Rachna Infrastructure Pvt. Ltd v. Pr. Commissioner Of Income Tax 3 Or His Successor

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 16364 of 2021 =============================================RACHNA INFRASTRUCTURE PVT. LTD. VersusPR. COMMISSIONER OF INCOME TAX 3 OR HIS SUCCESSOR ============================================= Appearance: MR SN DIVATIA(1378) for the Petitioner(s) No. 1 for the Respondent(s) No. 1M R BHATT & CO.(5953) for the Respondent(s) No. 1NOTICE SERVED for the Respondent(s) No. 2============================================= CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALAandHONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 15/02/2022 ORAL ORDER (PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE) 1.By this writ application under Article 226 of theConstitution of India, the writ applicant challenges the validityof the order dated 19.06.2020 passed by the PrincipalCommissioner of Income Tax – 3, Ahmedabad, under Section264 of the Income Tax Act, 1961 (for short ‘the Act’) therebyrejecting the claim of deduction under Section 80IA(4) readwith Section 80A(5) of the Act for the A.Y. 2015 - 16. Theprayers sought for by the writ applicant are reproduced asunder: “(a)to issue a writ of certiorari or in the nature of certiorari orany other appropriate writ, orders or directions quashing andsetting aside the impugned order dated 19.06.2020 [Annex.-A]passed by the Respondent No.1 rejecting the claim of deductionu/s. 80IA(4) r.w.s. 80A(5) of the Act for A.Y. 2015-16 and directingthe Respondent No.1 allow the claim of deduction u/s. 80IA(4)r.w.s. 80A(5) of the Act.any other appropriate writ, orders or directions quashing andsetting aside the impugned order dated 19.06.2020 [Annex.-A]passed by the Respondent No.1 rejecting the claim of deductionu/s. 80IA(4) r.w.s. 80A(5) of the Act for A.Y. 2015-16 and directingthe Respondent No.1 allow the claim of deduction u/s. 80IA(4)r.w.s. 80A(5) of the Act. (b)to issue a writ of certiorari or in the nature of certiorari orany other appropriate writ, orders or directions holding theprovisions of section 80A(5) as ultra-virus the Constitution of Indiaor in alternative this provisions may be read down as applicableonly during the assessment proceedings before the assessingofficer and not restricting the powers of the Respondent No.1 orany appellate authority to consider the claim of deduction, reliefwhich is not claimed in the return of income filed by the assessee. (c)Pending the hearing and final disposal of this petition tomaintain status quo in the matter and ask the Respondent No.1and its subordinates not to take any action or to do anything infurtherance and pursuance of this impugned order. (d)To allow this Petition with cost. (e)To pass any further or other orders as the Hon’ble Courtmay deem proper in the interest of justice and in thecircumstances of the case.” 2.The facts, which emerges from the record, are reproduceas under: 2.1The writ applicant is a private limited company dulyregistered under the Companies Act and is engaged in thebusiness of developing infrastructure facilities whereby the writapplicant company claims to have made huge investmenttowards the purchase of machinery, equipments, motorvehicles and hiring labour force etc. 2.2The writ applicant company had filed return of income on30.09.2015 for the annual A.Y. 2015-16 thereby declaringincome to the tune of Rs.3,82,16,320/-. The case of the writapplicant was selected for scrutiny and notice was issuedunder Section 143(2) of the Act followed by notice undersection 142(1) of the Act. Upon verification of the record ofreturn of income as well as after examining documents filed bythe writ applicant, the assessment order came to be passed on09.11.2017 thereby making an addition under Section 36(1)(va) of the Act and interest thereon determining total income to the tune of Rs.3,85,48,984/-. 2.2The writ applicant company had filed return of income on30.09.2015 for the annual A.Y. 2015-16 thereby declaringincome to the tune of Rs.3,82,16,320/-. The case of the writapplicant was selected for scrutiny and notice was issuedunder Section 143(2) of the Act followed by notice undersection 142(1) of the Act. Upon verification of the record ofreturn of income as well as after examining documents filed bythe writ applicant, the assessment order came to be passed on09.11.2017 thereby making an addition under Section 36(1)(va) of the Act and interest thereon determining total income to the tune of Rs.3,85,48,984/-. 