THE ASSISTANT DIRECTOR OF INCOME TAX, CPC, BENGALURU V. SREE GOKULAM CHIT AND FINANCE CO. PVT. LTD., CHENNAI

MA 11/CHNY/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 8702 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-05-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 10-01-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DISALLOWING LATE PAYMENT OF
• Keywords: Depreciation; Rectification of order; Retrospective amendment
• Section: 147; 154; 43B; 143(1); 139(1); 254(2); 64; 13; 22

Judgement Text

आयकर अपीलीय अिधकरण “ए” ायपीठ चे ई म । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, CHENNAI माननीय ी महावीर िसंह, उपा ! एवं माननीय ी मनोज कुमार अ%वाल ,लेखा सद( के सम!। BEFORE HON’BLE SHRI MAHAVIR SINGH, VP AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM M.A. No.97/Chn y/2022 [In ITA No.17/Chny/2022] (िनधा)रण वष) / Assessment Year: 2019-20) & M.A. No.11/Chn y/2023 [In ITA No.17/Chny/2022] (िनधा)रण वष) / Assessment Year: 2019-20) ACIT Central Circle-1(2) Chennai. बनाम / V s. M/s. Sree Gokulam Chit and Finance Co. P. Ltd. 66, Sree Gokulam Towers, Arcot Road, Kodambakkam, Chennai-600 024. थायीलेखासं./जीआइआरसं./PAN/GIR No. PAN: AAACS-8778-C (अपीलाथ /Appellant) : ( थ / Respondent) अपीलाथ की ओर से/ Appellant by : Shri AR V Sreenivasan (Addl. CIT) – Ld. DR थ की ओर से/Respondent by : Shri S. Sridhar (Advocate) – Ld.AR सुनवाईकीतारीख/Date of Hearing : 19-05-2023 घोषणाकीतारीख/Date of Pronouncement : 31-07-2023 आदेश / O R D E R Per Manoj Kumar Aggarwal (Accountant Member) 1. By way of captioned Miscellaneous Applications, the Revenue seeks our indulgence in Tribunal order passed in captioned appeals vide common order dated 11.04.2022. The revenue has filed similar applications in bunch of appeals seeking restoration / rectification of order on identical grounds. All these applications were heard together - 2 - and opportunity was given to learned authorized representatives of all the assessees to meet out the applications filed by the revenue. The captioned applications were taken as the lead applications in which the arguments raised by various ARs have been dealt with. It was admitted position that the adjudication in these applications would apply to all the other similar applications filed by the revenue. The Ld. ARs as well as revenue made arguments, oral and written. Having heard rival submissions and upon perusal of case records, the applications are disposed-off as under. 2. In common order dated 11.04.2022, the Tribunal disposed-off bunch of appeals having similar issue of disallowance of late payment of Employees’ Contribution to PF / ESI in terms of Sec.43B r.w.s. 36(1)(va) as well as Sec. 2(24)(x). The bench, relying on its lead decision in M/s Benco Thermal Technologies Private Ltd. vs. Asstt. Director of Income Tax (ITA No.281/Chny/2021 dated 23.02.2022) decided this issue in assessee’s favour. The lead order, in turn, substantially relied on the decision of jurisdictional High Court rendered in CIT vs. Industrial Security & Intelligence India (P.) Ltd. (TCA No.585 of 2015 dated 24.07.2015) in preference to contrary view taken by Hon’ble Kerala High Court in Popular Vehicles & Services P. Ltd. V/s CIT (96 Taxmann.com 13; 02.07.2018) as well as Hon’ble Gujarat High Court in CIT V/s Gujarat State Road Transport Corpn. (41 Taxmann.com 100; 26.12.2013). 3. However, the application of the revenue stem from the recent decision of Hon’ble Supreme Court in bunch of appeals titled as Checkmate Services P. Ltd. Vs CIT (143 Taxmann.com 178; dated - 3 - 12.10.2022) wherein this controversy has now been put to rest by the Hon’ble Court by deciding this issue in revenue’s favor. 4. Noticing the divergent views, Hon’ble Supreme Court, in detailed judgment, observed that one of the rules of interpretation of a tax statute is that if a deduction or exemption is available on compliance with certain conditions, the conditions are to be strictly complied with. This rule is in line with the general principle that taxing statutes are to be construed strictly, and that there is no room for equitable considerations. The deductions are to be granted only when the conditions which govern them are strictly complied with. It was further held that the decision in Alom Extrusions Ltd. (319 ITR 306) did not consider the fact of the introduction of Section 2(24)(x) or in fact the other provisions of the Act. It was finally held by Hon’ble Court as under: - 52. When Parliament introduced Section 43B, what was on the statute book, was only employer’s contribution (Section 34(1)(iv)). At that point in time, there was no question of employee’s contribution being considered as part of the employer’s earning. On the application of the original principles of law it could have been treated only as receipts not amounting to income. When Parliament introduced the amendments in 1988-89, inserting Section 36(1)(va) and simultaneously inserting the second proviso of Section 43B, its intention was not to treat the disparate nature of the amounts, similarly. As discussed previously, the memorandum introducing the Finance Bill clearly stated that the provisions – especially second proviso to Section 43B - was introduced to ensure timely payments were made by the employer to the concerned fund (EPF, ESI, etc.) and avoid the mischief of employers retaining amounts for long periods. That Parliament intended to retain the separate character of these two amounts, is evident from the use of different language. Section 2(24)(x) too, deems amount received from the employees (whether the amount is received from the employee or by way of deduction authorized by the statute) as income - it is the character of the amount that is important, i.e., not income earned. Thus, amounts retained by the employer from out of the employee’s income by way of deduction etc. were treated as income in the hands of the employer. The significance of this provision is that on the one hand it brought into the fold of “income” amounts that were receipts or deductions from employees income; at the time, payment within the prescribed time – by way of contribution of the employees’ share to their credit with the relevant fund is to be treated as deduction (Section 36(1)(va)). The other important feature is that - 4 - this distinction between the employers’ contribution (Section 36(1)(iv)) and employees’ contribution required to be deposited by the employer (Section 36(1)(va)) was maintained - and continues to be maintained. On the other hand, Section 43B covers all deductions that are permissible as expenditures, or out- goings forming part of the assessees’ liability. These include liabilities such as tax liability, cess duties etc. or interest liability having regard to the terms of the contract. Thus, timely payment of these alone entitle an assessee to the benefit of deduction from the total income. The essential objective of Section 43B is to ensure that if assessees are following the mercantile method of accounting, nevertheless, the deduction of such liabilities, based only on book entries, would not be given. To pass muster, actual payments were a necessary pre-condition for allowing the expenditure. 