AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (3) TMI 1540
X X X X Extracts X X X X
X X X X Extracts X X X X
....s passed on 20.09.2022 but copy of the order was received by PCIT-1, Nashik on 02.06.2023. Accordingly, the present MA was required to be filed on or before 31.12.2023, and in the instant case the present MA is filed by the Department on 22.07.2023 which is within the prescribed time limit. 3. After hearing Ld. Counsels from both the sides, we are of the considered opinion that the limitation to file MA starts not from the date of order of the Tribunal but from the date of receipt of the order of the Tribunal. Therefore, in our considered view, the present MA filed by the Department is within the prescribed time limit and is maintainable. Thus, we admit the present MA and proceed to adjudicate the grievance of the Department. 4. At the outset, Ld. DR submitted that the addition made u/s 36(1)(va) of the IT Act in respect of employee's contribution to PF and ESI deposited beyond the stipulated period under the respective Acts was required to be disallowed by virtue of judgment of Hon'ble Supreme Court in the case of Checkmate Services P. Ltd. & Ors. vs. CIT & Ors. (2022) 448 ITR 518 (SC) order dated 12-10-2022, as against, the same having been allowed by this Tribunal in the i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r while relying on a judgement which was held to be incorrect by Hon'ble Apex Court, may be subsequently. One cannot deny the truth that the overruled judgement was the basis of Tribunal's order, therefore in our opinion the Tribunal ought to recall the order if limitation permits. The above enunciation of law by the Hon'ble Supreme Court (supra) denying the benefit of deduction, has rendered the order u/s 254(1) erroneous necessitating its rectification in terms of section 254(2) of the Act. In this context, we refer to the observation made by Hon'ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd., 305 ITR 227 (SC) vide paras 40 to 43, as under :- "40. The core issue, 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 Hi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r dated 17.09.2024, wherein, under identical facts and similar circumstances, the Tribunal has allowed the MA filed by the Revenue by observing as under :- "2. We have heard the rival parties submission; and subject to the provisions of rule 18 of Income Tax Appellate Tribunal Rules, 1963 [for short 'ITAT, Rules'] perused the material placed on 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te of its pronouncement and not from inception i.e., law laid down by Hon'ble Jurisdictional High Court & Hon'ble Apex Court shall be prospective in operation, thus would give no right or entitlement to prejudiced party to seek rectification arising on there account. 7. On the other hand, subsequent to aforestated decision the Hon'ble Gujarat High Court in the case of 'CIT 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 pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te a sometime, 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 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ue/question formed in present MA is positive thus affirmative. In dealing with similar circumstances, the Hon'ble Delhi High Court in the case of 'Lakshmi Sugar Mills Co. Ltd. Vs CIT' [2012, 22 taxmann.com 300] held that where the Larger Bench of the Hon'ble Apex Court overrules its earlier decision on which the Tribunal relied on, then Tribunal is duty bound to rectify its earlier order u/s 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 f....