ANANDKUMAR JAIN, MUMBAI V. ITO WD 18(2)(2), MUMBAI

ITA 4192/MUM/2012

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5566 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 15-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Rectification of order; Opportunity of being heard; Retrospective amendment; Condonation of delay
• Section: 143(3); 80HHC; 250; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO. 4192/MUM/2012 : A.Y : 2003 - 04 ANANDKUMAR JAIN 5, JAI GOPAL INDL. ESTATE, BHAVANI SHANKAR ROAD, DADAR (W), MUMBAI 400 028. PAN : AABP J 485 7 G (APPELLANT) VS. ITO, WARD 18(2)(2), MUMBAI. (RESPONDENT) APPELLANT BY : SHRI JITENDRA SANGHAVI & SHRI AMIT KHATIWALA RESPONDENT BY : SHRI RAJESH KUMAR YADAV DATE OF HEARING : 2 5 /0 6 /2019 DATE OF PRONOUNCEMENT : 20 /0 8 /2019 O R D E R PER G.S. PANNU , VICE PRESIDENT THE CAPTIONED APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST AN ORDER PASSED BY THE CIT(A) - 29, MUMBAI DATED 24.01.2011, WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 154 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 04.02.2010 FOR PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2003 - 04. 2 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THE LEARNED COM MISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN PASSING ORDER U/S. 250 OF THE ACT DATED 29.03.2011 DISMISSING THE APPEAL FILED BY THE APPELLANT. 2. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN DISMIS SING THE APPEAL FILED BY THE APPELLANT WITHOUT GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 3. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT THE RECTIFICATION ORDER PASSED BY THE ASSESSING OFFICER U/S 154 OF THE ACT WAS BAD IN LAW AND INVALID. 4. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT THE ORDER PASSED BY HIM SUFFERED FROM MISTAKE APPARENT ON RECORD AND HENCE WAS LIABLE TO BE RECTIFIED U/S. 154 OF THE ACT. 3. BRIEFLY PUT, THE RELEVANT FACTS ARE THAT ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORT OF GARMENTS. HE FILED HIS RETURN OF INCOM E FOR ASSESSMENT YEAR 2003 - 04 ON 20.10.2003 DE CLARING A TOTAL INCOME OF RS. 96,25,198/ - AFTER CLAIMING DEDUCTION U/S 80HHC OF RS. 99,73,059/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT. IN THE COURSE OF SCRUTINY ASSESSMENT , THE ASSESSING OFFICER NOTED THAT ASSESSEE CARRIED ON BUSINESS IN THE NAME AND STYLE OF M/S FAIR LADY AND M/S FAIR LADY (EXPORTS). THE FIRST CONCERN IS DOING BUSINESS IN LOCAL MARKETS ONLY AND THE OTHER CONCERN IS 100% EXPORT UNIT. THE ASSESSEE HAD FURNISHED SEPARATE PROFIT & L OSS ACCOUNT AND C APITAL ACCOUNT OF BOTH THE CONCERNS. THE ASSESSING OFFICER OBSERVED THAT THE POSSIBILITY OF INTERMINGLING OF TRANSACTIONS OF LOCAL AS WELL AS EXPORT UNIT CANNOT BE RULE D OUT AND