Nekkanti Sea Foods Limited, ... vs Union Of India,
2022 Latest Caselaw 6236 Tel

      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