AKIL KURESHI, J.

1. These petitions arise out of common background. They have been heard together and are being disposed of by this common judgment. For the purpose of this judgment, facts stated in Special Civil Application No.11781 of 2009 may be adopted.

2. Petitioner has challenged the vires of explanation inserted in Sub-Section (4) of Section 80IA of the Income-Tax Act, 1961 ('the Act' for short) by Finance Act No. 2 of 2009. Sub-Section (4) of Section 80IA of the Act, as is well known, provides for certain deduction of income from the eligible business and primarily pertains to infrastructure development. By adding the impugned explanation, the Legislature provided that that nothing contained in the Section shall apply in relation to a business referred to in Sub-Section (4) which is in the nature of a works contract awarded by any person and executed by an undertaking 'or enterprise. This explanation is added with retrospective effect from 1.4.2000. It is this amendment which has given rise to the present controversy.

3. The case of the petitioner is that it is engaged in the business of developing infrastructure. Till introduction of the impugned amendment, deductions were available to all undertakings and enterprises executing infrastructure development projects and it was not insisted that the assessee itself must develop such infrastructure facilities by investing its own funds. Such explanation, therefore, changes the very complexion of the deductions which were available for years together and, thus creates a levy with retrospective effect. The petitioner challenges such explanation on various grounds. In particular, the grievance is against the retrospective operation of such amendment.

4. On the other hand, the case of the o respondents, emerging from the affidavits filed is that there is clear distinction between a 'developer' and a 'contractor'. All along, the benefits intended under Section 80IA(4) of the Act were for a developer and not for a contractor. The explanation only puts the issue beyond controversy. The amendment was within the legislative competence of the Parliament. It is not o shown to be arbitrary or unreasonable.

5. On the basis of such facts, learned Counsel for 'the parties have made detailed submissions before us. Learned Senior Counsel Shri Soparkar, leading the charge on behalf of the petitioners, vehemently contended that the impugned explanation creates a levy for the first time. Such amendment is o given retrospective effect. Thus a levy which hitherto was not existing has been created with retrospective effect. No reasons are stated why such charge should be created with retrospective effect. No reasons are discernible from contemporaneous materials. The provision is thus harsh and unreasonable and would, therefore, fall foul of Article 14 of the Constitution. It was submitted o that the legal position which is surviving for years together would be discarded. The assesses who are engaged in the business of creating such infrastructure facilities would be denied the benefits of deduction under Section 80IA(4) of the Act by virtue of retrospective amendment. According to the Counsel, the provision also thus infringes Article 19(1)(g) of the Constitution.

5.1 It was contended that the period of retrospective operation is also very long. This would be one of the factors to be examined while judging the reasonableness of the taxing statute. It was submitted that though the Parliament has the power to enact a law, including taxing law, with retrospective effect, when such provision creates a levy for the first time, the same must be reasonable and the retrospectivity must be justified on the basis of reasons for which such amendment was necessary.

5.2 It was also contended that an explanation cannot enlarge the substantive portion of a Section. Viewed from this angle, according to the Counsel, the impugned amendment would alter the nature of deduction available under Sub-Section (4) of S