ACCORDINGLY , SHOW CA U SED ASSESSEE AS TO WHY ACCOUNTS OF BOTH THE CONCERNS 3 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 SHOULD NOT BE MERGED AND WHY THE PROFITS IN THE EXPORT BUSINESS SHOULD NOT BE CONSIDERED AFTER TAKING INTO ACCOUNT THE GROSS TURNOVER OF LOCAL BUSINESS AND TOTAL EXPORT TURNOVER IN LIGHT OF THE PROVISIONS OF S ECTION 80HHC OF THE ACT. THE ASS ESSING OFFICER WORKED OUT THE DEDUCTION UNDER SECTION 80HHC OF THE ACT AFTER CONSIDERING PROFIT/INCOME OF THE ASSESSEE OF BOTH THE PROPRIETARY CONCERNS TOGETHER. FURTHER, WHILE COMPUTING THE REVISED DEDUCTION UNDER SECTION 80HHC OF THE ACT, THE ASSESSING O FFICER REDUCED 90% OF THE DUTY D RAWBACK, E XCISE DUTY REFUND AND DEPB FROM THE PROFITS OF THE BUSINESS OF THE ASSESSEE AND ARRIVED AT THE DEDUCTION UNDER SECTION 80HHC AT RS. 18,84,051/ - . AGGRIEVED BY THE SAME , ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A) FO R ALLOWANCE OF 100% DEDUCTION UNDER SECTION 80HHC OF THE ACT ON ACCOUNT OF SALE PROCEEDS OF DEPB LICENSE. THE CIT(A) UPH E LD THE ACTION OF THE ASSESSING OFFICER IN DENYING DEDUCTION UNDER SECTION 80HHC OF THE ACT ON SALE PROCEEDS OF DEPB LICENSE. ON FURTH ER APPEAL BEFORE THE TRIBUNAL , THE TRIBUNAL UPHELD THE ORDER OF CIT(A). THEREAFTER, THE SPECIAL BENCH OF TRIBUNAL IN THE CASE OF TOPMAN EXPORTS VS. ITO (OSD) 33 SOT 337 (SB) DATED 11.08.2009 DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. THE ASSESSEE THUS FILED RECTIFICATION APPLICATION UNDER SECTION 154 OF THE ACT BEFORE THE ASSESSING OFFICER . THE ASSESSING OFFICER REJECTED THE ASSESSEES APPLICATION UNDER SECTION 154 OF THE ACT VIDE ORDER DATED 04.02.2010 HOLDING THAT THE DENIAL OF DEDUCTION UNDER SECTI ON 80HHC OF THE ACT WAS RIGHTLY DONE IN THE ORDER PASSED UNDER SECTION 143(3) OF THE ACT IN VIEW OF THE FACT THAT THE TOTAL TURNOVER EXCEEDED RS. 10 CRORE S AND IN VIEW OF THE AMENDMENT MADE IN ACT IN 2005. FURTHER, HE NOTED THAT THE DEPARTMENT HAS FILED APPEAL BEFORE THE HON'BLE SUPREME COURT AGAINST THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) . ACCORDINGLY, HE HELD THAT THE ISSUE OF ALLOWANCE OF 4 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 DEDUCTION UNDER SECTION 80HHC O F THE ACT IS A DEBATABLE ISSUE AND THUS , CANNOT BE SAID TO BE A MISTAKE APPARENT FROM RECORD AND CANNOT BE RECTIFIED UNDER SECTION 154 OF THE ACT. ONLY MISTAKES WHICH ARE PATENT MISTAKES CAN BE RECTIFIED UNDER SECTION 154 OF THE ACT AND NOT SOMETHING WHIC H CAN BE DETERMINED BY THE LONG DRAWN PROCESS OF REASONING. ACCORDINGLY, HE REJECTED THE ASSESSEES APPLICATION UNDER SECTION 154 OF THE ACT. ON APPEAL BEFORE THE CIT(A) AGAINST THE ORDER OF THE ASSESSING OFFICER UNDER SECTION 154 OF THE ACT, THE CIT(A) FIRSTLY HELD THIS CANNOT BE TERMED AS A MISTAKE APPARENT FROM