TMI Blog2004 (6) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... cultural produce produced by its members'. As the assessee was marketing the produce of its members, which was not necessarily produced by them, the deduction allowed to NAFED was withdrawn by resorting to the provisions of section 147/148 from assessment years 1989-90 to 1994-95. However, in their latest decision in the case of Kerala State Apex Cooperative Marketing Federation Ltd. v. CIT [1998] 231 ITR 814, the Hon'ble Supreme Court reversed its own decision and held that the society engaged in the marketing of agricultural produce of its members would mean not only such societies which deal with the produce raised by its members who are individual or societies and which are members thereof who may have purchased such goods from the agriculturists. Based on the latest decision of Supreme Court, the ITAT has concluded that the assessee was entitled for deduction under section 80(P)(2)(a)(iii). However, the decision of Supreme Court has become redundant as a result of amendment to section 80P vide Income-tax (Second Amendment) Act, 1998, which has amended the provisions of section 80P(2) with retrospective effect from 1-4-1968 (copy enclosed). The amended provisions read as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt judgment in National Agricultural Co-operative Marketing Federation of India Ltd. v. Union of India [2003] 260 ITR 548 the learned counsel pointed out that the Hon'ble Supreme Court therein has held that- (a) The amendment is a new law. It is not modifying the previously existing law. (b) This law does not apply to completed assessments. Therefore the new law cannot be applied for the assessment years in question which have been completed. The new law does not overrule the law laid down by the Supreme Court in Kerala State Co-operative Marketing Federation Ltd.'s case. There is no mistake apparent from record and consequently provisions of section 254(2) are not attracted. (II) No rectification can be done on the basis of the new law, as held by the Supreme Court in J.M. Bhatia, Appellate Asstt. CWT v. J.M. Shah [1985] 156 ITR 474, 478. (III) The Appellate Tribunal has restored certain grounds to the file of the Assessing Officer but by adjudicating them, he has lost jurisdiction over the case. (IV) For applying the new law foundational facts have to be determined which are not on record and as such a theoretical rectification cannot be done. In the absence of the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of apex societies were commenced and concluded on this basis. The situation continued till 1998 till this court reversed - Assam Cooperative [1993] 201 ITR 338 (SC) in Kerala State Co-operative Marketing Federation Ltd.'s case [1998] 231 ITR 814 (SC). Before the assessment year was over, by the 1998 amendment the word 'of was substituted with 'grown by'. In real terms, therefore, there was hardly any retrospectivity, but a continuation of the status quo ante. The degree and extent of the unforeseen and unforseeable financial burden was, in the circumstances, minimal and cannot be said to be unreasonable or unconstitutional." 9. The only restriction the Supreme Court in the aforesaid judgment put on the amendment was that the amending law did not seek to touch on the period of limitation. Where assessment have become time barred before the new law came into effect, the Assessing Officer cannot commence the proceedings on the basis of the new law. However, in the present application for rectification, the question of re-opening by limitation is not under our consideration. 10. Before us, the learned counsel has vehemently argued that the order of the Tribunal was passed on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no rectification can be done on the basis of new law. While going through this judgment, we find that the Court has held differently. The relevant extract in this judgment is produced as under:- "It is clear that the ground which was argued before the High Court and which seemed to find favour with it was that the question whether the Amending Act applied to assessments which were already completed was a highly debatable question and, therefore, it was not a case of an error apparent on the face of the record which entitled the Appellate Assistant Commissioner to rectify his predecessor's order but the question thus raised would, in our view, arise only if it is really a case of completed assessment in the literal sense of the word. It may be pointed out that this very aspect of the matter was pressed into service in Bombay Dyeing's case [1958] 34 ITR 143 (SC) and this Court while negativing the contention has taken the view that the assessment order that had been initially passed in that case (which was under section 18A(5) of the Indian Income-tax Act, 1922) could not be said to have become final in the literal sense of the word and in that behalf this court pointed out tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers not grown by them is not exempt. The scope of section 80P was widened by theApex Courtby rendering the judgment in Kerala State Co-operative Marketing Federation Ltd.'s case where the Court held that the only requirement of the section is that produce must belong to members and there is no requirement that it should also be grown by them. Tribunal allowed appellant's appeal in view of the later decision of theApex Court. Now if the foundational facts were not available how the respondent sought relief by applying the decision of Kerala State Co-operative Marketing Federation Ltd. and to which part of its income the said decision was applied. In case the assessee's plea is accepted, then one can conveniently argue that respondent's appeal had been allowed erroneously in 1998 but the same is beyond the scope of our duty nor we are engage in that exercise at present. This plea of the respondent however is a self-defeating plea. 15. The learned counsel has further relied on the decision of theApex Courtin the case of G.M. Mittal Stainless Steel (P.) Ltd. contending that past events could not be undone by the subsequent decisions. In this case Assessing Officer accepted assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 186 (Cal.). 17. This argument of the ld. counsel decorated with four citations is found to be out of context. Suffice to say that the very premise of this miscellaneous application is the retrospective amendment in statute and not the pronouncement of theApex Court. Therefore to state that two views of the Supreme Court were in existence will not make the issue debatable under such enactment. There is a marked difference between the retrospective legislation and a Supreme Court pronouncement. A retrospective legislation deems a mistake apparent from record whereas if a dispute exists on an issue, then a subsequent pronouncement of theApex Courtdoes not obliterate the existence of that dispute. This distinction has been provided at page 731 of the decision of the Hon'ble Calcutta High Court in Jiyajeerao Cotton Mills Ltd.'s case cited by the learned counsel before us. Relevant extract is reproduced as under:- "We are, however, unable to accept the contention of Mr. Pal that the principle of retrospective legislation is applicable to the decisions of the Supreme Court declaring the law or interpreting a provision in a statute. The law is laid down or a provision in a statute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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