2.3Being aggrieved and dissatisfied by the aforesaidaddition made by the Assessing Officer, the writ applicantpreferred Revision before the Principal Commissioner ofIncome Tax-3, Ahmedabad by invoking section 264 of the Actessentially for the first time claiming deduction under section80IA of the Act which otherwise was never claimed nor allowedby the Assessing Officer. The Principal Commissioner of IncomeTax -3, Ahmedabad upon considering the aforesaid contentionof the writ applicant, called for the report from the AssessingOfficer. The report came to be submitted by the AssessingOfficer on 31.01.2020 which was taken upon record of therevision and due opportunity of hearing was given to the writapplicant to respond to the same. Ultimately, after consideringthe facts of the case, the report of the Assessing Officer andupon careful consideration of the submissions made by thewrit applicant, the Principal Commissioner of Income Tax -3,Ahmedabad, taking note of the various decisions of the HighCourts and the provisions law, was pleased to dismiss therevision preferred by the writ applicant company vide orderdated 19.06.2020. 2.4The Tribunal ultimately hold that the assessee had failedto make a claim for deduction under Section 80IA(4) in theoriginal return of income and having raised the claim for thefirst time in revision under Section 264 of the Act, thededuction cannot be allowed to the writ applicant – assessee inview of sub section (5) of Section 80A of the Act. Hence, thewrit applicant company has approached this Court essentiallychallenging the aforesaid order dated 19.06.2020 passed by the Principal Commissioner of Income Tax-3, Ahmedabad. 3.Before adverting to the principle relief sought for by thewrit applicant company, at the outset, we would like to firstdeal with the second relief sought for by the writ applicant asregards the challenge to section 80A(5) as ultra-virus theConstitution of India with a prayer to read down the aforesaidprovision. This Court, upon hearing Mr. S.N.Divatia, the learnedcounsel appearing for the writ applicant, vide order dated15.11.2021 was pleased to issue Notice calling upon therespondents to respond to the various contentions raised bythe writ applicant. The order dated 15.11.2021 reads thus: “1. The petitioner is before this Court by way of the petition underArticle 226 of the Constitution of India, it challenges the validity ofthe order passed under Section 264 of the Income Tax Act, 1961,whereby the respondent No.1 rejected the revision petitionseeking the relief by way of deduction under Section 801 IA (4) ofthe Income Tax Act, 1961 on the ground that in the originalassessment this was not claimed. 2. The grievance on the part of the petitioner is that norestrictions could be put by the Commissioner to its own revisionalpowers for giving succour to the assessees, where there are clearmistakes after the assessment is completed and because of whichthe assessee is over assessed. 3. Prayers sought for are as follow: “10.0… “1. The petitioner is before this Court by way of the petition underArticle 226 of the Constitution of India, it challenges the validity ofthe order passed under Section 264 of the Income Tax Act, 1961,whereby the respondent No.1 rejected the revision petitionseeking the relief by way of deduction under Section 801 IA (4) ofthe Income Tax Act, 1961 on the ground that in the originalassessment this was not claimed. 2. The grievance on the part of the petitioner is that norestrictions could be put by the Commissioner to its own revisionalpowers for giving succour to the assessees, where there are clearmistakes after the assessment is completed and because of whichthe assessee is over assessed. 3. Prayers sought for are as follow: “10.0… (a) to issue a writ of certiorari or in the nature ofcertiorari or any other appropriate writ, orders ordirections quashing and setting aside the impugnedorder dated 19.06.2020 (Annex.A) passed by theRespondent No.1 rejecting the claim of deduction u/s.80IA (4) r.w.s. 80A(5) of the Act for A.Y. 2015-2016 anddirecting the Respondent No.1 allow the claim ofdeduction u/s. 80IA(4) r.w.s. 80A(5) of the Act. (b) to issue a writ of certiorari or in the nature ofcertiorari or any other appropriate writ, orders ordirections holding the provisions of section 80A(5) asultra-virus the Constitution of India or in alternative,this provisions may be read down as applicable onlyduring the assessment proceedings before theassessing officer and not restricting the powers of theRespondent No.1 or any appellate authority to