The above two writ appeals and the connected Income Tax Appeals preferred by the Revenue are being disposed of by this common judgment.

2. In C.R. Nos. 2072/93 and 2089/93, the petitioners challenged the constitutional vires of Section 143(1-A) of the Income Tax Act, 1961. The learned Single Judge by a common judgment dated 12th June, 1998 disposed of the Civil Rules holding, interalia, that the provisions in sub-section (l-A)(a) of Section 143 of the Income Tax Act, 1961, substituted by the Finance Act, 1993, is constitutionally valid, but the retrospective operation given to the provisions therein that additional income tax is to be imposed where the loss declared by an assessee is reduced as a result of adjustment is ultra vires the constitution. The learned Single Judge holding thus, quashed the orders/intimations issued by the Revenue imposing additional income tax under the aforesaid sub-section.

3. We have heard Mr. K.P. Sharma, learned counsel for the Revenue and Dr. A.K. Saraf, learned senior counsel for the respondents. The revenue had preferred the appeals challenging the decision of the learned Single Judge to the effect that an additional income tax would not be levied/ imposed with retrospective effect i.e. from 1.4.1989.

4. There being no challenge to the decision of the learned Single Judge about the constitutional validity of the provisions of sub-section (1-A) (a) of Section 143, this Court is only required to deal with the second limb of the order related to the retrospectivity of the provisions of the aforesaid sub-section substituted by the Finance Act, 1993. In order to appreciate this question, it is necessary to place hereinafter the facts which eventually culminated in the above two writ petitions.

5. In C.R. 2072/93, the writ petitioner as assessee filed a return on 27.12.89 indicating a total loss of Rs. 1,94,13,440/-inclusive of the loss sustained in the current year to the tune of Rs.79,36,126/- and unabsorbed loss of the previous year of Rs.1,14,77,3167-. the Deputy Commissioner of Income-Tax, Gujarat sent an intimation dated 14.2.90 accepting the said return showing a total loss of Rs. 1,94,13,4407- along with information that an amount of Rest. 60357- was refundable to the assessee. But the said decision was unsettled by the notice dated 20.10.92 issued under Section 154/155 of the Act wherein it was stated that the earlier intimation dated 14.2.90 required amendment for mistake apparent on record in allowing depreciation under Section 32 of the Act. The assessee, in his reply dated 25.11.92 and during the course of hearing, submitted that the depreciation amount of Rs.49,78,2257- claimed in the return be restricted to Rs. 1,08,267/- as the plants and machineries were not put to use during the period under assessment. The assessee further pleaded that they still suffered loss and no income tax was required to be paid by them much less the additional tax under the amended provisions of Section 143. The assessing officer by order dated 14.12.92 reduced the depreciation to the extent of Rs.48,69,988/- but rejected the assessee's contention that additional tax could not be levied under the aforesaid section since such tax is leviable only when the Income tax is payable on total income after adjustment. Aggrieved by the order of rejection, the assessee filed the Civil Rule for declaring the provisions of Section 143(l-A)(a) as ultra-vires and for quashing the order of rejection dated 14.12.92 imposing an additional tax of Rs.5,62,480/-. the same assessee in C.R. 2089/93 challenged the imposition of additional tax of Rs.8,09,290/- levied under Section 143(1-A) of the Act on similar grounds for the assessment year 1991-92.

6. The answer to the question raised in the Income Tax Appeals will follow the decision in the Writ Appeals. The questions are related to the correctness and validity of the decision of the revenue relying upon the decision of this Court recorded by the learned Single Judge