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TMI Blog2010 (2) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... p Card. Referring to the decision of the Hon'ble Bombay High Court in the case of CIT vs. M/s. Techno Shares and Stock Ltd., vide Income Tax Appeal No. 971 of 2006 decided on 11th September, 2009, he submitted that the Hon'ble High Court has decided the issue in favour of the Revenue and against the assessee by holding that the BSE Membership Card is not any one of the items of intangible items listed in section 32(1)(ii) of the Income-tax Act, 1961 (the Act) and therefore, depreciation cannot be allowed on the value of the BSE Membership Card. In view of this decision by Hon'ble Bombay High Court, the learned DR submitted that the Tribunal should rectify its order and hold that the disallowance of depreciation on BSE Membership Card claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision rendered in the case of Saurashtra and Kutch Stock Exchange (supra) was a judgement consisting of 2 Member Bench whereas the decision rendered in the case of Mepco Industries Ltd. (supra) was a decision rendered by a Bench comprising of 3 Judges. He accordingly argued that the later decision should be followed. Relying on a number of other judicial decisions, he submitted that the subsequent decision rendered by a higher forum will not constitute a mistake apparent from record on an issue which was debatable as on the date when the decision was rendered by the Tribunal. He accordingly submitted that the MA filed by the Revenue should be dismissed. 5. We have considered the rival submissions made by both the sides and the var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both- the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified under s. 254(2). A similar question came up for consideration before the High Court of Gujarat in Suhrid Geigy Ltd. vs. Commr. of Surtax (supra). It was held by the Division Bench of the High Court that if the point is covered by a decision of the jurisdictional Court rendered prior or even subsequent to the order of rectification, it could be said to be "mistake apparent from the record" und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive overruling '. It is based on the philosophy: "The past cannot always be erased by a new judicial declaration". It may, however, be stated that this is an exception to the general rule of the doctrine of precedent. Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality. In S. Nagaraj and Ors. vs. State of Karnataka, 1993 Supp (4) SCC Sahai J. stated: "Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in rectifying the mistake, the High Court was not wrong in confirming the said order. Both the orders, therefore, in our opinion, are strictly in consonance with law and no interference is called for." Thus, it is clear from the aforesaid observations that it makes no difference whether the decision of Jurisdictional High Court was rendered prior to or after the order of the Tribunal and that such decisions always act retrospectively. 6. With regard to the next contention that the decision of Hon'ble Supreme Court in the case of Mepco Industries Ltd. (supra) is applicable to the facts of the present case, we are of the view that the same cannot be accepted. The issue in the case of Mepco Industries (supra) was with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sense that it was not obvious and that it required a long drawn process of reasoning or where two opinions were possible. As already stated, in the present case after decision of Hon'ble Bombay High court, there is no dispute or debate with regard to allowability of depreciation on BSE card. We are therefore of the view that the decision in the case Mepco Industries Ltd. (supra) will not be of any assistance to the plea of the assessee before us. We are therefore of the view that Miscellaneous Application of the revenue should be allowed and accordingly, the same is allowed. 7. The result will be that the appeal filed by the revenue before the Tribunal will stand allowed and the disallowance of depreciation on BSE membership card ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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