considerthe claim of deduction, relief which is not claimed in the return of income filed by the assessee. (c) Pending the hearing and final disposal of thispetition to maintain status quo in the matter and askthe Respondent No.1 and its subordinates not to takeany action or to do anything in furtherance andpursuance of this impugned order. (d) To allow this Petition with cost. (e) To pass any further or other orders as the Hon’bleCourt may deem proper in the interest of justice andthe circumstances of the case.” 4. We have extensively heard the learned advocate,Mr.S.N.Divatia, who has also sought to rely on the decision of theHitech Analytical Services vs. Principal Commissioner of IncomeTax, reported in (2017) 100 CCH 0174 (Guj.HC) and the decisionof the Bombay High Court rendered in case of EBR Enterprises &Anr. vs. Union of India & Anr., reported in (2019) 105 CCH 0086(MumHC) and other decisions. 5. Issue Notice, returnable on 07.12.2021. Over and above theregular mode of service, direct service is permitted through speedpost as well as e-mode. 4.Mr. S.N. Divatia, the learned counsel appearing for thewrit applicant has tried to persuade this Court by emphasizingthat the disallowance of the claim of deduction under Section80A(5) of the Act is patently illegal, bad in law and withoutjurisdiction. Mr. Divatia, has submitted that the insertion ofSection 80A(5) has resulted into giving inequal treatment toone set of assessees in similar situated facts in the sense thatthe class of assessees, who are otherwise eligible fordeduction, by virtue of insertion of sub section (5) of Section80A would made the claim of deduction redundant, thoughsuch assessees may otherwise fulfill all the other conditionsrequired to get deduction. Mr. Divatia, has tried to persuadethis Court by referring to Article 14 of the Constitution of Indiavis-a-vis the amendment brought in the statute book moreparticularly, by referring to explanatory notes to the provisionsof the Finance(2) Act, 2009 dated 03.06.2010. 5.We may note that so far as the aspect of determinationof constitutionality of statutory provision is concerned, it hasbeen held in number of decisions rendered by this Court aswell as the Supreme Court that in determining theconstitutionality of the provision, the Courts would be reluctantto declare a law invalid or ultra-virus on account ofunconstitutionality. The Courts would accept an interpretationwhich would be in favour of the constitutionality rather thanthe one which would render the law unconstitutional. It issettled legal position of law that declaring law unconstitutionalis one of the last recourse which the Court may opt for. At thisstage, it would be germane to mention that the Court wouldpreferably follow the principle of ‘reading down’ or ‘readinginto’ in order to make the provision effective, workable andensure the attainment of the object of the Act. The aforesaidbroad principles as regards the determination of theconstitutional validity of statutory provision has beenconsistently followed in canon of judgments. Fewpronouncement on the above principles as regards thedetermination of constitutionality of the statutory provision canbe illusinated in the case ofD.S. Nakara and Ors. v. Union ofIndia (UOI), reported in (1983) 1 SCC 305, a Constitution Benchof Supreme Court elucidated upon the practice of readingdown statutes as an application of the doctrine of severabilitywhile answering in affirmative the question whether differentialtreatment to pensioners related to the date of retirement quathe revised formula for computation of pension attracts Article14 of the Constitution. Some of the observations made in thatjudgment are extracted below: “66. If from the impugned memoranda the event ofbeing in service and retiring subsequent to specifieddate is severed, all pensioners would be governed bythe liberalised pension scheme. The pension will haveto be recomputed in accordance with the provisions ofthe liberalised pension scheme as salaries wererequired to be recomputed in accordance with therecommendation of the Third Pay Commission butbecoming operative from the specified date. It doestherefore appear that the reading down of impugnedmemoranda by severing the objectionable portionwould not render the liberalised pension scheme vague,unenforceable or unworkable. 67. In reading down the memoranda, is this Courtlegislating? Of course 'not’ When we delete basis ofclassification as violative of Article 14, we merely set atnaught the unconstitutional portion retaining theconstitutional portion. 