53. The distinction between an employer’s contribution which is its primary liability under law – in terms of Section 36(1)(iv), and its liability to deposit amounts received by it or deducted by it (Section 36(1)(va)) is, thus crucial. The former forms part of the employers’ income, and the later retains its character as an income (albeit deemed), by virtue of Section 2(24)(x) - unless the conditions spelt by Explanation to Section 36(1)(va) are satisfied i.e., depositing such amount received or deducted from the employee on or before the due date. In other words, there is a marked distinction between the nature and character of the two amounts – the employer’s liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees’ income and held in trust by the employer. This marked distinction has to be borne while interpreting the obligation of every assessee under Section 43B. 54. In the opinion of this Court, the reasoning in the impugned judgment that the non-obstante clause would not in any manner dilute or override the employer’s obligation to deposit the amounts retained by it or deducted by it from the employee’s income, unless the condition that it is deposited on or before the due date, is correct and justified. The non-obstante clause has to be understood in the context of the entire provision of Section 43B which is to ensure timely payment before the returns are filed, of certain liabilities which are to be borne by the assessee in the form of tax, interest payment and other statutory liability. In the case of these liabilities, what constitutes the due date is defined by the statute. Nevertheless, the assessees are given some leeway in that as long as deposits are made beyond the due date, but before the date of filing the return, the deduction is allowed. That, however, cannot apply in the case of amounts which are held in trust, as it is in the case of employees’ contributions- which are deducted from their income. They are not part of the assessee employer’s income, nor are they heads of deduction per se in the form of statutory pay out. They are others’ income, monies, only deemed to be income, with the object of ensuring that they are paid within the due date specified in the particular law. They have to be deposited in terms of such welfare enactments. It is upon deposit, in terms of those enactments and on or before the due dates mandated by such concerned law, that the amount which is otherwise retained, and deemed an income, is treated as a deduction. Thus, it is an essential condition for the deduction that such amounts are deposited on or before the due date. If such interpretation were to be adopted, the non-obstante clause under Section 43B or anything contained in that provision would not absolve the assessee from its liability to deposit the employee’s contribution on or before the due date as a condition for deduction. - 5 - 55. In the light of the above reasoning, this court is of the opinion that there is no infirmity in the approach of the impugned judgment. The decisions of the other High Courts, holding to the contrary, do not lay down the correct law. For these reasons, this court does not find any reason to interfere with the impugned judgment. The appeals are accordingly dismissed. It has finally been held by Hon’ble Court that there is clear distinction between employer’s contribution which is its primary liability under law [in terms of Section 36(1)(iv)] and its liability to deposit amounts received by it or deducted by it from its employees’ [in terms of Sec. 36(1)(va)]. The former forms part of the employers’ income, and the later retains its character as an income (albeit deemed), by virtue of Section 2(24)(x) and therefore, subjected to conditions spelt out by Explanation to Section 36(1)(va) i.e., depositing such amount received or deducted from the employees on or before the due date. In other words, there is a marked distinction between the nature and character of the two contributions – the employer’s liability is to be paid out of its income whereas the second is deemed to be an income, by definition, since it is the deduction from the employees’ income and held in trust by the employer. This marked distinction has to be borne in mind while interpreting the obligation of every assessee under Section 43B. If the same is not deposited as per mandate of Sec.36(1)(va), the deduction of the same would not be available to the assessee. 5. Upon perusal of the same, we find that Hon’ble Court has not laid down any new proposition of law but only interpreted an existing provision of law and put to rest the ongoing controversy. Therefore, in our considered opinion, it has to be presumed that the law was always like that and the two contributions viz. Employers’ contribution and Employees’ contribution were to be given separate treatment under the - 6 - Act. Therefore, there is no question of retrospective or prospective application of this judgment rather it was to be presumed that the proposition of law was always like that and nothing else. 6. The aforesaid judgment of Hon’ble Court has triggered present miscellaneous applications before us wherein the revenue seeks reversal of Tribunal adjudication in the light of this decision rendered by Hon’ble Apex Court. In MA No.97/Chny/2022 which has been filed on 19.08.2022 i.e., before rendering of cited decision of Hon’ble Apex Court in Checkmate Services P. Ltd. Vs CIT (supra), the revenue, inter-alia, submits that the decision of the Tribunal has followed the decision in CIT vs. Industrial Security & Intelligence India (P.) Ltd. (supra) as against the fact that Hon’ble Court in subsequent decision titled as M/s. Orchid Pharma Ltd. (TCA No. 430 &421 of 2019 dated 08.7.2019) did not follow its own decision in the case of M/s. Industrial Security and Intelligence India Private Ltd. (supra) and had observed about the various decisions favoring revenue and remitted the issue back to lower authorities. It is thus clear that Hon'ble High Court did not agree with its own decision rendered earlier. The revenue further submits that the decision of Tribunal is contrary to the ratio laid down by the Hon’ble Apex court in CIT Vs Podar Cement Pvt. Ltd. (92 Taxman 541), wherein it was held that declaratory and clarificatory amendments are retrospective in operation and the principle was laid down after considering similar explanatory memorandum to the Finance Bill 1987. The CIT(A) had elaborately discussed the decisions rendered by the Kerala High