RECORD AND THUS , THE SAME CANNOT BE RECTIFIED UNDER SECTION 154 OF THE ACT AND AGREED WITH THE CONTENTION OF THE ASSESSING OFFICER THAT THE ISSUE IS DEBATABLE. SECONDLY, ON MERITS , THE CIT(A) H ELD THAT THE ISSUE OF ALLOWANCE OF DEDUCTION UNDER SECTION 80HHC OF THE ACT HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE ORDER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLOURS [2010] 192 TAXMAN 435 (BOM) . ACCORDINGLY, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 24.01.2011. THE ASSESSEE DID NOT PREFER FURTHER APPEAL AGAINST THE ORDER OF THE CIT(A). SUBSEQUENTLY, THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT , 342 ITR 49 (SC) REVERSED THE DECISION OF T HE HONBLE BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLOURS (SUPRA) VIDE ITS ORDER DATED 08.02.2012. THE ASSESSEE THUS PREFERRED THE INSTANT APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGNED ORDER OF THE CIT(A) ON 15.06.2012 , I.E. AFTER A DELAY OF 420 DAYS. THE ASSESSEE FILED THE REQUEST FOR COND ONATION OF DELAY DATED 03.07.2014 ALONGWITH THE AFFIDAVIT OF THE LEGAL HEIR OF THE ASSESSEE, MS. ANCHAL JAIN DATED 03.07.2014 EXPLAINING THE REASON FOR DELAY IN FILING THE PRESENT APPEAL. 5 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 4. BEF ORE US, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE DREW OUR ATTENTION TO THE FACTUAL MATRIX WHICH IS DISCUSSED ABOVE IN DETAIL. O UR ATTENTION WAS ALSO DRAW N TO THE REQUEST FOR COND ONATION OF DELAY AND AFFIDAVIT OF THE LEGAL HEIR , WHICH READS AS UNDER: - .. 2. I SAY THAT THE APPEAL AGAINST THE ORDER DATED 24.01.2011 PASSED BY THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) - 29, MUMBAI, HAS BEEN FILED BEFORE THE HONBLE TRIBUNAL ON 15.06.2012 FOR AY. 2003 - 04. THE APPEAL IS THUS FILED BELATEDLY BY 420 DAYS BEFORE THE HONBLE TRIBUNAL. 3. I SAY THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE APPLICANT BECAUSE THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS AND CHEMICALS [328 ITR 451] WAS AGAINST THE ISSUE INVOLVED IN THE AS SESSEES CASE. 4. I SAY THAT I WAS ADVISED BY MY TAX CONSULTANT THAT NO FRUITFUL PURPOSE WOULD BE SERVED BY FILING AN APPEAL BEFORE THE HONBLE TRIBUNAL SINCE THE HONBLE JURISDICTIONAL HIGH COURTS WAS AGAINST THE APPLICANT AND THAT THE SAME WAS ALSO BIND ING ON THE HONBLE TRIBUNAL. 5. I SAY THAT THEREAFTER I WAS INFORMED THAT THE SAID JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT WAS REVERSED BY THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS V. CIT [ 342 ITR 49] (SC)]. 6. I SAY THAT I WAS ACCORDIN GLY ADVISED BY MY TAX CONSULTANTS THAT SINCE THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT HAS BEEN REVERSED BY THE HONBLE SUPREME COURT, THE SAME NO LONGER REMAINED A GOOD LAW AND THAT THE ORDER OF THE LD. CIT(A) SHOULD BE CHALLENGED BEFORE THE HONBLE T RIBUNAL. 