68. We may now deal with the last submission of thelearned Attorney General on the point. Said the learnedAttorney-General that principle of severability cannot beapplied to augment the class and to adopt his words'severance always cuts down the scope, never enlargesit'. We are not sure whether there is any principle whichinhibits the Court from striking down an unconstitutionalpart of a legislative action which may have thetendency to enlarge the width and coverage of themeasure. Whenever classification is held to beimpermissible and the measure can be retained byremoving the unconstitutional portion of classification,by striking down words of limitation, the resultant effectmay be of enlarging the class. In such a situation, theCourt can strike down the words of limitation in anenactment. That is what is called reading down the measure. Weknow of no principle that 'severance' limits the scope oflegislation and can never enlarge it." The basis of thepractice of reading down was succinctly laid down inCommissioner of Sales Tax, Madhya Pradesh, IndoreOrs. v. Radhakrishan and Ors. MANU/SC/0334/1978(1979) 2 SCC 249 in the following words: That is what is called reading down the measure. Weknow of no principle that 'severance' limits the scope oflegislation and can never enlarge it." The basis of thepractice of reading down was succinctly laid down inCommissioner of Sales Tax, Madhya Pradesh, IndoreOrs. v. Radhakrishan and Ors. MANU/SC/0334/1978(1979) 2 SCC 249 in the following words: "In considering the validity of a statute the presumptionis in favour of its constitutionality and the burden isupon him who attacks it to show that there has been aclear transgression of constitutional principles. Forsustaining the presumption of constitutionality theCourt may take into consideration matters of commonknowledge, matters of common report, the history ofthe times and may assume every state of facts whichcan be conceived it must always be presumed that theLegislature understands and correctly appreciates theneed of its own people and that discrimination, if any, is based on adequate grounds. It is well settled that courtswill be justified in giving a liberal interpretation to thesection in order to avoid constitutional invalidity. Theseprinciples have given rise to rule of reading down thesection if it becomes necessary to uphold the validity ofthe sections." In Minerva Mills Ltd. and Ors. V. Union ofIndia (UOI) and Ors. MANU/SC/0075/1980 : (1980) 3 SCC625, the Court identified the limitations upon thepractice of reading down: 69. The learned Attorney General and the learnedSolicitor General strongly impressed upon us thatArticle 31C should be read down so as to save it fromthe challenge of unconstitutionality. It was urged that itwould be legitimate to read into that Article theintendment that only such laws would be immunisedfrom the challenge Articles 14 and 19 as do not damageor destroy the basic structure of the Constitution. Theprinciple of reading down the provisions of a law for thepurpose of saving it from a constitutional challenge iswell-known. But we find it impossible to accept thecontention of the learned Counsel in this behalfbecause, to do so will involve a gross distortion of theprinciple of reading down, depriving that doctrine of itsonly or true rationale when words of width are usedinadvertently. The device of reading down is not to beresorted to in order to save the susceptibilities of thelaw makers, nor indeed to imagine a law of one's likingto have been passed. One must at least take theParliament at its word when, especially, it undertakes aconstitutional amendment." This further clarified inDelhi Transport Corporation v. D.T.C. Mazdoor Congressand Ors. MANU/SC/0031/1991 : 1991 Supp (1) SCC 600.In his concurring opinion, Ray, J. observed: "On a proper consideration of the cases citedhereinbefore as well as the observations ofSeervai in his book 'Constitutional Law of India’and also the meaning that has been given in theAustralian Federal Constitutional Law by CoinHoward, it is clear and apparent that where anyterm has been used in the Act which per se seemsto be without jurisdiction but can be read down inorder to make it constitutionally valid byseparating and excluding the part which is invalidor by interpreting the word in such a fashion inorder to make it constitutionally valid and withinjurisdiction of the legislature which passed thesaid enactment by reading down the provisions ofthe Act. This, however, does not under anycircumstances