Court in Popular Vehicles & Services Pvt. Ltd. Vs CIT (supra) & the decision of Hon’ble Gujarat High Court in CIT Vs Gujarat State Transport Corporation (supra), to establish - 7 - as to how the decision in Alom Extrusions Ltd. (supra) was not applicable, as the court had not considered deduction u/s 36(1)(va) with respect to employees’ contribution. In fact, the CBDT had clarified in Circular No.22/2015 that, the decision in Alom Extrusions Ltd. (supra) was not applicable to employees’ contribution. Considering this background and the explicit legislative expression that for the removable of doubts, it is hereby clarified that the provisions of Sec 43B shall not apply and shall be deemed never to have been applied for the purpose of determining the due date under this clause, this amendment was declared to have retrospective operation as held by Hon’ble Apex Court in CIT Vs Podar Cements Ltd. (supra). The revenue submit that the Tribunal has not considered this decision on the issue of interpretation of clarificatory amendment. 7. MA No 11/Chny/2023 has been filed by revenue after the cited decision of Hon’ble Apex Court in Checkmate Services P. Ltd. Vs CIT (supra). In this MA, the revenue has urged us to follow the binding decision of Hon’ble Apex Court rendered in Checkmate Services P. Ltd. Vs CIT (supra). 8. Arguments of Ld. ARs on behalf of assessee 8.1 Shri S. Sridhar (appearing in MA Nos.97/Chny/22, 11/Chny/23, 123 & 124/Chny/22, 145 to 149/Chny/22, 171 & 172/Chny/22), advanced arguments and filed written submissions. The Ld. AR has stated that the decision rendered by Tribunal is based on law as it stood at that point in time and the adjudication was based on settled law tendered in Alom Extrusions Ltd. (supra). The decision of Tribunal under consideration was rendered after considering the earlier decision of the Tribunal rendered on similar facts and - 8 - circumstances. At the time of adjudication, the bench was also guided by the binding decisions of the Jurisdictional High Court in the case of CIT v. Industrial Security & Intelligence India (P.) Ltd. (supra) as well other binding decisions of other High Courts. 8.2 The Ld. AR submitted that power of rectification u/s 254(2) is narrow and limited to rectify or correct only mistake apparent from record as held by Hon’ble Supreme Court in CIT vs. Reliance Telecom Ltd. (440 ITR 1) wherein it was held that recalling of the order by Tribunal was beyond the scope and ambit of the powers u/s 254(2). The powers u/s 254(2) are akin to Order XLVII Rule 1 Code of Civil Procedure 1908. While considering the application u/s 254(2), the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. The Apex Court after reckoning the nature of the proceedings of the Appellate Tribunal had equated the powers conferred for such rectification u/s 254(2) of the Act with that of the powers of the civil court by referring to Rule 1 Order XLVII of Code of Civil Procedure 1908 and the same reads as under: Rule 1 Order XLVII of Code of Civil Procedure 1908 "Application for review of judgment" (1) Any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. - 9 - (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court_in any other case, shall_not be a ground for the_review of such judgment_" The Ld. AR thus submitted that in the light of the parallel drawn by the Supreme Court by reckoning the proceedings of this Hon'ble Bench as that of a civil court, review of their earlier decision based on the subsequent law declared by the Apex Court is prohibited. 8.3 The Ld. AR also referred to the decision of Hon’ble High Court of Madras in CIT vs. Sical Logistics Ltd. (128 Taxmann.com 370) wherein it was held that non-consideration of order of High Court would not be construed as mistake apparent from record in terms of Se.254(2). The only remedy available to the parties is to file an appeal against the order. The Ld. AR also referred to the decision of Hon’ble Gujarat High Court in the case Vrundavan Oil and Ginning Mills Ltd. (434 ITR 583) which had followed the ratio laid down by the Delhi High Court in the case of CIT vs. Maruti Insurance Distribution Services Ltd. (26 Taxmann.com 68). The Hon’ble Court held that the power to rectify an order under section 254(2) of the Act is extremely limited. It does not extend to correcting the errors of law or re-appreciating the factual findings. Those properly fall within the appellate review of an order of Court of first instance. What legitimately falls for consideration are errors (mistakes) apparent from the record. Similarly, Hon’ble Bombay High Court while interpreting the scope of rectification in the context of amendment made subsequently in the case of CIT vs - 10 - Sudhir M. Mehta (265 ITR 548) held that the decision of Tribunal rendered three months prior to amending law receiving the presidential assent would not amount to mistake apparent from record. 8.4 The Ld. AR also referred to the decision of Hon’ble Madras High Court in Express Newspaper Ltd. (320 ITR 12), wherein Hon’ble Court, after considering various decisions including the judgment of the Apex Court in the case of Saurashtra Kutch Stock Exchange Ltd (305 ITR 227) held as under: - 9. The scope and amplitude of section 254(2) and the analogous provision on section 154 of the Act have been considered by catena of decisions of the Apex Court and other High Courts. The uniform opinion of the Courts of superior jurisdiction is that a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected under section 254(2). An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the record means an error which strikes one on mere looking and does not need a long drawn out process of reasoning on points on which there may be conceivably two opinions. The error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of possible views, the case cannot be said to be covered by an error apparent on the face of the record. Section 254(2) specifically empowers the Tribunal to amend at any time within four years from the date of an order, any order passed by it under section 254(1) with a view to rectify any mistake apparent from the record either suo motu or on an application. In order to attract the application of section 254(2), the mistake must exist and the same must be apparent from the record. The expression "mistake apparent from the records" contained in sections 154 and 254(2) has wider content than the expression "error apparent on the face of the record" occurring in Order 47 Rule 1 of CPC. The restrictions on the power of review under Order 47 Rule 1 of CPC do not hold good in the cases of sections 254(2) and 154 of the Act. Section 254(2) does not confer power on the Tribunal to review its earlier order. Under the grab of rectification of mistake it is not possible for a party to take further chance of re-arguing the