2023 (5) TMI 1461

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....ssion of the Revenue that the decision rendered by the Tribunal results in mistake apparent from record in view of the decision rendered by Hon'ble Supreme Court in the case of Checkmate India Services (P) Ltd. and Others Vs. CIT (Civil Appeal No. 2830 to 2833 of 2016, wherein it has been held that the disallowance of employees' contribution of PF & ESI is required to be made in terms of section 36(1)(va) of the I.T. Act, if they are not credited by the assessee to the employees' account in the relevant fund or funds on or before the due date prescribed in the relevant fund/act/rule etc. Hence, payments made after the due date prescribed in the relevant statue but before the due date prescribed under section 139(1) of the Act shall be l....

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.... therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified under section 254(2). 41. A similar question came up for consideration before the High Court of Gujarat in Suhrid Geigy Ltd.'s case (supra). 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 sai....

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....istoric 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. 45. Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality. 46. In S. Nagaraj v. State of Karnataka 1993 Supp. (4) SCC 595, Sahai, J. stated : "15. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The ....

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....on in exercising power under sub-section (2) of section 254 of the Act and in rectifying "mistake apparent from the record". Since no error was committed by the Tribunal in rectifying the mistake, the High Court was not wrong in confirming the said order. Both the orders, therefore, in our opinion, are strictly in consonance with law and no interference is called for. 48. For the foregoing reasons, in our view, no case has been made out to interfere with the order passed by the Income-tax Appellate Tribunal, Ahmedabad and confirmed by the High Court of Gujarat. The appeal deserves to be dismissed and is accordingly dismissed. On the facts and in the circumstances of the case, however, the parties are ordered to bear their own costs....