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TMI Blog2022 (9) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... ence which is it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise. Applying the ratio laid down in the above decision we have no hesitation to hold that substantial questions of law arise for consideration in this case, more particularly when the orders impugned suffer from utter perversity. As pointed out earlier on the date when the Miscellaneous Application was heard and decided by the learned Tribunal, there This issue has been decided by the Hon ble Supreme Court in the case of ACIT vs. Sourashtra Kutch Stock Exchange [ 2008 (9) TMI 11 - SUPREME COURT] wherein the Hon ble Supreme Court has held that an application for rectification was maintainable in such factual situation. The order of rejection of the application under Section 154 issued by the Centralised Processing Centre (CPC), Bangalore are quashed. Consequently, the order passed by the Assessing Officer computed the tax liability as per the intimation under Section 143 (1) and the assessment stands restored to the file of the Assessing Officer who shall review the assessment in terms of the observation made in the preceding paragraphs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 143(1) dated 2nd March, 2013 was issued computing the tax liability at Rs.4,40,070/-. Thereafter, the assessee filed the application for rectification under Section 154 of the Act. The same was rejected by the assessing officer by communication dated 23rd July, 2014 on the ground that tax has been correctly computed on the income return by the assessee and a fresh claim of change of income is not liable under Section 154 as the same is not a mistake apparent from the record. Thereafter the assessee filed another petition before the Deputy Commissioner of Income Tax (International Taxation) Circle 2(1). On 27.7.2015 this petition was filed by the Chartered Accountant of the assessee stating that on perusal of the client s record it was found that the assessee was an NRI during the period as he had to stay outside the Country due to his employment and he was outside the country for totally 210 days during the previous year relating to the assessment year 2012-13 and the income has been assessed without considering the assessee s NRI status. Therefore, it was requested that necessary rectification be made under section 154 of the Act. This request was rejected by the Deput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axation Transfer Pricing, Kolkata Ors. in W.P. No. 369 of 2014. The learned Tribunal could not have ignored the said decision and the same having been ignored that would be error which is apparent on the face of the record and the Tribunal ought to have exercised his power when an application was filed by the assessee under Section 154 and erroneously rejected the same by order dated 5th January, 2018. Therefore, the said order dated 5th January, 2018 also suffers from perversity. Unfortunately, the assessee has been very harshly dealt with by the Department, the Assessing Officer failed to note that the assessee was an individual and the return of income was filed by the Chartered Accountant and the Chartered Accountant going through the facts found the mistake which had been committed and immediately filed the revised return which has been duly acknowledged by the Department. Thereafter, the rectification application was filed which was dealt with by DCIT, International Taxation which was also rejected. In our considered view the Department could have taken a more reasonable stand, more particularly when the law on the subject is in favour of the assessee. That apart, there a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Identical issue was the substantial question of law which was decided in the appeal. It would be beneficial to refer to the operative portion of the said decision:- 3. We had admitted the appeal on 11th July, 2017 on the following question:- Whether on the facts and in the circumstances of the case and in law, income by way of salary which became due and has accrued to the assessee, a non-resident, for services rendered outside India and which is not chargeable to tax in India on the due or accrual basis, can be said to be chargeable to tax on the receipt basis merely because the foreign employers, on the instructions of the assessee, have remitted a part of amount of salary to the assessee s NRE bank account in India? Learned Advocate appearing for the appellant pointed out as to the scope of the appeal filed before this Court under Section 260A of the Act. It is the submission that the provision is akin to Section 100 of the Civil Procedure Code under which second appeals are entertained before this Court by placing reliance on the decision of the Hon ble Supreme Court in Ishwar Dass Jain Vs. Sohan Lal reported in (2000) 1 Supreme Court Cases 434. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court of Gujarat in Suhrid Geigy Ltd. v. Commissioner of Surtax [1999] 237 ITR 834. 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 a mistake apparent from the record under section 254(2) of the Act and could be corrected by the Tribunal. 42. In our judgement, 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. It a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put in differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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