appeal already decided. What can be rectified under section 254(2) is a mistake which is apparent and patent. The mistake has to be such for which no elaborate reasons or enquiry is necessary. Where two opinions are possible then it cannot be said to be a mistake apparent on the record. When prejudice resulting from an order is attributable to the Tribunal's mistake, error or omission, it is its bounden duty to set it right. The purpose behind the enactment of section 254(2) of the Act to amend any order passed under sub- section (1), if any mistake apparent from the records is brought to the notice of the Tribunal, is based on the fundamental principle that no party appearing before the - 11 - Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent power of the Tribunal. If prejudice is resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error, then the Tribunal would be justified in rectifying its mistake. Rectification can be made only when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. The rectification is not possible if the question is debatable. A point which was not examined on facts or in law cannot he dealt with as a mistake apparent from the record. No error can be said to be apparent on the face of the record if it is not manifest or self evident and requires an examination or argument to establish it. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, is a clear case of error apparent on the face of the record. Vide...... 10. From the various judgments of the Supreme Court above referred to and other High Courts it is clear that the Tribunal's order under section 254(2) is not to review its earlier order but only to amend it with a view to rectify any mistake apparent from the record. What can be termed as "mistake apparent?". "Mistake" in general means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault, a misunderstanding, a misconception. Mistake in taxation laws has a special significance. It is mostly subjective and the dividing line is thin and indiscernible. "Apparent" means visible, capable of being seen, easily seen, obvious plain, open to view, evident, appears, appearing as real and true, conspicuous, manifest, seeming. The plain meaning of the word "apparent" is that it must be something which appears to be ex-facie and incapable of argument and debate. If such a "mistake apparent on the face of record" is brought to the notice, section 254(2) empowers the Tribunal to amend the order passed under section 254(1). Amendment of an order-does not mean obliteration of the order originally passed and its substitution by a new order. What is mistake apparent on the face of the record or where does a mistake cease to be mere mistake, and become mistake apparent on the face of the record is rather difficult to define precisely, scientifically and with certainty. An element of indefiniteness inherent in its very nature and it must be discernible from the facts of each case by judiciously trained mind. Mere existence of a mistake or error would not per se render the order amenable for rectification, but such a mistake must be one which must be manifest on the face of the record. 8.5 The Ld. also referred to another decision of Hon’ble Madras High Court in the case of CIT vs. R. Chelladurai (118 ITR 108) which has brought out the distinction between the power of rectification vis-a-vis the power of review in the context of subsequent decision of the Supreme Court by holding as under: - The result of the miscellaneous application filed by the ITO being accepted by the Tribunal would only have rendered the appeal against the order of the AAC being - 12 - dismissed without any further aspect having to be gone into by way of reviewing its earlier order. The order dated December 28, 1971, in so far as it dealt with the quantum was without jurisdiction. The Tribunal can only rectify the mistake. Interference with quantum cannot be effected in exercise of the power of rectification. It would amount to a reconsideration of the appeal, for doing which the Tribunal has no power or authority. Whether Rs.3,000 was leviable as penalty or not is not a mistake apparent from the record. 8.6 The Ld. AR also referred to the decision of Hon’ble Andhra Pradesh High Court in the case of Prefab Gratings Ltd. vs. ACIT (366 ITR 550) and also the decision of Calcutta High Court in CIT vs. Peerless General Finance & Investment Co. Ltd. (59 Taxmann.com 370) to support various propositions. The decision of Hon’ble Madras High Court in CIT vs Baer Shoes (India) P. Ltd. (331 ITR 435) was also referred wherein Hon’ble Court quashed the attempted re- assessment based on the subsequent Supreme Court decision and according to the Madras High Court, the interpretation of law by the Supreme Court would not give scope for the presumption of escapement of income inasmuch as the rectification proceedings u/s 254(2) of the Act being much narrower than the re-opening proceedings u/s 147 of the Act, the present attempt of the Revenue seeking review of the earlier order(s) passed in the guise of mistake apparent from record is not sustainable in law. 8.7 The Ld. AR submitted that the decision of Hon’ble Supreme Court in ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (305 ITR 227) should be understood in the context in which it declared law and the said law cannot be made applicable to the facts of the present case. In the said case, a binding decision was rendered just prior to the decision of the Appellate Tribunal which was not brought to their notice and hence it was correctly held by the Supreme Court that the said - 13 - mistake would fall within the ambit of Section 254(2) of the Act by granting such a concession to the tax payers (not to the Revenue) by following the jurisprudence expounded by the Apex Court which is captured in Para 45 of the said order. However, in Para 44 of the said decision, the golden rule namely the doctrine of 'prospective overruling' and its philosophy is captured / noticed by the Apex Court. The said prospective over-ruling theory is applicable to the facts of the present case / revenue matter and the said golden rule and its philosophy make the reliance placed by the Revenue on the decision reported in Southern Industrial Corp. Ltd. (258 ITR 481) and the decision rendered in the case of K.S. Gopalasamy & Others (16 STC 854 (Mad.) as redundant and not applicable. The exceptional golden rule propounded by the Supreme Court is applicable to the revenue matters like the one being considered by this Hon'ble Bench. 8.8 The Ld. AR thus pleaded that there was absolutely no scope as well as no justification for the Revenue to seek the review of the earlier order(s) of this Hon'ble Bench in the guise of stating mistake apparent from record within the scope of Section 254(2) of the Act and therefore, the applications were liable to be dismissed. 