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Retrospective operation of Section 80IA(4) is valid as per amendment

CLR Editorial Notes: In this case, a retrospective amendment made in Sec 80IA(4) of the IT Act, was challenged by the appellant, on the following grounds:

(i) it was a fresh levy of tax,

(ii) no reasons were given to support the retrospective levy,

(iii) the period of retrospective operation was long and so it violated Article 19(1)(g) of the Constitution

In the amendment in the Finance Act No.2 of 2009, an explanation was added to section 80IA(4) with retrospective effect from 1.4.2000 to provide that section 80IA(4) would apply to a business which is in the nature of a works contract awarded by any person and executed by an undertaking or enterprise. This note was challenged as mentioned above.

The High Court dismissed this petition and held:

“(i) An enactment can be questioned only on the ground of lack of competence or on the ground that the statute violates the fundamental rights or any other constitutional provisions. An enactment cannot be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. As all taxes are raised for public good, there is considerable latitude to Parliament in framing a taxing statute. There is always a presumption of constitutionality and the burden is on the Petitioner bringing such a challenge;

(ii) On merits, the argument that the Explanation below s. 80-IA (13) provides for a levy of tax which was hitherto unknown is not acceptable. It cannot be said that the Legislature in introducing the explanation materially changed the exemption which existed till such explanation was introduced. The explanation was introduced for the removal of doubts and is declaratory in nature. By the Explanation, the Legislature has distinguished between cases of developing/ operating etc from a works contract. It cannot be disputed that there is an intrinsic difference between developing an infrastructure facility and executing a works contract. The Explanation merely aims to clarify that deduction u/s 80IA(4) is not available in case of execution of works contract. Such an interpretation is possible even on the basis of the existing provisions of s. 80IA (4) (Radhe Developers 341 ITR 403 (Guj) referred)”

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The Full Case Document is available for download

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Main Case File :

  • Case File – Katira Construction Ltd vs. UOI (Gujarat High Court)

Reference Case File: 

  • Case File – CIT vs. Radhe Developers (Gujarat High Court)

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Tags: ARTICLE 19ConstitutionCpioDelhi High CourtEx post facto lawExplanationFinance Act

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