Dislaimer

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Tuesday, September 11, 2012


Legal Alert

No Substantive Amendment with Retrospective Operation

The Gujarat High Court (the “Court”) vide its order dated July 02, 2012 (“Order”) in the matter of Avani Exports v. Commissioner of Income Tax[1], quashed the retrospective operation of the Taxation Laws (Second Amendment) Act, 2005 (“Amendment”). The Amendment was quashed mainly on the grounds, (i) of it being arbitrary in nature and thus in violation of Article 14 of the Constitution of India; and (ii) that substantive amendment cannot be made with retrospective operation. The Court further held that such restriction with retrospective effect cannot be made to overcome the effect of the judicial decision, without taking recourse to the provision of the appeal, as prescribed by law.     
Background Facts and Allegations
·      Certain benefits of deduction under Duty Entitlement Pass Book Scheme (“DEPB”) were available to the assesses in terms of Section 80 HHC of the Income Tax Act, 1961 (“Act”), from the assessment year 1988-99 to the assessment year 2004-05. Section 80 HHC of the Act deals with deductions in respect of profits retained for export businesses. As per the revenue department, the DEPB were to be utilized by the importers to import, without paying duty. However, prior to the Amendment, there were many exporters, who were claiming deductions of the profits, earned by selling such DEPB credits in the market, which was not an import-export activity. Such exporters relied on the view rendered by the Income Tax Appellate Tribunal in the case of P.G. Enterprises Private Limited v. DCIT[2], which according to respondent was highly irrational and legally untenable. As per revenue department, the said order gave rise to a spat of litigation and huge arrears of taxes; hence the proposal to bring Amendment was moved and passed by the Parliament.
·      As an effect of the Amendment, the benefit of deduction of the profit earned by DEPB sale was denied retrospectively to exporters, who had turnover of more than Rs.10 crore. Amongst those exporters, who had turnover of more than Rs. 10 crore, only such exporters were allowed to claim benefit, who could have proved that they had an option to choose either duty drawback or DEPB, and they indeed chose DEPB. Further, the Amendment was sought to be enforced only against those exporters whose assessment proceedings were still pending, either before assessing officer or the appellate authority. Assesses whose assessments have become final were not required to comply with the above conditions and were allowed to avail the deduction under Section 80 HHC of the Act.
·      Petitioners claimed that by the Amendment, respondents have taken away these benefits retrospectively after the entire period of benefit was over on March 31, 2004. As per petitioners, they settled their affairs based on availability of the said benefit up to March 31, 2004. Petitioners had sought quashing of the Amendment inter alia on the following grounds:
§  The Amendment grants conditional benefits selectively to certain assesses, discriminating between the assesses falling in the same class, which is violative of Article 14 of the Constitution of India.
§  The conditions stipulated by the Amendment under Section 80 HHC are arbitrary, capricious, unjust and discriminatory, thereby violating both Articles 14 and Article 19(1)(g) of the Constitution of India.
§  Substantive amendment cannot be made with retrospective operation.

 Rulings
·         Negating the contention of the petitioner that the condition which required only such dealer to pay higher tax, whose export turnover was beyond certain limit should be held discriminatory, Court held that the classification based on export turnover is a recognized way of classification throughout the world. The dealers having higher turnover are in a position of economic superiority by reason of their volume of business, therefore they form a class by themselves. They cannot be treated on a par with comparatively small dealers.
·         However, the Court accepted the contention of the petitioners that the condition which provides for the deduction under Section 80 HHC to be claimed by only such assesse, whose assessment has become final, violates Article 14 of the Constitution of India. Court observed that in the matter of completion of assessment, the assesses had little role to play. After the assesses had submitted their returns within the time fixed by law, if for any reason the revenue department delayed in finalizing the assessment, revenue department, on account of its own delay cannot deprive one class of assessees of the benefits of the deduction. Court held that there was no rationale nexus of such classification with the object of the Amendment, and, therefore, such classification failed the test of Article 14 of the Constitution of India, being a case of ‘palpable arbitrariness’. 
·         Accepting the contention of the petitioner that Substantive amendment cannot be made with retrospective operation, the Court made following observations:
after giving a benefit to the assesse, such benefit can definitely be curtailed but the same must be effective from a future date and not from an earlier point of time. Court further observed that if after inducing a citizen to arrange his  business in a manner with a clear stipulation that if the existing statutory conditions are satisfied, he would get the benefit of taxation and thereafter, the revenue department withdraws such benefit and imposes a new condition which the citizen at that stage is incapable of  complying, whereas if such promise was not there, the citizen could have arranged his affairs in a different way to get similar or at least some benefit, such amendment must be held to be arbitrary.
·         Making certain important observations on the act of legislature of passing retrospective amendment, so as to correct the wrong order of the tribunal, Court observed that the revenue department had the right to challenge the decision of the tribunal before the  higher forum, but without challenging the decision of the tribunal before High Court or Supreme Court, the revenue department cannot curtail such benefits by proposing amendment and incorporating a new provisions in the statute from an anterior date. Court held that curtailment with retrospective effect cannot be made for overcoming the effect of a judicial decision without taking recourse to the provision of appeal prescribed by law.
·         For the forgoing reasons, the Court quashed the Amendment, only to the extent that the operation of the Amendment could be given effect from the date of the Amendment and not in respect of earlier assessment years.
Analysis
·         The Order should be welcomed not only because it provided much needed breather to the exporters but also in the light of the various retrospective amendments made every year through finance act, just to overcome adverse judicial interpretations. The Court categorically has held that retrospective amendment cannot be made to overcome adverse judicial decision. As the government is certain to appeal against the Order in the Supreme Court, it will be interesting to wait and watch the Supreme Court’s verdict. 
·         Further, the Order is significant in wake of recent retrospective amendment made by Government of India to nullify Supreme Court’s verdict in the Vodafone judgment. Through the retrospective amendment introduced in the Budget 2012-13, Government of India had sought to tax indirect transfer of Indian assets overseas. This retrospective amendment alarmed both domestic industry as well as foreign investors.        
          

[1] 2012-ITS-1390-HC; [2012] 23 taxmann.com 62 (Gujarat)
[2] (2005) 93 I.T.D. 138 (Del.)

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