KALPESH M NAGDA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE Writ Petition challenges an order dated 23 February 2007 passed by the Commissioner of Income Tax under Section 264 of the Income Tax Act, 1961 ("the Act"). The Petition involves a question, whether the Commissioner, whilst revising an order of the assessing officer under Section 264, could take into account a retrospective amendment made after the order of the assessing officer. The short facts of the case may be stated thus:

(2.) THE Petitioner filed his return of income for A.Y. 2003 -2004 on 25 November 2003 declaring total income of Rs.48,22,312/ - along with Form No. 10CCAC for deduction under Section 80HHC of the Act. The return was processed under Section 143(1) on 29 December 2003. Around that time, the availability of the benefit under Section 80HHC to assessees like the Petitioner was a matter of controversy and there was lack of clarity on the subject. The Petitioner, in the premises, filed a revised return on 31 October 2004, reducing export incentives of DEPB by Rs.30,09,163/ - with the following reason and reservations:

(3.) MR . A.R. Singh, learned Counsel for the Petitioner assessee, submits that the law applicable to the assessment, even if the same has been amended subsequent to the passing of the original assessment order but made retrospectively applicable to the particular assessment year, ought to be applied by the revising or appellate authority when it considers the revision or appeal, as the case may be. Learned Counsel relies on judgments of our Court in CIT Vs Mrs. Kamla S. Asrani and Anr, 1991 189 ITR 359 and Consolidated Pneumatic Tool Co. (India) Ltd. Vs CIT, 1994 209 ITR 277 as also CBDT Circular Nos. 725 : , dated 16.10.1995 and 14(XL -35) of 1995, C.No.13 (207) -II/50 dated 11.4.1955.