- (1.) IN these proceedings under Article 226 of the Constitution, the Petitioner has challenged the constitutional validity of the Taxation Laws (Second Amendment) Act, 2005 in respect of the insertion of clauses (iii)(d) and (iii)(e) to section 28 and the insertion of the third and fourth provisos to section 80HHC(3) of the Income Tax Act, 1961. On 3 -2 -2012, an order was passed by the Supreme Court in I.A. No. 2 in and Transfer Petition (C) No. 703 of 2011, recording that several cases on the issue were pending in various High Courts. The Supreme Court was of the view that it was appropriate if all the matters are decided by one High Court and accordingly directed that all matters which have been filed/transferred to the Supreme Court would be sent to the High Court of Gujarat. By a judgment dt. 2 -7 -2012, in Avani Exports v. CIT : (2012) 209 Taxman 59 (Guj)(Mag), a Division Bench of the Gujarat High Court disposed of the entire batch of matters and arrived at the following conclusion: 26. On consideration of the entire materials on record, we, therefore, find substance in the contention of the learned counsel for the Petitioners that the impugned amendment is 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 assessees whose assessments were still pending although such benefit will be available to the assessees whose assessments have already been concluded. In other words, 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 section of the assessees. 27. We, accordingly, quash the impugned amendment only to this extent that the operation of the said section could be given effect from the date of amendment and not in respect of earlier assessment years of the assessees whose export turnover is above Rs. 10 Crore. In other words, the retrospective amendment should not be detrimental to any of the assessees. Following the judgment of the Gujarat High Court, another Division Bench of this Court, by an order dt. 16 -8 -2012, Vijaya Silk House (Bangalore) Ltd. v. Union of India : (2013) 213 Taxman 63 (Bom)(Mag) disposed of a batch of petitions in terms of the judgment the Gujarat High Court. The Division Bench observed that keeping in mind of the fact that the Supreme Court had transferred all the matters to the Gujarat High Court in order to avoid confusion and difficulties in enforcing conflicting judgments of different High Courts, it was appropriate in those Writ Petitions to follow the judgment of the Gujarat High Court. In view of the judgment of the Division Bench of this Court dt. 16 -8 -2012, with which we respectfully concur, it would be appropriate for this Court to dispose of the Petition in terms of the judgment of the Gujarat High Court in Avani Exports (supra).
(2.) THE Petition is accordingly so disposed of. Rule is made absolute in the aforesaid terms. There shall be no order as to costs.;