mean that where the plain andliteral meaning that follows from a bare reading ofthe provisions of the Act, Rule or Regulation thatit confers arbitrary, uncancalised, unbridled,unrestricted power to terminate the services of apermanent employee without recording any reasons for the same and without adhering to theprinciples of natural justice and equality beforethe law as envisaged in Article 14 of theConstitution, cannot be read down to save thesaid provision from constitutional invalidity bybringing or adding words in the said legislationsuch as saying that it implies that reasons for theorder of termination have to be recorded. Ininterpreting the provisions of an Act, it is notpermissible where the plain language of theprovision gives a clear and unambiguous meaningcan be interpreted by reading down andpresuming certain expressions in order to save itfrom constitutional invalidity. 31. From the above noted judgments, the following principles can beculled out: (i) The High Court and Supreme Court of India areempowered to declare as void any law, whetherenacted prior to the enactment of the Constitution orafter. Such power can be exercised to the extent ofinconsistency with the Constitution/contravention ofPart III. (ii) There is a presumption of constitutionality in favourof all laws, including pre-Constitutional laws as theParliament, in its capacity as the representative of thepeople, is deemed to act for the benefit of the people inlight of their needs and the constraints of theConstitution. iii) The doctrine of severability seeks to ensure that onlythat portion of the law which is unconstitutional is sodeclared and the remainder is saved. This doctrineshould be applied keeping in mind the scheme andpurpose of the law and the intention of the Legislatureand should be avoided where the two portions areinextricably mixed with one another. iv) The court can resort to reading down a law in orderto it from being rendered unconstitutional. But whiledoing so, it cannot change the essence of the law andcreate a new law which in its opinion is more desirable.” 6.In light of the aforesaid legal position as regards thedetermination of constitutionality of statutory provision isconcerned, we are not inclined to go into the aspect of thevalidity of Section 80A(5) of the Act. 7.So far as the first relief which is sought for by the writ applicant as regards the challenge to the impugned orderdated 19.06.2020 passed by the Principal Commissioner ofIncome Tax-3, Ahmedabad is concerned, in our view, the sameis squarely covered by the decision of the Bombay High Courtin the case of EBR Enterprises vs. Union of India, reported in[2019] 107 taxmann.com 220. The question for considerationwhich arose before the Bombay High Court in the aforesaidcase was that whether the Commissioner was justified inexercise of powers conferred under Section 264 of the Act inrejecting the revision application more particularly, when theassessee had failed to raise the claim of deduction underSection 80-IB(10) and subsequently being raised before theCommissioner for the first time in revision. It appears that theattention of the Court was drawn to Section 80A(5) of the Actand similar contention was raised by the assessee therein. TheBombay High Court after considering the submissions of theassessee therein as well as taking note of sub section (5) whichwas inserted in Section 80A of the Act by Finance(2) Act, 2009with retrospective effect from 01.04.2003, ultimately held asunder: “5. As per this provision, where the assessee fails to make aclaim in his return of income for any deduction under Section 10Aor Section 10AA or Section 10B or Section 10BA or under anyprovision of the said Chapter – VI A under the heading “C.-Deduction in respect of certain incomes”, no deduction would beallowed to him under the said provision. In plain terms, this SubSection (5) of Section 80A of the Act imposes an additionalcondition for claim of deduction in relation to income under anyof the provisions mentioned therein. Apart from the requirementof fulfillment of individual set of respective conditions for thepurpose of claiming the concerned deduction, this plenarycondition requires that the claim ought to have made in thereturn of income by the assessee and if the assessee fails tomake such claim in the return of income, such deduction shall notallowed to him under the relevant provision. Admittedly, in thepresent case, the Petitioners had not raised any such claim in thereturn of income. In plain terms, the claim of the