7. I SAY THAT NO SOONER I WAS INFORMED THAT THE APPEAL SHOULD BE FILED BEFORE THE HONBLE TRIBUNAL AND THAT THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT HAS BEEN REVERSED. 6 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 8. I SAY THAT IMMEDIATELY THEREAFTER I INSTRUCTED MY TAX CONSULTANT TO P REPARE THE RELEVANT DOCUMENTS AND FILE THE APPEAL FOR THE HONBLE TRIBUNAL. ACCORDINGLY, THE APPEAL WAS FILED ON 15.06.2012. 9. I SAY THAT THE DELAY IN FILING THE APPEAL IS SOLELY DUE TO THE BONAFIDE AND GENUINE BELIEF AND THAT NO MALAFIDE INTENTIONS ARE INVOLVED IN FILING THE APPEAL LATE. 10. I SAY THAT THE APPLICATION FOR CONDONATION OF DELAY IS BEING SEPARATELY FILED AND I CONFIRM THE FACT S STATED THEREIN TO BE CORRECT. FROM ABOVE, IT CAN BE SEEN THAT THE ASSESSEE CHOSE NOT TO FILE THE APPEAL BEFORE THE TRIBUNAL BASED ON THE ADVICE OF THE C ONSULTANT THAT THE JURISDICTIONAL HIGH COURT DECISION, WHICH IS BINDING ON THE ASSESSEE, HAS DECIDED THE ISSUE AGAINST THE ASSESSEE ; AND , AS SUCH , FILING APPEAL BEFORE TRIBUNAL WILL NOT BE FRUITFUL. SUBSEQUENTLY, SI NCE THE HON'BLE SUPREME COURT DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN ANOTHER CASE, THE ASSESSEE WAS ADVI S E D TO FILE APPEAL BEFORE THE TRIBUNAL . AS SUCH , DELAY IN FILING THE APPEAL WAS SOLELY DUE TO THE BONA FIDE AND GENUINE BELIEF AND THAT NO MALA FIDE INTENTIONS WERE INVOLVED. 5. IN THIS REGARD, THE LEARNED REPRESENTATIVE PLACED RELIANCE ON THE FOLLOWING DECISIONS , WHEREIN DELAY IN FILING APPEAL BEFORE TRIBUNAL DUE TO THE SUBSEQUENT DECISION OF THE HON'BLE SUPREME COURT WAS CONDONED: A) MAGNUM EXPORTS VS. ACIT , ITA NO. 1111/KOL/2012 B) MY FAVOURITE LADY EXPORTS PVT. LTD. VS. ITO , ITA NO. 5152/MUM/2014 C) PAHILAJAL JAIKISHAN VS. JCIT , ITA NO. 1392/MUM/2012 D) SURAJMAL EXPORTS VS. ACIT , ITA NO. 410/KOL/2013 7 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 E) NULUX ENGINEERS VS. ADDL. CIT , ITA NO . 2309/MUM/2012 & ITA NO. 7341/MUM/2014 6. IN LIGHT OF THE ABOVE DECISIONS , LEARNED REPRESENTATIVE REQUESTED TO CONDONE THE DELAY IN FILING THE APPEAL. 7. AS REGARDS THE OBSERVATION OF THE ASSESSING OFFICER THAT DENIAL OF THE DEDUCTION UNDER SECTION 80HH C OF THE ACT ON THE SALE PROCEEDS OF THE DEPB LICENSE, WHICH WAS ALLOWED BY THE HONBLE SPECIAL BENCH OF THE TRIBUNAL IN ANOTHER CASE, CANNOT BE SAID TO BE MISTAKE APPARENT FROM THE RECORD UNDER SECTION 154 OF THE ACT AND CANNOT BE RECTIFIED UNDER SECTION 154 OF THE ACT, THE LEARNED REPRESENTATIVE RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. , 173 TAXMAN 322 (SC) WHEREIN IT WAS HELD THAT THE LAW HAS ALWAYS BEEN THE SAME. THE JUDGES ONLY INTERPRET THE LAW BUT DO NOT MAKE NEW LAW. THUS, THE