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TMI Blog2012 (6) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... se to the present writ petition and which are necessary for a decision in this writ petition are very few. By virtue of an order dated 31.03.2008, the Income Tax Appellate Tribunal disposed of the said ITA Nos. 3584 to 3586 (Del)/2007 by following the decision of the Supreme Court in the case of Virtual Soft Systems Ltd. vs. Commissioner of Income Tax, Delhi-I : (2007) 289 ITR 83, wherein the Supreme Court held that no penalty for concealment can be imposed under Section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as „the said Act‟) if there is no tax payable by the assessee on account of the assessments being made in respect of a loss return. The Tribunal was of the view that since the decision of the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.03.2008 had been based entirely on the decision of the Supreme Court in Virtual Soft Systems Ltd. (supra)and the latter decision had been subsequently overruled by a larger Bench of the Supreme Court in Gold Coin (supra), there was a mistake apparent on the face of the record and, therefore, the order dated 31.03.2008 needed to be rectified. We may point out that the application for rectification under Section 254(2) was filed within four years from the date of the order, i.e. 31.03.2008. As such, there is no issue with regard to limitation insofar as the application is concerned. 5. The Tribunal passed the order dated 06.02.2009 which is impugned before us. The order reads as under:- "1. In this case, the Tribunal had passed the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s order cannot be regarded as one which had a mistake apparent on the record inasmuch as on 31.03.2008, the date on which the order was passed by the Tribunal, it was the decision of the Supreme Court in Virtual Soft Systems Ltd. (supra) which held the field. The Tribunal did not commit any mistake by following the said decision in Virtual Soft Systems Ltd. (supra), which was the law as declared by the Supreme Court on that date. He submitted that a subsequent view taken by the Supreme Court by a larger Bench in the case of Gold Coin (supra), would not make the decision of the Tribunal rendered on 31.03.2008 being regarded as a mistake, because, at that point of time, the decision of the Supreme Court in Gold Coin (supra) was not there. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectification, it could be said to be a "mistake apparent from the record" under Section 254(2) of the Act and could be corrected by the Tribunal. 42. In our judgment, it is also well-settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a `new rule' but to maintain and expound the `old one'. In other words, Judges do not make law, they 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court? And, how can the fact that the Supreme Court decision was subsequently overruled by a larger Bench of the Supreme Court, render the said decision of the Tribunal to be regarded as a „mistake apparent from the record‟? But, these questions, raised by the learned counsel for the petitioners, have been fully answered by the Supreme Court in its decision in Saurashtra Kutch Stock Exchange (supra). The Supreme Court held that a judicial decision acts retrospectively. Judges do not make law they only discover or find the law. Thus, where a decision of the Supreme Court overrules an earlier decision, the views expressed in the later decision would have to be regarded as having always been the law. 10. The overrul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do so and has allowed the assessee a reasonable opportunity of being heard : Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees. xxxx xxxx xxxx xxxx" 12. Clearly, a time limit of four years from the date of the order has been prescribed in respect of the exercise of the power of rectification of a mistake apparent from the record. There is absolutely no doubt that had an appeal or other proceeding been pending in respect of the order of the Tribunal in this case, when the decision in Gold Coin (supra) was rendered, that decision would have to be followed. But, as it happens, no appeal or other proceeding was pending. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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