2023 (8) TMI 51

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.... the year 2005. Appellant was of the view that the set off in respect of HSD was available under the Maharashtra Value Added Rules 2005 (the Rules). On 4th January 2011 an investigation was carried out by the Sales Tax Authorities at appellant's place of business. The authorities disputed the admissibility of set off on the purchases of HSD on the ground that under Rule 54(b) of the Rules, the set off was barred. Appellant, therefore, on 3rd February 2011 filed an application under Section 56 of the Maharashtra Value Added Tax Act 2002 (the Act) for determination of disputed questions as to the admissibility of the set off on purchase of HSD. It is appellant's case that on 2nd December 2010, the Tribunal in its order and judgment in Gupta M....

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....bunal, which rejected appellant's claim that prospective effect be granted on the bar of set off on the purchase of HSD. Mr. Patkar submitted that as the High Court settled the law only on 17th August 2012, appellant should be permitted to claim set off until that date. We cannot accept that submission. 4. The Hon'ble Apex Court in Assistant Commissioner of Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC) has held that a judicial decision acts retrospectively. The Judges do not make law, they only discover or find the correct law. The law has always been the same and if a subsequent decision alters the earlier one, the later decision does not make a new law. It only discovers the correct principle of law ....

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.... 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 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; "(T)he 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 transa....