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TMI Blog2012 (6) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... ial decision acts retrospectively. Judges do not make law they only discover or find the law. Thus, where a decision of the Supreme Court overrules an earlier decision, the views expressed in the later decision would have to be regarded as having always been the law. The overruling is, therefore, retrospective. In present case, Supreme Court decision in Gold Coin has to be regarded as the law as it existed when the order was passed by Tribunal, there is a clear mistake apparent from the record. Only limitation for correcting the mistake is that imposed by the provisions of Section 254(2) itself and that is only with respect to time. Since, application for rectification having been made in time, the order of the Tribunal recalling its earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax (Appeals) was liable to be upheld. Consequently, the appeals filed by the revenue before the Tribunal were dismissed. 3. The matter rested there insofar as the present assessee is concerned. The revenue did not file any appeal under Section 260A of the said Act before this Court. As noted in the order dated 23.05.2012, the appeals, perhaps, were not filed on account of the fact that the tax effect was less than the minimum amount prescribed by the Central Board of Direct Taxes for appeals to the High Court. 4. Be that as it may, a larger Bench of the Supreme Court considered the decision in the case of Virtual Soft Systems Ltd.(supra) and overruled the same by virtue of its decision in the case of Commissioner of Income Tax vs. Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that the decision in the case of Virtual Soft Systems Ltd. was reversed by the apex court in the case of CIT vs. Goldcoin Health Food Ltd. in Civil Appeal No. 2. While none appeared on behalf of the assessee for hearing on 6.2.2009 in response to the notice issued on 7.1.2009, the learned DR pointed out that the decision of apex court in the case of Goldcoin Health Food Ltd. (supra) was a binding precedence on all Tribunals and Courts throughout India and, therefore, constituted a sufficient ground for recalling the order with a view to decide the appeals on merit. We concur with the learned DR in this matter. Accordingly, the order is recalled with a view to decide the appeal of the revenue on merits. The Registry shall fix th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the order dated 31.03.2008 had attained finality and the same ought not to be disturbed. 8. On the other hand, Mr Sahni appearing on behalf of the revenue placed reliance on a decision of the Gujarat High Court in the case of Assistant Commissioner of Income Tax vs. Saurashtra Kutch Stock Exchange Ltd. : 262 ITR 146 (Guj.) as also on the decision of the Supreme Court in the case of Assistant Commissioner of Income Tax vs. Saurashtra Kutch Stock Exchange Ltd. : 305 ITR 227(SC). In the decision of the Gujarat High Court, it was specifically observed that non-consideration of a judgment of the jurisdictional High Court would always constitute a mistake apparent from the record, regardless of the judgment being rendered prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the meantime . (emphasis supplied) 44. It is no doubt true that after the historic decision in L.C. Golak Nath v. Union of India (1967) 2 SCR 762, this Court has accepted the doctrine of prospective overruling . It is based on the philosophy : The past cannot always be erased by a new judicial declaration. It may, however, be stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court. Now, the question is whether, in the context of a matter which has attained finality‟, it would entail re-opening of those cases. Clearly, where there is no pending proceeding and the matter has truly‟ attained finality, re-opening is not contemplated. Therefore, the question of retrospective overruling would have to be considered in the light of the fact as to where a matter has or has not attained finality. 11. For this purpose, it would be necessary to examine the provisions of Section 254(2) of the said Act, which reads as under:- 254. Orders of Appellate Tribunal (1) xxxx xxxx xxxx xxxx (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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