TaxTMI 
TaxTMI 
2024 (9) TMI 1808
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.... records and considered the facts of the case in the light of Hon'ble Apex Court binding decision in 'Checkmate Services Pvt Ltd. Vs CIT' [2022, 448 ITR 518] and the Ld. Co-ordinate Bench decision in 'DCIT Vs Ani Integrated Services Ltd.' [2024, 162 taxmann.com 889] 3. Rival parties have no dispute over nature of amount/expenditure debited & claimed in the return of income and their allowability u/s 36(1)(va) of the Act. Further both the parties do also not negate that deductibility of such amount/expense is not subject to the riders/provisions of section 43B of the Act. Both the parties also agrees that the ratio laid down by Hon'ble Apex Court in 'Checkmate Services' (supra) has settled the issue with respect to deductibility of such amount/expense only when it is paid within the due date prescribed under the respective PF/ESI Act and not otherwise. 4. Relying on 'Checkmate Services' the Revenue seeks to reverse the Tribunal's order thus pursues this MA to confirm the disallowance of amount/expenses of Rs.57,92,151/- deposited by the assessee to respective PF/ESI fund after the expiry of due date specified under the respective PF/ESI Act. The Revenue claims that the order o....
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....Vs Subodhchandra Patel' [2004, 265 ITR 445 (Guj)] vide para 8 have held otherwise that; 'non-consideration of a judgment of the jurisdictional High Court or the Supreme Court would always constitute a mistake apparent from the record, regardless of the judgment being rendered prior to or subsequent to the order proposed to be rectified'. This contrary to former 'CIT V India Cements Ltd.'(supra) hint sights the ratio that; the law laid down by Hon'ble jurisdictional High Court & Hon'ble Supreme Court in subsequent judgements would come into effect from the date of insertion of respective provisions and thus entitles the prejudiced party to seek rectification therefore. That is to state, the law declared by the Hon'ble Apex Court would apply retrospectively unless it is expressly stated to have prospective operation. 8. It is a trite law that, the Hon'ble Supreme Court does not enact the law, it only interprets it and its interpretation of a provision of law becomes the law of the land which comes into effect retrospectively from the date of its insertion & not from the date of its pronouncement. The Hon'ble Supreme Court being the Apex Constitutional Court of the Country ....
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....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 judicator accounts that have been settled in the meantime." (Emphasis supplied) 10. Though the facts before the Hon'ble Supreme Court in 'Saurashtra Kutch Stock Exchange Ltd.' (supra) were that, decision of Jurisdictional High Court was available, however, the attention of the Tribunal was not invited to it at the time of hearing/adjudication. Thus, in these circumstances, the aforesaid findings were rendered by the Hon'ble Supreme Court and the decision of the Tribunal in recalling its earlier order u/s 254(2) of the Act was affirmed. However, the moot issue in the present MA arises for our consideration 'as to whether a subsequent decision of the Hon'ble Supreme Court [which is binding as per Article 141 of the Constitution of India] forms a basis for rectification u/s 254(2) where the original order u/s 254(1) of the Act was passed prior thereto? The prospective operation of law laid down by Hon'ble Apex Court would answer the question nega....
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.... 254(2) of the Act since the later decision of the Hon'ble Supreme Court operates retrospectively as if a law laid down by it u/a 141 of the COI. 13. Insofar as date of operation of judgment of 'Checkmate Services' is concerned; we are mindful to state that the Law declared by Hon'ble Supreme Court u/a 141 of the Constitution is normally to be assumed to be the law from inception. The prospective overruling is only an exception to this normal rule. Any decision rendered by Hon'ble Supreme Court, unless expressly indicated therein to be operative only prospectively, cannot be treated to be so, more so when it was a judgment overruling the judgments of various High Courts. The judgment thus erases all previous judgments rendered by various High Courts and operates as the law from inception of provision. This finds strength in the decision of 'M.A. Murthy Vs State of Karnataka' [2003, 7 SCC 517] 14. In view of the ratio laid in 'A Srimannarayana Vs Dasari Santakumri & Anr.' [2013, 9 SCC 496 (SC)] a decisions of co-ordinate bench rendered contrary to law laid down in 'checkmate services' cannot be followed as they do not state the law correctly. In view therefore we find much....