8.9 The Ld. AR made another submission that decision(s) rendered by the Bench is in the context of the limited scope of issuance of intimation order u/s 143(1) of the Act and in the context of the said provisions, there exist conflicting decisions of Tribunal rendered even after the decision of Hon’ble Apex Court. Therefore, there was no reason to make any interference u/s 254(2). 8.10 On the issue of objection raised by the Revenue on the ground that the appeals were heard without granting time to file cross objection - 14 - in terms of Section 253(4) of the Act, the Ld. AR submitted that the impugned order(s) were dismissed in its entirety and hence there was no legal scope for the Petitioner/ Revenue to be aggrieved by taking a strange stand of its inability to file cross-objection as per Section 253(4) of the Act in view of the early disposal of the appeal(s) in terms of the law existed at the said point in time. 8.11 The legal propositions were thus summarized by Ld. AR as under: - (a) The provisions of Section 254(2) of the Act is narrow and limited in scope. (b) The review of the order being not permitted under the statute cannot be sought for in the guise of rectification of mistake apparent from record. (c) The power of rectification u/s 254(2) is akin/ essentially similar to Rule 1 Order XLVII of Code of Civil Procedure, 1908 thereby negating the present attempt of the Petitioner / Revenue in seeking review based on the subsequent judgment of the Apex Court on the ground of mistake of law. (d) There is no mistake committed in the original order(s) which are based on the law as it stood at the point of decision rendered therein by this Hon'ble Bench. (e) The doctrine of prospective over-ruling would negate the present attempt of Petitioner / Revenue in seeking review in the guise of mistake of law in the original order(s) in consequence to the subsequent decision of the Supreme Court. 8.12 By way of separate written submissions, Ld. AR submitted that in Tribunal order dated 11.04.2022, a liberty was given to revenue to seek rectification of the order in accordance with law for any valid reasons or in case the dues were found to have been deposited by the assessee beyond due date of furnishing of return of income. The Ld. AR submitted that the present applications seek recall of the order on two grounds viz. the order was passed without waiting for the mandatory period of 30 days as per sec.253(4). Secondly, the revenue seeks recall of the order by relying on the subsequent decision of Hon’ble Supreme Court. However, in the written submissions dated 19.04.2023, the revenue has pleaded for recall / amendment of the order. The Ld. AR raised an objection that MA is signed by the Deputy - 15 - Commissioner of Income Tax Officer, Circle-I, Tirupur which is not valid since the intimation u/s.143(1) was issued by DCIT, CPC. The Ld. AR referred to the decision of Tribunal in 99 ITD 310 wherein it was held that the Miscellaneous Petition as well as the appeals are to be signed by the Assessing Officer and none other than the Assessing Officer. The Ld. AR also submitted that the application deserve to be dismissed since the mandates as prescribed in Rules 15 and 34A(2) of the ITAT Rules have not been adhered to at all. 8.13 Another point urged by Ld. AR was that the principle of retrospective legislation is not 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 is interpreted by the Supreme Court only when there is a debate or doubt on the interpretation of any provision of a statute requiring interpretation by the Supreme Court or when there is a conflict of judicial opinion on a provision of a statute between the different High Courts of India, which is required to be resolved and settled by the Supreme Court. The law laid down by the Hon'ble 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 / doubt / conflict that existed prior to the decision of Hon’ble Supreme Court setting at rest such debate. 8.14 The Ld. AR sought distinction in the facts of case law rendered by Hon’ble High Court of Madras in the case of Southern Industrial Corporation Ltd v CIT (258 ITR 481). - 16 - 9. Shri T. Banusekar (appearing in MA Nos.194 to 198 & 201/Chny/22) referred to the decision of Hon’ble High Court of Madras in the case of Southern Industrial Corporation Ltd v CIT (supra) wherein it was held as under: - "When a statutory provision is interpreted by the Apex Court in a manner different from the interpretation made in the earlier decisions by a smaller Bench, the order which does not conform to the law laid down by the larger Bench in the later decision which decision would constitute the law of the land and is to be regarded as the law as it always was, unless declared by the court itself to be prospective in operation, would clearly suffer from a mistake which would be apparent from the record. The rectification under section 154(1) on the ground that the order sought to be rectified is not in conformity with the law declared by the Apex Court is required to be upheld." The Ld. AR submitted that the claim was allowed by Tribunal by following the decision of jurisdictional High Court in CIT v Industrial Security & Intelligence India Pvt. Ltd (supra). The Ld. AR submitted that on the date of hearing, Tribunal had no option but to follow the binding decision of Hon'ble Jurisdictional High Court which got subsequently reversed in Checkmate Services (P) Ltd v CIT (supra). The Ld. AR referred to the decision of Jurisdictional High Court in Sree Palaniappa Transports v CIT [1999] 238 ITR 492 (Mad) as well as the decision of Hon’ble Kerala High Court in P.T.Manuel & Sons v CIT [2021] 434 ITR 416 as well as the decision of Hon’ble Calcutta High Court in the case of Jiyajeerao Cotton Mills Ltd. v ITO & Ors. [1981] 130 ITR 710 to support the fact that the order of the Hon'ble Income Tax Appellate Tribunal cannot be rectified u/s.254(2) on the basis of a subsequent decision of the Hon'ble Supreme Court. The Ld. AR submitted that the decision in Southern Industrial Corporation Ltd v CIT (supra) was rendered in the context of section 154 which deals - 17 - with the powers of an Income Tax Authority to rectify a mistake apparent on record in an order. Though section 254(2) may be couched in similar language, one important factor that needs to be borne in mind is that even after the decision of the Hon'ble Supreme Court in Checkmate Services (P) Ltd v CIT [2022] 448 ITR 518 (SC) it has been held by various benches of the Tribunal that disallowance u/s.36(1)(va) cannot be made in an intimation u/s.143(1). Few of these decisions are the decision of Jaipur Tribunal in Paris Elysees India Pvt Ltd v DCIT (TS-77-ITAT-2023-JPR), the decision of Mumbai Tribunal in P.R. Packaging Service v ACIT [2023] 199 ITD 724 (Mum). However, a contrary view has been taken in number of other cases such as in Electrical India v ADIT in ITA No. 789/Chny/2022- Chennai ITAT, Savleen Kaur v ITO [2023] 147 taxmann.com 402 (Delhi - Trib). Thus, even after the cited decision of the Supreme Court, the impugned issue is debatable issue which could not be subject matter of rectification u/s.254(2). The Ld. AR submitted that the issue which needs to be considered is whether in a Miscellaneous Application, another Bench of Tribunal can hold that an order rendered by other benches are incorrect and that therefore the revenue’s miscellaneous application is to be allowed. If the revenue's miscellaneous applications are allowed, the same would amount to holding that the orders of the Tribunal taking a view favoring the assessee would be incorrect orders which is impermissible u/s 254(2). 