TaxTMI 
TaxTMI 
2010 (1) TMI 789
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....that the Tribunal in para 23 and 24 of its order held that duty draw back is inextricably linked with production cost of goods manufactured and, therefore, it is a trading receipt of the industrial undertaking and hence eligible for deduction u/s 80I. He relied on the recent decision of the Hon'ble Supreme Court in the case of Liberty India vs. CIT 317 ITR 218 and submitted that the Hon'ble Supreme Court has held that duty draw back and DEPB benefits are not derived from industrial undertaking. He submitted that the order should be rectified by following the decision of the Hon'ble Supreme Court. 3. The learned counsel for the assessee Mr. M.D. Inamdar submitted that the decision of the Supreme Court was rendered subsequently and ....
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....a judgment has been rendered by the jurisdictional High Court. In respect of the orders passed by the Tribunal subsequent to the decision of the jurisdictional High Court, if it does not follow the ratio of the judgment of the jurisdictional High Court, then it can be said that it has committed an error apparent on the face of the record. Therefore there was no mistake apparent from the record in the order of the Tribunal, within the meaning of section 254(2) of the Act, requiring rectification in view of the subsequent decision of the Madras High Court in CIT v. Nagapatinam Import and Export Corporation [1979] 119 ITR 444. Kuppuraj (M.K.) v. ITO [1995] 211 ITR 853 (Mad) - overruled." This case law is on the decision of jurisdicti....
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....case where the Tribunal failed to consider a decision of the coordinate bench cited by the assessee. In such circumstances, the Hon'ble Supreme Court held that by oversight the Tribunal missed the judgment, while dismissing the appeal filed by the assessee and that the rule of precedent as an important aspect of certainty in the rule of law and prejudice has resulted to the assessee since the precedent had not been considered by the Tribunal. The Tribunal was justified in rectifying the mistake. The Hon'ble Court analysed the scope of power of rectification u/s 254(2) and held that one of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice should cause to either of the parties appearing be....
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....ecision 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 it 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. 43. Salmond in his well-known work states; ".... The theory of case law is that 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 ....
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....iple of law, which was applicable across the board, namely, payment of advance tax made within the financial year, though not within the specified dates, should be treated as advance tax and, therefore, the assessee was entitled to interest on excess tax paid" and held that such a general interpretation of law, empower the Assessing Officer to rectify his order u/s 154. 13. In other words, the ratio laid down is that when the High Court lays down a principle of law which can be applied without the necessity of undertaking the exercise of verifying whether the principles of law laid down are applicable to the facts of the case or not, then the rectification u/s 154 is possible. In case when the facts have to be examined to come to a concl....