TMI Blog2012 (10) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... I R.S.SYAL SHRI AMIT SHUKLA, JJ. Appellant by : Mr. Divesh I Shah Respondent by : Mr. K.G.Kutty ORDER PER AMIT SHUKLA (J.M.) : The present miscellaneous application has been filed by the assessee under Section 254(2), against the order dated 23.1.2009, passed by the ITAT in ITA No.7231/M/2005 6801/Mum/2005 for the quantum of assessment for the assessment year 2002-2003. The only grievance of the assessee in the present application is with regard to grounds No.1 2 in department s appeal and ground No.1 in assessee s appeal relating to disallowance made under Section 14A. 2. The ITAT has decided this issue against the assessee following the judgment of Special Bench in the case of M/s Daga Capital Manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchase of shares is also irrelevant. The question as to whether the onus is on the assessee or the Assessing Officer for brining an item of expenditure within S.14A is also irrelevant in view of Rule 8D. In the light of the decision of the Mumbai Special Bench cited supra, we refer these issues to the file of the Assessing Officer to decide the same according to the dictum laid down in the aforesaid decision of the Special Bench of the Tribunal, needless to say the assessee shall be heard in this matter. Accordingly, the grounds raised by the Revenue are allowed for statistical purposes. and in assessee s appeal is :- 7. The first ground in the assessee s appeal is directed against the CIT(A) s order in sustaining the addition ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of Section 14A, the Tribunal has decided the issue of disallowance u/s.14A by following the ratio laid down by the Special Bench in the case of Daga Capital Management Private Limited (supra). The said judgment has now been overruled by the Hon ble jurisdictional High Court vide order dated 12th August, 2010, in the case of Godrej and Boyce Mfg. Company Limited (supra), wherein the Hon ble High Court came to the following conclusion :- (v) The provisions of rule 8D of the Income-tax Rules which have been notified with effect from March 24, 2008, shall apply with effect from the assessment year 2008-2009: (vi) Even prior to the assessment year 2008-2009, when rule 8D was not applicable, the Assessing Officer has to enforce the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), wherein Their Lordships have observed and held 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 e rectified under Section 254(2). 41. A similar question came up for consideration before the High Court of Gujarat n Suhrid Geigy Limited v. Commissioner of Surtax, Gujarat, (1999) 237 ITR 834 (Guj). It as held by the Division Bench of the High Court that if the point is covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antime". (emphasis supplied) 44. It is no doubt true that after a historic decision in Golak Nath v. Union of India, (1967) 2 SCR 762, 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. Thus, it is settled principle of law that the decision of the jurisdictional High Court or the Hon ble Supreme Court rendered prior to or even subsequent to the order, will constitute m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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