10. Shri N.V. Balaji, appearing in MA/131/Chny/22, submitted that the decision of Tribunal follows binding judicial precedent in CIT vs Industrial Security & Intelligence India (P.) Ltd (supra). On the date of passing impugned order, the said issue was covered by this decision - 18 - and there was no decision of Hon’ble Apex Court that propounds contrary view in comparison with the decision of the Hon'ble Jurisdictional High Court. The Ld. AR submitted that till the rendering of said decision by Hon’ble Apex Court, the issue was debatable one and contrary views emerged from different High Courts. The Hon'ble Tribunal as on the date of passing the order rightly concurred with the decision of the binding jurisdictional High Court in the case of CIT vs Industrial Security & Intelligence India (P.) Ltd (supra). The Ld. AR submitted that subsequent decision of Hon'ble Supreme Court could not be relied upon to conclude that the order of the Tribunal passed by relying on the Jurisdictional High Court was mistake apparent from record. The Ld. AR referred to the decision of Hon'ble Madras High Court in the case of Sree Palaniappa Transports v CIT [1999] 238 ITR 492 (Mad) as well as the decision of Hon’ble Apex Court in CIT vs Reliance Telecom Ltd. (440 ITR 1) to support the propositions. 11. Ms. Subhashree R., appearing in MA No.152/Chny/2022 opposed interference in the order on the ground that the assessee had also appealed against addition to income based on erroneous entry in Form 3CA-CD which has been directed to be deleted after factual verification. It is submitted that this portion of the order is not within the scope of the present application. It was pleaded that even if order in ITA/14/CHNY/2022 is modified, the deletion of addition based on erroneous tax audit report may not be disturbed. The Ld. AR submitted that there was no error apparent from the record in the order passed by the Hon'ble Tribunal. The Ld. AR submitted that the statutory provisions discussed in Checkmate Service Pvt Limited (supra) were those prior to insertion of the Explanation-5 to Sec.43B and - 19 - Explanation-2 to Sec.36(1)(va) and the question as to whether the Explanations would apply retrospectively was not before the Hon'ble Supreme Court. However, the decision of Tribunal adjudicated the question of retrospectivity also which was not before the Hon'ble Apex Court. Therefore, there is no mistake apparent from record in the order. On the objection of revenue that mandatory time of 30 days was not granted to file cross-objections, Ld. AR submitted that this objection is contrary to facts since that department had sufficient time to advance its objections. 12. The Ld. AR, appearing in MA Nos.129 & 130/Chny/22, submitted that Tribunal has no power to review its own order and therefore, the application of the revenue may be dismissed as infructuous. 13. The Ld. AR, appearing in MA/193/Chny/2022, submitted that revenue, while processing the return of income u/s 143(1), relied on the amendments made to sections 36(1)(va) and 43B in the Finance Act 2021 and held them to be retrospective and disallowed the claim of the assessee. However, Tribunal reversed the same. The Ld. AR relied on the decision of Hon'ble Supreme Court in the case of Reliance Telecom Ltd. (440 ITR 1) to contend that the order passed by the Tribunal recalling its earlier order is beyond the scope and ambit of the powers under section 254(2). In exercise of the powers under section 254(2), the ITAT may amend any order passed by it to rectify any mistake apparent on record only. The Tribunal cannot revisit its earlier order and go into detail on merits. The powers under section 254(2) are only to correct and/or rectify the mistake apparent from the record. 14. The other arguments are, more or less, on similar lines and therefore, not specifically referred to by us for the sake of brevity. - 20 - 15. Arguments on behalf of Revenue 15.1 The Ld. Sr. DR submitted that the decision rendered by Hon’ble Supreme Court in Checkmate Services Pvt. Ltd. (supra) has triggered the present application. In para 53 & 54 of the judgment, the Hon’ble Court has held that there is a marked distinction between the nature and character of the two amounts - the employer's liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees' income and held in trust by the employer. This marked distinction has to be borne in mind while interpreting the obligation of every assessee under Section 43B. 15.2 The Ld. Sr. DR thus submitted that after introduction of Sec.36(1)(va) w.e.f. 1.4.1988, the position has always been that employers contribution and employees contribution recovered by the employer, are two different things. The amount recovered by the employer from their employees towards contribution for PF & ESI constituted income in the hands of the employer u/s 2(24) of the Income Tax Act and the same is allowed deduction u/s 36(1)(va) only after the condition of payment as specified is satisfied. The Hon'ble Supreme Court has made it clear that the law has always stood in this manner and the law did not come into being after the judgement of Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. (supra). The Ld. Sr. DR submitted that even on the day when the Hon'ble ITAT had heard and pronounced the impugned orders, the law u/s.36(1)(va) was clear and thus, the Hon'ble ITAT has committed a mistake in law in interpreting the statute that the remittances made - 21 - beyond the time limit prescribed under the relevant law could be allowed as a deduction. 15.3 Referring to the decision in the case of New Noble Educational Society in Civil Appeal No.37958/2014 dt.19/10/2022, Ld. Ld. Sr. DR submitted that Hon'ble Supreme Court has specifically mentioned vide para-78 that their judgement will apply prospectively. Thus, it is clear that unless it is mentioned specifically by the Hon'ble Supreme Court, any judgement by the Hon'ble Supreme Court applies retrospectively from the date of enactment. This also makes it clear that the law u/s.36(1)(va) of the Act has always stood as it was explained by the Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. (supra) and any contrary view had no place. 