Petitionersunder Section 80-IB (10) of the Act would be hit by Sub Section (5) of Section 80A of the act. 6. We are conscious that in absence of the provisioncontained in Section 80A (5) of the Act, the Petitioners could havemaintained the claim of deduction even before the CIT for thefirst time in Revision Application, though no such claim was madebefore the Assessing Officer, if from the facts on record, thePetitioners could sustain the said claim in law. This is very clearfrom the series of Judgments of various High Courts. Referencecan be made to the decision of High Court of Gujarat in case of C.Parikh & Co. v. CIT [1980] 4 Taxman 224/122 ITR 610. In the saiddecision, the Court held that: (5) of Section 80A of the act. 6. We are conscious that in absence of the provisioncontained in Section 80A (5) of the Act, the Petitioners could havemaintained the claim of deduction even before the CIT for thefirst time in Revision Application, though no such claim was madebefore the Assessing Officer, if from the facts on record, thePetitioners could sustain the said claim in law. This is very clearfrom the series of Judgments of various High Courts. Referencecan be made to the decision of High Court of Gujarat in case of C.Parikh & Co. v. CIT [1980] 4 Taxman 224/122 ITR 610. In the saiddecision, the Court held that: “it is clear that under Section 264, the CIT is empowered toexercise revisional powers in favour of the assessee. In exerciseof this power, the CIT may, either of his own motion or on anapplication by the assessee, call for the record of any proceedingunder the Act and pass such order thereon not being an orderprejudicial to the assessee, as the thinks fit. Sub – ss. (2) and (3)of Section 264 provide for limitation of one year for the exerciseof this revisional power, whether suo motu, or at the instance ofthe assessee. Power is also conferred on the CIT to condone delayin case he is satisfied that the assessee was prevented bysufficient cause from making the application within theprescribed period. Sub-s. (4) provides that the CIT has no powerto revise any order under S. 264 (1) : (i) while an appeal againstthe order is pending before the AAC, and (ii) when the order hasbeen subject to an appeal to the Tribunal. Subject to the abovelimitation, the revisional powers conferred on the CIT under S.264 are very wide. He has the discretion to grant or refuse reliefand the power to pass such order in revision as he may think fit.The discretion which the CIT has to exercise is undoubtedly to beexercised judicially and not arbitrarily according to his fancy.Therefore, subject to the limitation prescribed in S. 264, the CITin exercise of his revisional power under the said section maypass such order as he thinks fit which is not prejudicial to theassessee. There is nothing in S. 264 which places any restrictionon the CIT’s revisional power to give relief to the assessee in acase where the assessee detects mistakes on account of whichhe was over assessed after the assessment was completed. Wedo not read any such embargo in the CIT’s power as read by theCIT in the present case. It is open to the CIT to entertain even anew ground not urged before the lower authorities whileexercising revisional powers. Therefore, though the Petitioner hadnot raised the grounds regarding under-totalling of purchasesbefore the ITO, it was within the power of the CIT to admit such aground in revision. The CIT was also not right in holding that theover-assessment did not arise from the order the assessment.Once the Petitioner was able to satisfy that there was a mistakein totaling purchases and that there was under- totalling ofpurchases to the tune of Rs.20,000, it is obvious that there wasover-assessment. In other words, the assessment of the totalincome of the assessee is not correctly made in the assessmentorder and it has resulted in over-assessment. The CIT would notbe acting de hors the IT Act, if he gives relief to the assessee in acase where it is proved to his satisfaction that there is over- assessment, whether such over-assessment is due to a mistakedetected by the assessee after completion of assessment orotherwise. In our opinion, the CIT has misconstrued the words“subject to the provisions of this Act” in S. 264 (1) and read arestriction on his revisional power which does not exist. The CITwas, therefore, not right in holding that it was not open to him togive relief to the Petitioner on account of the Petitioner’s ownmistake which it detected after the assessment was completed.Once it is found that there was a mistake in making anassessment, the CIT had power to correct it under S. 264 (1). Inour opinion, therefore, the CIT was wrong in not giving relief tothe Petitioner in respect of over-assessment as a result of under-totalling of the purchases to the extent of Rs.20,000.” 