TMI Blog1988 (7) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... , by the Income-tax Officer, in exhibit P-2 order. The Commissioner of Income-tax (Appeals) upheld the plea of the assessee. In second appeal, the Appellate Tribunal, in exhibit P-4 order dated October 31, 1981, held that the belated payments are not to be taken into account as advance tax for the purpose of section 214 of the Income-tax Act, 1961, and so interest is inadmissible for such belated payments. The Tribunal held so, in view of the decision of this court in Sethu madhavan (A.) v. CIT [1980] 122 ITR 587. The appeal preferred by the assessee in Sethumadhavan's case [1980] 122 ITR 587 was heard along with other cases and a Bench of this court held that payments of advance tax made within the financial year but not within specified d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner as also counsel for the respondent/ Revenue. The assessing authority in exhibit P-2, as also the Income-tax Appellate Tribunal in exhibit P-4, have held that the assessee is not entitled to interest on the advance tax paid beyond the due date. It is common ground that this view is based solely on the decision of a learned single judge of this court in A. Sethumadhavan v. CIT [1980] 122 ITR 587. It is true that when the Tribunal rendered the decision (exhibit P-4) dated October 31, 1981, the decision of the single judge in Sethumadhavan's case [1980] 122 ITR 587 (Ker) was the law on the subject. Subsequently, on January 22, 1982, a Division Bench of this court reversed the said decision which is reported in Santha S. Shenoy v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 judicatae, or accounts that have been settled in the meantime." An order of assessment, based upon an interpretation or application of law which is ultimately found to be wrong in the light of judicial pronouncements rendered subsequently, discloses a mistake apparent from the record. When the court decides a matter, it does not make the law in any sense but al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understood, we are of the view that exhibit P-4 order, passed by the Appellate Tribunal in the appeal, discloses a mistake apparent from the record, namely, that the assessee is not entitled to interest on the advance tax paid beyond the due date, which should be rectified. This should have been done by the Appellate Tribunal in exercise of the powers vested in it under section 254(2) read with section 154 of the Income-tax Act. The decision of the Appellate Tribunal to the contrary in exhibit P-6 is unsustainable. The Appellate Tribunal has, in the circumstances, refused to exercise the jurisdiction vested in it under law. Exhibit P-6, therefore, deserves to be annulled. We hereby do so. We direct the appellate Tribunal to restore exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lict of judicial opinion on a particular point obliterates the existence of a debatable point prior to such decision. It was held that the law laid down by the Supreme Court cannot be said to have retrospective operation in the sense that although a debate or doubt or a conflict of judicial opinion is resolved and settled by the Supreme Court, yet still that does not obliterate the existence of such debate or doubt or conflict that existed prior to the decision of the Supreme Court setting at rest such debate or doubt or conflict. CIT v. Assam Oil Co. Ltd. [1982] 133 ITR 204 (Cal) was a case of reassessment, where the decision of the High Court that a particular kind of expenditure is not deductible was stated to be "information" within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Tribunal, namely, that when the Tribunal decided the appeal on the basis of the decision of a learned single judge of this court in Sethumadhavan's case [1980] 122 ITR 587 which was subsequently reversed by a Bench of this court in Santha S. Shenoy's case [1982] 135 ITR 39, there would be a rectifiable mistake within the meaning of section 254(2) read with section 154 of the Income-tax Act. In our opinion, the answer can only be in the affirmative. The decision of the Appellate Tribunal to the contrary is illegal. Section 254(2) and section 154 of the Income-tax Act enable the concerned authorities to rectify any "mistake apparent from the record". The said expression has a wider content than the expression "error apparent on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