SUBSEQUENT JUDGMENT DOES NOT MAKE THE NEW LAW BUT ONLY INTERPRETS THE OLD LAW WHICH WAS ALREADY IN EXISTENCE. AS SUCH , IT WAS ARGUED THAT THE LAW DECLARED BY THE HON'BLE SUPREME COURT I N THE CASE OF TOPMAN EXPORTS ( S UPRA) ALWAYS EXISTED AND THE ORDER PASSED AGAINST THE SAID LAW IS A PATENT MISTAKE APPARENT FROM RECORD AND WAS THUS RECTIFIABLE UNDER SECTION 154 OF THE ACT. 8. ON MERITS, THE LEARNED REPRESENTATIVE RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS ( S UPRA) AND REQUESTED TO DIRECT THE ASSESSING OFFICER TO RE - COMPUTE THE DEDUCTION UNDER SECTION 80HHC OF THE ACT IN LIGHT OF THE SAID DECISION. 8 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 9. PER CONTRA, THE LEARNED DR OBJECTED TO THE CONDON ATION OF DELAY AND RELIED ON THE DECISION OF OUR C O - ORDINATE BENCH IN THE CASE OF KUNAL SURANA VS. ITO IN ITA NO. 3297/MUM/2012 WHEREIN THE TRIBUNAL REJECTED THE CONDONATION OF DELAY OF FOUR MONTHS IN FILING THE APPEAL BEFORE THE CIT(A). FURTHER, HE RELIE D ON THE ORDER OF LOWER AUTHORITIES TO HOLD THAT SINCE THE ISSUE WAS DEBATABLE AT THE RELEVANT POINT OF TIME , THE SAME CANNOT BE SAID TO BE MISTAKE APPARENT FROM RECORD AND , THEREFORE , THE SAME CANNOT BE RECTIFIED UNDER SECTION 154 OF THE ACT. 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PURSUED THE MATERIAL ON RECORD. AT THE OUTSET , WE FIND THAT UNDISPUTEDLY THERE IS A DELAY OF 420 DAYS IN FILING THE APPEAL BEFORE US. SO , FIRSTLY WE SHALL DEAL WITH THE ASSESSEES REQUEST FOR CONDONA TION OF DELAY IN FILING THE APPEAL. AS DISCUSSED IN THE EARLIER PART OF THE ORDER, THE DELAY IN FILING THE APPEAL BEFORE US WAS SOLELY ON THE GROUND THAT THE CIT(A) HAS DECIDED THE ISSUE AGAINST THE ASSESSEE FOLLOWING THE DECISION OF THE JURISDICTIONAL HI GH COURT IN THE CASE OF KALPATARU COLOURS (SUPRA) ; AND , AS SUCH , BASED ON THE ADVICE OF THE C ONSULTANT , ASSESSEE DID NOT PREFER FURTHER APPEAL BEFORE THE TRIBUNAL . ON SUBSEQUENT FAVORABLE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) , THE ASSESSEE WAS ADVISED TO FILE THE APPEAL BEFORE THE TRIBUNAL AND ACCORDINGLY ASSESSEE FILED THE APPEAL BEFORE US AFTER A DELAY OF 420 DAYS. THE LEARNED REPRESENTATIVE FOR THE ASSESSEE RELIED ON VARIOUS DECISION S OF THE TRIBUNAL TO HOLD THAT D ELAY IN FILING APPEAL DUE TO SUBSEQUENT DECISION OF THE HONBLE SUPREME COURT IS A VALID GROUND FOR CONDONATION OF DELAY. IN THIS REGARD, WE FIND THAT THE LEARNED DR HAS NOT CONTR OVERTED THE FACTUAL MATRIX EXPLAINED BY THE ASSESSEE DUE TO WHICH THERE WAS A DELAY IN FILING THE APPEAL. WE SHALL THUS NOW EXAMINE WHETHER THE REASON CITED 9 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 BY THE ASSESSEE IS A GOOD GROUND FOR DELAY IN FILING THE APPEAL AND THUS , THE ASSESSEES DELAY IN FILING THE APPEAL BEFORE US IS CONDONABLE. 