7.This was reiterated in case of Ramdev Exports v. CIT[2002] 120 Taxman 315/[2001] 251 ITR 873 (Guj.). This Courtalso in case of Danny Denzongpa v. CIT [2010] 7 taxmann.com81/194 Taxman 415 [2012] 344 ITR 166, has taken a similar view. 8.However, the Petitioners are faced with the statutoryprovision contained in Sub Section (5) of Section 80A of the Act.The Petitioners’ claim cannot therefore be accepted de hors thesaid statutory provision and ordinary principle of the wide powersof the CIT exercising revisional jurisdiction under Section 264 ofthe Act cannot be imported. What Sub Section (5) of Section 80Aof the Act mandates is that, if the assessee fails to make a claimin his return of income for any deduction under the provisionsspecified therein, the same would not be granted to the assessee.This condition or restriction is not relatable to the AssessingOfficer or the Income Tax Authority. This condition attaches tothe claim of the assessee and has to be implemented by theAssessing Officer, CIT or the Appellate Tribunal as the case maybe. There is no indication in Sub Section (5) of Section 80A of theAct as to why the restriction contained therein amounts tolimiting the power of Assessing Officer but not that ofCommissioner. 9.This issue can be looked from slightly different angle. Inabsence of the provision contained in Sub Section (5) of Section80A of the Act has held by various decisions of the High Courtsnoted above, the CIT could entertain a fresh claim in RevisionApplication even if the claim was not made previously before theAssessing Officer. Provision contained in sub-section (5) ofSection 80A is a statutory interdict which would prevent the CITfrom granting any such claim in exercise of his revisionaljurisdiction under Section 264 of the Act. As is often times stated,even High Court in exercise of Writ jurisdiction under Article 226of the Constitution of India would not issue directions contrary tostatutory provisions. Width of the powers of the CIT under Section264 of the Act would not permit him to ignore the requirement ofSection 80A(5) of the Act or allow the claim of an assessee inbreach of the condition contained therein. We are therefore not inagreement that the expression given by the Income Tax Tribunalin case of Madhav Construction (supra) holding that therestriction contained in Sub Section (5) of Section 80A of the Actis to restrict the power of Assessing Officer and not higher Income Tax Authorities. 10.The Petitioners having given up the challenge to theconstitutionality of the retrospectivity to Section 80A (5) of theAct, cannot bring in the concept of the reading down of theprovision in order to save if from unconstitutionally. In plainterms, our duty would be to enforce the provision contained inSub Section (5) of Section 80A of the Act, as it is stands in thestatue book. The decision in case of Goetze ( India ) Limited(supra) was rendered in different background. The Supreme Courtdid not have any occasion to interpret the provision of Section80A (5) of the Act in the context of the power of the CIT or theAppellate Tribunal. Income Tax Authorities. 10.The Petitioners having given up the challenge to theconstitutionality of the retrospectivity to Section 80A (5) of theAct, cannot bring in the concept of the reading down of theprovision in order to save if from unconstitutionally. In plainterms, our duty would be to enforce the provision contained inSub Section (5) of Section 80A of the Act, as it is stands in thestatue book. The decision in case of Goetze ( India ) Limited(supra) was rendered in different background. The Supreme Courtdid not have any occasion to interpret the provision of Section80A (5) of the Act in the context of the power of the CIT or theAppellate Tribunal. 11.In the result, we do not find any merit in the Writ Petition,the same is therefore dismissed.” 8.In light of the aforesaid decision rendered by the BombayHigh Court in similar facts and circumstances of the case, wefind no error of law in the impugned order dated 19.06.2020passed by the Principal Commissioner of Income Tax-3,Ahmedabad. 9.In the result, this writ application fails and is herebydismissed. Notice discharged. (J. B. PARDIWALA, J) (NISHA M. THAKORE,J) NEHA