court and perhaps
it is time that the Government should learn
a lesson from this decision and roll back all
those amendments that it had incorporated in
the Income-tax Act, 1961 by the Finance Act
of 2012, which is again a show of retrospective
amendments that are introduced on account
of certain interpretations given by the benches
of Tribunals and High Courts in favour of the
assessee’s especially vis-a-vis section 9
amendments. Also it is a matter of rejoicing
for non-residents as well as resident taxpayers
as they can benefit from this decision and
challenge the retrograde laws in the Courts of
law, notwithstanding the position taken by
the Government henceforth.
August 1 to 15, 2012 u TAXMANN’S CORPORATE PROFESSIONALS TODAY u Vol. 24 u 35
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