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TMI Blog2023 (6) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. [ 2022 (10) TMI 617 - SUPREME COURT ] up held the disallowance made u/s 36(1)(va) - HELD THAT:- We find that the Hon'ble Supreme Court in ACIT v/s Saurashtra Kutch Stock Exchange [ 2008 (9) TMI 11 - SUPREME COURT ] held that non consideration of the decision of the Hon'ble Jurisdictional High Court or the Hon'ble Supreme Court can be said to be a mistake apparent from record which can be rectified under section 254(2) of the Act. We further find that the Hon'ble Supreme Court in Saurashtra Kutch Stock Exchange [ 2008 (9) TMI 11 - SUPREME COURT ] also held that the judicial decision acts retrospectively and it is not the function of the Court to pronounce a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... INGH KARHAIL, J.M. The present Miscellaneous Application ( M.A. ) has been filed by the Revenue seeking recall of the order dated 05/08/2022, passed under section 254(1) of the Income Tax Act, 1961 ( the Act ) by the Co ordinate Bench of the Tribunal in assessee s appeal being ITA no.9045/Mum./2010, for the assessment year 2006-07, limited to the adjudication of ground No. 22, raised in assessee s appeal. 2. When the present M.A. was called for hearing neither anyone appeared on behalf of the assessee nor was any application seeking adjournment filed. Therefore, in view of the above, we proceed to dispose off the present M.A. ex-parte qua the assessee, after hearing the learned Departmental Representative ( learned D.R. ). 3. During the hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.22 raised in assessee s appeal. Subsequently, the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. (supra) held that payment towards employee s contribution to P.F. / E.S.I.C. after the due date prescribed under the relevant statute is not allowable as a deduction under section 36(1)(va) of the Act. On the basis of this decision rendered by the Hon'ble Supreme Court, the Revenue has preferred the present M.A. under section 254(2) of the Act. 5. We find that the Hon'ble Supreme Court in ACIT v/s Saurashtra Kutch Stock Exchange, [2008] 305 ITR 227 (SC) held that non consideration of the decision of the Hon'ble Jurisdictional High Court or the Hon'ble Supreme Court can be said to be a mistake apparent from record w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judicataor accounts that have been settled in the meantime. [Emphasis supplied] 44. It is no doubt true that after a historic decision in Golak Nath v. State of Punjab AIR 1967 SC 1643, 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 that this is an exception to the general rule of the doctrine of precedent. 6. The facts before the Hon ble Supreme Court in Saurashtra Kutch St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d No. 22, raised in assessee s appeal, on the basis of the subsequent decision of the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. (supra). Accordingly, the order dated 05/08/2022, passed by the Co ordinate Bench of the Tribunal in assessee s appeal for the assessment year 2006-07 is hereby recalled limited to the extent of adjudication of ground no.22. ITA no.9045/Mum./2010 Assessee s Appeal : A.Y. 2006 07 9. With the consent of the learned D.R., the corresponding appeal being ITA no.9045/Mum./2010, was taken up for hearing limited to the extent of adjudication of ground no.22 raised by the assessee. We find that the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. (supra) held that the payment towards employees' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the condition that it is deposited on or before the due date, is correct and justified. The non-obstante clause has to be understood in the context of the entire provision of Section 43B which is to ensure timely payment before the returns are filed, of certain liabilities which are to be borne by the assessee in the form of tax, interest payment and other statutory liability. In the case of these liabilities, what constitutes the due date is defined by the statute. Nevertheless, the assessees are given some leeway in that as long as deposits are made beyond the due date, but before the date of filing the return, the deduction is allowed. That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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