11. WE FIND THAT IN THE CASE OF MAGNUM EXPORTS (SUPRA) , RELIED UPON BY THE LEARNED REPRESENTATIVE FOR THE ASSESSEE , THE KOLKATA BENCH OF THE TRIBUNAL CONDONED THE DELAY OF 2017 DAYS IN FILING THE APPEAL BEFORE IT. IN THAT CASE ALSO , THE ASSESSEE FILED DELAYED APPEAL DUE TO THE SUBSEQUENT DECISION OF THE HON'BLE SUPREME COURT . FURTHER, IN SIMILAR CIRCUMSTANCE , IN THE CASE OF PAHILAJRAI JAIKISHIN (SUPRA) , WHEREIN ALSO THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL ON THE ISSUE OF D EDUCTION UNDER SECTION 80HHC OF THE ACT BASED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS ( S UPRA) AFTER A DELAY OF 1598 DAYS , THE DELAY WAS CONDONED BY OUR CO - ORDINATE BENCH. 12. SINCE THE FACTS OF THE PRESENT CASE AND FACTS IN THE CASE OF DECISION OF THE KOLKATA BENCH OF THE TRIBUNAL IN THE CASE OF MAGNUM EXPORTS (SUPRA) AND IN THE DECISION OF OUR CO - ORDINATE BENCH IN THE CASE OF PAHILAJRAI JAIKISHIN (SUPRA) ARE IDENTICAL, FOLLOWI NG THE SAID DECISION S, WE HEREBY , IN THE INTEREST OF THE JUSTICE , CONDONE THE DELAY OF 420 DAYS IN FILING THE APPEAL AND ADMIT THE APPEAL OF THE ASSESSEE. 13. AS REGARD THE DECISION OF OUR C O - ORDINATE BENCH IN THE CASE OF KUNAL SURANA (SUPRA) RELIED UPON BY THE LEARNED DR , WE FIND THAT THE SAID CASE IS DISTINGUISHABLE ON FACTS IN AS MUCH AS IN THE SAID CASE IT WAS OBSERVED BY THE TRIBUNAL THAT THE DELAY IN FILING THE APPEAL BY THE ASSESSEE WAS ON ACCOUNT OF GROSS NEGLIGENCE, INACTION AND LACHE S ON THE PART OF THE ASSESSEE AND HIS REPRESENTATIVES W HEREAS IN 10 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 THE PRESENT CASE , THERE IS NO NEGLIGENCE ON THE PART OF THE ASSESSEE. AS SUCH , THE DECISION RELIED ON BY THE LEARNED DR IS OF NO RELEVANCE. 14. THE NEXT ISSUE THAT ARISES IS WHETHER DENIAL OF DEDUCTION UNDER SECTION 80HHC OF THE ACT ON SALE PROCEEDS OF DEPB LICENSE , WHICH IS CONTRARY TO THE SUBSEQUENT DECISION OF HON'BLE SUPREME COURT, CAN BE TERMED AS A MISTAKE APPARENT FROM RECORD IN TERMS OF S ECTION 154 OF THE ACT AND CAN BE RECTIFIED IN THE PROCEEDING UNDER SECTION 154 OF THE ACT. 15. IN THIS REGARD, IT IS PERTINENT TO REFER TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD (SUPRA) WHEREIN IT WAS HELD AS UNDER: 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, THE JUDGES DO NOT MAKE LAW; THEY ONLY DISCOVER OR FIN D 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 A NEW LAW. IT ONLY DISCOVERS THE CORRECT PRINCIPLE OF LAW WHICH HAS TO BE APPLIED RETROSPECTIVELY. TO PUT IT DIFFEREN TLY, EVEN WHERE AN EARLIER DECISION OF THE COURT OPERATED FOR QUITE SOMETIME, THE DECISION RENDERED LATER ON WOULD HAVE RETROSPECTIVE EFFECT, CLARIFYING THE LEGAL POSITION WHICH WAS EARLIER NOT CORRECTLY UNDERSTOOD.