THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT PETITION No.5677 of 2008
ORDER: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. Rohan Aloor, learned counsel for the petitioner
and Mr. G.Praveen Kumar, learned Deputy Solicitor General of
India for respondent No.1. We have also heard Mr. J.V.Prasad,
learned Standing Counsel, Income Tax Department for respondent Nos.2 to 5.
2. By filing this petition under Article 226 of the Constitution of India, petitioner has sought for a declaration that the 3rd and the 4th provisos to Section 80HHC(iii) of the Income Tax Act, 1961 is ultra vires and unconstitutional.
3. This Court by order dated 17.03.2008 had admitted the writ petition for hearing and passed an interim order to the effect that respondents were restrained from taking coercive steps for recovery of the disputed tax from the petitioner for the assessment years 1999-2000, 2001-2002, 2002-2003, 2003-2004 2 HCJ & CVBRJ W.P.No.5677 of 2008 and 2004-2005 on condition that petitioner deposited half of the disputed tax amount on or before 31.03.2008.
4. In the hearing today, learned counsel for the petitioner submits that this issue was decided by the High Court of Gujarat vide the judgment and order dated 02.07.2012 in SCA.No.7926 of 2006. Revenue challenged this judgment before the Supreme Court in Commissioner of Income Tax-5 v. Avani Exports1.
5. By the aforesaid decision, Supreme Court upheld the judgment of the Gujarat High Court but clarified the same holding that since benefit of Section 80HHC of the Act was not available after 01.04.2005, cases of exporters having turnover below Rs.10 crores and those above Rs.10 crores should be treated at par.
6. In the above circumstances, the present Writ Petition is disposed of in terms of the judgment of the Supreme Court in Avani Exports (supra). However, there shall be no order as to costs.
1 (2016) 16 Supreme Court Cases 741
3 HCJ & CVBRJ
W.P.No.5677 of 2008
7. Miscellaneous applications pending, if any, in this Writ Petition shall stand closed.
__________________________ UJJAL BHUYAN, CJ ___________________________ C.V.BHASKAR REDDY, J Date: 29.11.2022 KL