Nekkanti Sea Foods Limited, Having its Registered office V. Union of India,

WP/5677/2008

AI Insights

Nekkanti Sea Foods Limited filed a writ petition under Article 226 of the Constitution of India challenging the constitutionality of the third and fourth provisos to Section 80HHC(iii) of the Income Tax Act, 1961, as amended by the Taxation Laws Amendment Act, 2005. The petitioner argued that these provisions were ultra vires and violated Articles 14, 19(1)(g), and 300A of the Constitution. The case was heard by the High Court of Telangana, which considered the precedents set by the Supreme Court in the case of Avani Exports. The Supreme Court had clarified that the benefits under Section 80HHC were not applicable post 01.04.2005, leading to the equal treatment of exporters regardless of their turnover size.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 720850 (HC-TELANGANA)
• Appeal Type: Others
• Pronouncement Date: 29-11-2022
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax-S v. Avani Exports
• Laws Referred To: Constitution of India, Income Tax Act, 1961, Taxation Laws Amendment Act, 2005
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: G KUMAR; J V PRASAD
• Assessee Lawyers: ROHAN ALLOOR
• Keywords: Coercive Recovery; Disputed tax; Income Tax; Ultra Vires; Unconstitutional; Writ of Mandamus
• Section: 80HHC; 226

Judgement Text

"r I [ 32e5 ] HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) TUESDAY ,THE TWENTY NINTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY TWO PRESENT Between: Nekkanti Sea Foods Limited, Having its Registered office, at Flat No. c-4, Mahara Block Garden Towers, Masab Tank, Hyderabad - 500 028, Rep. by its Chairman, Mr. A. Subba Rao, S/o. Sri Late A. Venakteswara Rao, Aged 52 years, R/o. Hyderabad. ...PETITIONER AND 1. Union of lndia, Through Secretary, Ministry of Finance, Government of lndia, New Delhi. 2. Commissioner of lncome Tax (Appeals)-V, Visakhapatnam. 3. Assistant Commissioner of lncome Tax, Circle 16(1), Hyderabad. 4. Deputy Commissioner of lncome Tax, Circle 16(1), Hyderabad. 5. Recovery Officer, Range 16, Room No. 616, 6th Floor, Aayakar Bhavan, Basheerbagh, Hyderabad. ...RESPONDENTS Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, direction or order in the anture of Writ of mandamus declaring the third and fourth third provisiosof Section 80 HHC (iii) in sofar as it provides for conditions (a) and (b), therein as ultra vires and uncon stitutiona l, violative of the provisions of Articles 14, 19(1)(g) and 300A of the Constitution of lndia and strike down the said third and fourth provison of Section 80HHC (iii) as introduced by the Taxation Laws Amendment Act. 2005 l.A. NO: 1 OF 2008(WPMP. NO: 7368 OF 2008 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to restrain the Respondents from taking coercrve steps for recovery of the disputed tax for the assessment years 1999-2000,2001-2002.2002-2003, 2003-2004 and 2004-2005 pursuant made to section 80HHC of the lncome Tax ACT,1961 by the Taxaction law amendment Act 2005 and pass such other order (s) as this Hon'ble court deems fit and proper in the circumstances of the case THE HONOURABLE THE CHIEF JUSTICE UJJAL BHUYAN AND THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY WRIT PETITION NO: 5677 OF 2008 l.A. NO: I OF 20'15( WPMP. ltlO: 54664 OF 2015) Petition und€ r Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to pass an order expe,lrting the hearing of WP No. 5677 of 2008 Counsel for the Petitioner:SRl. ROHAN ALOOR Counsel for the Re:;pondent No.1:SRI.G.PRAVEEN KUMAR, DY SOLICITOR GENERAL OF lNDlrr Counsel for the Re:.pondent No.2to5: SRI.J.V.PRASAD(SC FOR INCOME TAX) The Court made th€ following: ORDER i I i I I l i THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN AND THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY qrRIT PETITION No.5677 of 2OO8 ORDER: (Per the Hon'ble the Chief Justice ujjal Bhugan) Heard Mr. Rohan A1oor, 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 3.r and the 4th provisos to Section BOHHC(iiiJ of the Income Tax Act, 1961 is ultra uires and unconstitutional. 3. This Court by order dated i7.03.2008 had admitted the u,rit 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, 2OO2-2OO3, 2OO3'2OO4 I I I 1 2 ! T HC] & CVBRJ W.P.No.5677 of 2O08 arrd 2OO4-2O05 on condition that petitioner deposited half of the disputed tax anrount on or before 31.03.2008. 4. In tlre hearing today, learned counsel for the petitioner submits that tt is issue was decided by the High Court of Gujarat uide the judgmr'nt and order dated 02.07.2012 in SCA.No.7926 of 2006. Revenu e challenged this judgment before the Supreme Court in Commissionr:r of Income Tax-S v. Avani Exportsl. 5. By t re aforesaid decision, Supreme Court upheld the judgment ol the Gujarat High Court but clarified the same holding that since beneiit of Section BOHHC of the Act was not available a-fter 01.04.20( )5, cases of exporters having turnover below Rs.l0 crores ar d those above Rs. 1O crores should be treated at paf. 6. [n th: abovt: circumstances, the present Writ Petition is disposed of in erms of the judgment of the Supreme Court in Avani Exports (supra). However, there shall be no order as to costs. t I t (2016) 16 Supremc Court Cases 74 I HCJ & CVBRJ W.P.No.5677 of 2OOB Miscellaneous applications pending, if any, in this Writ Petition shall stand closed. SD/.I.NAGALAKSHMI DEPU}Y.REGISTRAR L1) SECT1ON OFFICER 7 //TRUE COPY// To, 1 One CC to SRl. G.PRAVEEN KUMAR, DY SOLICITOR GENERAL OF INDIA ,for the State of Telangana, at Hyderabad [OPUCI. 2 The Secretary ,Union of lndia, Ministry of Finance, Government of lndia, New Delhi. 3 The Commissioner of lncome Tax (Appeals)-V, Visakhapatnam. 4 The Assistant Commissioner of lncome Tax, Circle 16(1), Hyderabad. 5. The Deputy Commissioner of Income Tax, Circle 16(1 ), Hyderabad. 6 The Recovery Officer, Range 16, Room No. 616,6th Floor, Aayakar Bhavan, Basheerbagh, Hyderabad. 7 One CC to SRl. ROHAN ALOOR ,Advocate {OPUCI 8 One CC to Sri. J.V.PRASAD (SC FOR INCOME TAX),Advocate [OPUC] 9 Two CD copies BM BS I HIGH COURI DATED:2911112022 ORDER WP.No.5677 of 2008 DTSPOSING ]F THE WRIT PETITION WITHOUT CoSTS ,1 .!- ,$., .r, \" J) o + (.: f .J, fn u ( l,-, i I I i i i i I I I t I I ! I I I t I t I ! "