15.4 The Ld. Sr. DR relied on the decision of Hon'ble Madras High Court in the case of Southern Industrial Corp. Ltd. (258 ITR 481) and the decision rendered in the case of K.S. Gopalasamy & Others (16 STC 854 (Mad.) (258 ITR 481) to support the application. 15.5 In the case of Southern Industrial Corp. Ltd. (supra), it was held by the Hon'ble Court that "When a statutory provision is interpreted by the Apex Court in a manner different from the interpretation made in the earlier decisions by a smaller Bench, the order which does not conform to the law laid down by the larger Bench in the later decision which decision would constitute the law of the land and is to be regarded as the law as it always was, unless declared by the Court itself to be prospective in operation, would clearly suffer from a mistake which would be apparent from the record. The rectification under section 154(1) on the ground that the order sought to be rectified - 22 - is not in conformity with the law declared by the Apex Court is required to be upheld. 15.6 Similarly, Hon'ble High Court of Andhra Pradesh in the case of Praga Tools Ltd. (252 ITR 813) held that: - "10. In the light of the above judgement of the Apex Court, the documents in question that are supplied under various collaboration agreements would constitute 'plant' for the purpose of depreciation. In the light of the said finding, the assessee is entitled for depreciation. Therefore, the rectification made by the AAC disallowing the depreciation originally granted, is not in accordance with law laid down by the Apex Court. Though at the time when the order was passed may be in accordance with the decision of the jurisdictional High Court, but in view of the subsequent decision of the Apex Court, the assessee is entitled for depreciation and the rectification order passed by the AAC is not in accordance with law." 15.7 Similarly, in Saurashtra Kutch Stock Exchange Ltd (305 ITR 227), it was held that non-consideration of a decision of Jurisdictional Court or of the Supreme Court could be said to be a mistake apparent from the record. This decision considers the decision of Hon’ble High Court of Gujarat in the case of Suhrid Geigy Limited v. Commissioner of Surtax, Gujarat, (1999) 237 ITR 834 (Guj) wherein it was held by the Division Bench of the High Court that if the point is covered by a decision of the Jurisdictional Court rendered prior or even subsequent to the order of rectification, it could be said to be "mistake apparent from the record" under section 254(2) of the Act and could be corrected by the Tribunal. It was finally held as under: - 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 Court operated for quite sometime, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood." - 23 - 15.8 Regarding adjustment of the impugned amounts u/s 143(1)(a), Ld. Sr. DR submitted that the law requires the assessee to upload the audit report in Form 3CD along with the return of income in cases liable for audit u/s.44AB and any return of income not accompanied by the audit report is considered is defective. The audit report in these cases clearly indicated the delay of remittance in contributions recovered from the employees towards ESI & PF. Such audit report forms part of information in the return of income and has to be taken into account in terms of Sec.143(1)(a)(ii) and the AO was well within his powers u/s 143(1)(a) in making the disallowance as held by Chennai Tribunal in ITA No. 765 of 2022 in the case of Sree Gokulam Chit and Finance Co. P. Ltd. dated 21.12.2022 wherein it was held that: - "While processing return of income u/ s 143(1)(a)(ii) of the Act, an incorrect claim, if such incorrect claim is apparent 'from any information in the return of income is to be disallowed and such adjustment is to be made on the total income or loss to the assessee". Further, even prior to amendment by Finance Act, 2021, the provisions of Sec.143(1)(a)(iv) allowed such adjustments as it amounts to only disallowance of expenditure u/s.36(1)(va). The contributions recovered from the employees is a deemed income as on the date of recovery itself u/s. 2(24) of the IT Act. At the time of remittance, the assessee' s claim is only an expenditure and as such the un-amended provision of Sec.143(1)(a)(iv) clearly allow the same. The Ld. Sr. DR also referred to the decision of Chennai Tribunal in Electrical India (ITA No. 789/Chny/2022) and group of cases which were held in Revenue's - 24 - favour by holding that such an adjustment could be made in an intimation issued u/s 143(1). Our findings and Adjudication 16. Having considered rival submissions and upon perusal of case records, we proceed to deal with the present applications. We find that in para-5 of common Tribunal order dated 11.04.2022, the bench relied upon earlier decision rendered in M/s Benco Thermal Technologies Private Ltd. V/s Asstt. Director of Income Tax (ITA No.281/Chny/2021 on 23.02.2022). In para-5 of Benco’s decision, it was noted by the bench that though the provisions of Sec.43B covers only the Employer’s contribution and not employees’ contribution, still the higher courts have held that the provisions of Sec.43B would be applicable to employees’ contribution as well. In other words, if the employees’ contribution has been paid by the assessee before due date of filing of return of income as per Sec.139(1), the deduction would still be available to the assessee notwithstanding the fact that the payment was made beyond the due date as per the applicable Acts & Rules governing the welfare funds. 17. One of decision was the decision of Hon’ble Karnataka High Court in the case of Essae Teraoka (P.) Ltd. (43 Taxmann.com 33: 04.02.2014) which distinguished the case law of Hon’ble Gujarat High Court in the case of CIT V/s Gujarat State Road Transport Corpn. (41 Taxmann.com 100; 26.12.2013) and held that employees’ contribution so paid by the assessee before due date of filing of return of income u/s 139(1) would be an allowable deduction. Similar favorable view was taken by Hon’ble Rajasthan High Court in the case of Pr. CIT V/s Rajasthan State Beverages Corpn. Ltd. (84 - 25 - Taxmann.com 173; 04.08.2016) which followed the earlier decision in CIT V/s State Bank of Bikaner & Jaipur (43 Taxmann.com 411; 06.01.2014). Similar favorable view was taken by various other high courts. At the same time, a view against the assessee was taken by Hon’ble Kerala High Court in Popular Vehicles & Services P. Ltd. V/s CIT (96 Taxmann.com 13; 02.07.2018) as well as Hon’ble Gujarat High Court in CIT V/s Gujarat State Road Transport Corpn. (supra). In these cases, the view of Hon’ble Courts was that the provisions of Sec.36(1)(va) and Sec.43B operate differently and therefore, any late remittance of Employees’ Contribution beyond due date as specified in relevant statutes governing those funds, would result into denial of deduction to the assessee in terms of Sec.36(1)(va) r.w.s. 2(24)(x). 