[PARA 42] IT IS EVIDENT FROM THE ABOVE THAT THE DECISION S RENDERED BY THE HONBLE COURTS DO NOT MAKE ANY NEW LAW ; T HEY ONLY CLARIFY THE LEGAL POSITION WHICH WAS EARLIER NOT CORRECTLY UNDERSTOOD. FURTHER, SUCH LEGAL POSITION CLARIFIED BY THE COURTS HAS RETROSPECTIVE EFFECT AS THE LAW WAS ALWAYS THE SAME AND NO 11 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 AMENDMENT HAS BEEN MADE TO THE LAW BY THE DECISION RENDERED BY THE COURTS. ONCE THE LEGAL POSITION CLARIFIED BY THE C OURTS HAVE RETROSPECTIVE EFFECT, IT CAN BE INFERRED THAT SUCH LEGAL POSITION WAS ALWAYS THE CORRECT POSITION O F LAW AND WAS ALWAYS PREVAILING. IT CAN BE SAID THAT THE SAID POSITION WAS ALSO EXISTING AT THE TIME OF PASSING OF THE ORDER BY THE ASSESSING OFFICER AND CIT(A). THUS, ANY ORDER PASSED IN CONTRAVENTION OF SUCH LEGAL POSITION CAN BE TERMED AS A MISTAKE AP PARENT FROM RECORD WHICH CAN BE RECTIFIED UNDER SECTION 154 OF THE ACT. 16. IN THE PRESENT CASE, THERE IS NO DISPUTE WITH RESPECT TO THE FACT THAT THE SUBSEQUENT DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS ( S UPRA) HAS DECIDED THE ISSUE OF DEDUCTION UNDER SECTION 80HHC OF THE ACT ON SALE PROCEEDS OF DEPB LICENSE IN FAVOUR OF THE ASSESSEE. ONCE THAT IS SO , IT CAN BE SAFELY INFERRED THAT THE LEGAL POSITION ON THE ISSUE OF DEDUCTION UNDER SECTION 80HHC OF THE ACT ON S ALE PROCEEDS OF DEPB LICENSE HAS BEEN CLARIFIED BY THE HON'BLE SUPREME COURT AND WHICH DECISION HAS A RETROSPECTIVE EFFECT. AS SUCH , THE LEGAL POSITION CLARIFIED BY THE HON'BLE SUPREME COURT WAS EXI S TING AT THE TIME OF PASSING OF THE ORDER BY THE ASSESSIN G OFFICER AND THE CIT(A). HOWEVER, THE ORDER PASSED BY THE ASSESSING OFFICER WAS IN CONTRAVENTION OF THE LEGAL POSITION SUBSEQUENTLY CLARIFIED BY THE HON'BLE SUPREME COURT . THUS, IT CAN BE SAID THAT THE MISTAKE WAS A PATENT MISTAKE , AND WHICH WAS APPAREN T FROM THE RECORD. ACCORDINGLY, IT CAN BE TERMED AS A MISTAKE APPARENT FROM RECORD AND WAS VERY MUCH RECTIFIABLE UNDER SECTION 154 OF THE ACT. 12 ANANDKUMAR JAIN ITA NO. 4192/MUM/2012 17. AS REGARDS MERIT OF THE CASE , WE FIND THAT THE ISSUE OF DEDUCTION UNDER SECTION 80HHC OF THE ACT ON SALE PROCEEDS OF DEPB LICENSE HAS BEEN DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). WE ACCORDINGLY DIRECT THE ASSESSING OFFICER TO RE - COMPUTE THE DEDUCTION UNDER SECTION 80HHC OF THE ACT ON SALE PROCEEDS O F DEPB LICENSE IN LIGHT OF DECISION OF HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). ACCORDINGLY, THE G ROUND RAISED BY THE ASSESSEE IN APPEAL IS ALLOWED. 18. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 0 T H AUGUST , 2019. SD/ - SD/ - ( RAVISH SOOD ) JUDICIAL MEMBER ( G.S. PANNU ) VICE PRESIDENT MUMBAI, DATE : 2 0 T H AUGUST, 201 9 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI