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TMI Blog2010 (1) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Mepco Industries Ltd. (2009 -TMI - 35015 - SUPREME COURT), the Miscellaneous Application of the Revenue has to be allowed. - ITA No. 3793/Mum/2005 - - - Dated:- 28-1-2010 - D.K. Agarwal, J. Sudhakar Reddy, JJ. S.M. Keshkamath for the Appellant M.D. Inamdar for the Respondent ORDER J. Sudhakar Reddy: By this Miscellaneous Petition the Revenue seeks rectification of the order of this Bench of the Tribunal in ITA No.3793/Mum/2005 dated 14-11-2006 on the issue whether duty draw back can be considered as income derived from the industrial undertaking itself for the purpose of computing relief u/s 80I. 2. The learned DR Mr. S.M. Keshkamath submitted that the Tribunal in para 23 and 24 of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om industrial undertaking for the purpose of computing relief u/s 80I. 5. Now the short point that arises for our consideration is whether a subsequent decision of the Hon'ble Supreme Court can be the basis of rectification as contemplated u/s 254(2). We first take up the case laws relied upon by the learned counsel for the assessee. 6. In the case of Sree Palaniappa Transports (supra), the Hon'ble Madras High Court has held as follows: "Held, that a Tribunal deciding a case on certain debatable issues, wherein there is no decision of the jurisdictional High court, could not be deemed to have made a mistake because subsequent to the decision of the Tribunal, a judgment has been rendered by the jurisdictional High Court. In respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not either by the apex court or by the jurisdictional High Court and, therefore, was not binding on the Tribunal. The Tribunal could take a different view and arrive at a different confusion. Hence, the Tribunal was not right in law in rectifying its appellate order under section 254(2) of the Act." 8. This decision relied upon by the assessee, is of no help because the Hon'ble Court was considering the decision of a non jurisdictional High Court. 9. We now examine the case laws in favour of the Revenue. 10. The Hon'ble Supreme Court in the case of Honda Siel Power Products Ltd. vs. CIT 295 ITR 466 (SC) were considering a case where the Tribunal failed to consider a decision of the coordinate bench cited by the assessee. In suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by a decision of the jurisdictional court rendered prior or even subsequent to the order of rectification, it could be said to be a "mistake apparent from record" under section 254(2) of the Act and could be corrected by the Tribunal. (emphasis ours). 42. In our judgment, it is also well-settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the court to pronounce a "new rule" but to maintain and expound the "old one". In other words, judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (2008) 306 ITR 392, the subsidy given by the Government was for repaying loans. Therefore, it was held that in each case one has to examine the nature of subsidy and that this exercise cannot be undertaken u/s 154 of the Act. While saying so, the Hon'ble Supreme Court also considered the decision in the case Kil Katogiri Tea and Coffee Estates Company Limited vs. Income Tax Appellate Tribunal and Ors. reported in 174 ITR 579 and also considered the judgment of the Calcutta High Court in the case of Jiyajeerao Cotton Mills Ltd. vs. ITO 130 ITR 710 and concluded that "The High Court laid down a principle of law, which was applicable across the board, namely, payment of advance tax made within the financial year, though not within the specif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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