18. So far as the jurisdictional High Court is concerned, a favorable view was taken by coordinate bench of Hon’ble Court in CIT v. Industrial Security & Intelligence India (P.) Ltd. [TCA No. 585 of 2015, dated 24.07.2015] which upheld the view of the Tribunal taking favorable view relying upon the decision of Hon’ble Supreme Court in the case of CIT V. Alom Extrusions Ltd. (supra). However, in later decision titled as Unifac Management Services (India) P. Ltd. V/s DCIT (100 Taxmann.com 244; 23.10.2018), the single judge bench of Hon’ble Court has held that the scope of Section 43B and Section 36(1)(va) are different and thus, there is no question of reading both provisions together to consider as to whether assessee-employer is entitled to deduction in respect of sum belatedly paid towards employee contribution and therefore, for considering such question, application of section 36(1)(va) read with section 2(24)(x) alone is proper course. It was further held that though an amendment has been - 26 - introduced to Section 43B, whereby actual date of payment is enough for considering deduction, if such date falls before date for filing return but in absence of any amendment made to section 36(1)(va), both contributions, viz., 'employees' and 'employers' cannot be brought under same scope and ambit of section 43B to claim deduction. In fact, Hon’ble Court in subsequent decision titled as M/s. Orchid Pharma Ltd. (TCA No. 430 & 421 of 2019 dated 08.07.2019) did not follow its own decision in the case of M/s. Industrial Security and Intelligence India Private Ltd. (supra) and had observed about the various decisions favoring revenue and remitted the issue back to lower authorities. It could thus be said that even on 11.04.2022 i.e., the date on which the decision was rendered by the Tribunal, there were divergent view and there exist conflict of opinion even amongst jurisdictional High Court. Therefore, it could not be said that even on the date of rendering of decision by Tribunal, this issue stood covered conclusively in assessee’s favor by jurisdictional High Court. 19. In Benco’s decision, the bench relied on another decision of Tribunal in Adyar Anand Bhawan Sweets India Pvt. Ltd. V/s ACIT (134 Taxmann.com 56; 08.12.2021) to hold that the amendment to Sec.36(1)(va) by way of insertion of explanation-2 and amendment to Sec.43B by way of insertion of Explanation-5 as brought in by Finance Act, 2021 would operate prospectively only. Accordingly, a view was taken in favor of the assessee. However, this position could be said to be no longer valid after the cited decision of Hon’ble Apex Court in Checkmate Services P. Ltd. (supra). It is not correct to say that the effect of amendment has not been considered by Hon’ble Apex Court in this decision since the amendment made by Finance Act, 2021 was - 27 - already there in the statute book at the time of rendering of this decision. This argument thus made by Ld. AR could not be accepted. 20. Undisputedly, this controversy has been put to rest by Hon’ble Supreme Court in the case of Checkmate Services P. Ltd. (supra) by deciding this issue in revenue’s favor. As already noted in preceding para-4, the Hon’ble Supreme Court, in detailed judgment, observed that one of the rules of interpretation of a tax statute is that if a deduction or exemption is available on compliance with certain conditions, the conditions are to be strictly complied with. This rule is in line with the general principle that taxing statutes are to be construed strictly, and that there is no room for equitable considerations. The deductions are to be granted only when the conditions which govern them are strictly complied with. It was further held that the decision in Alom Extrusions Ltd. (319 ITR 306) did not consider the fact of the introduction of Section 2(24)(x) or in fact the other provisions of the Act. It was finally held that there is clear distinction between employer’s contribution which is its primary liability under law [in terms of Section 36(1)(iv)] and its liability to deposit amounts received by it or deducted by it from its employees’ [in terms of Sec. 36(1)(va)]. The former forms part of the employers’ income, and the later retains its character as an income (albeit deemed), by virtue of Section 2(24)(x) and therefore, subjected to conditions spelt out by Explanation to Section 36(1)(va) i.e., depositing such amount received or deducted from the employee on or before the due date. In other words, there is a marked distinction between the nature and character of the two contributions – the employer’s liability is to be paid out of its income whereas the second is deemed to be an income, by definition, since it is the deduction from - 28 - the employees’ income and held in trust by the employer. This marked distinction has to be borne in mind while interpreting the obligation of every assessee under Section 43B. If the same is not deposited as per mandate of Sec.36(1)(va), the deduction of the same would not be available to the assessee. It could thus be seen that Hon’ble Court has not laid down any new proposition of law but only interpreted an existing provision of law and put to rest the ongoing controversy. 21. Article 141 of the constitution of India provides that the law declared by Supreme Court shall be binding on all courts within the territory of India. Further, law laid down by Supreme Court operates retrospectively and is deemed to be the law as it has always been unless Supreme Court hold the ruling would only operate as prospectively. One fine example of prospective ruling is the decision of Hon’ble Supreme Court in the case of M/s New Noble Educational Society (2023) 290 Taxman 206 (SC). The Hon’ble Apex Court in its aforesaid judgment had, while departing from its previous rulings regarding the meaning of the term “solely” as used in Section 10(23C)(vi) of the Act, held that in order to avoid disruption, and to give time to institutions likely to be affected to make appropriate changes and adjustments, it would be in the larger interests of society that the law declared in the said judgment operates prospectively. In para-78, Hon’ble Court specifically observed that since the present judgment has departed from the previous rulings regarding the meaning of the term ‘solely’, in order to avoid disruption, and to give time to institutions likely to be affected to make appropriate changes and adjustments, it would be in the larger interests of society that the present judgment operates hereafter. As a result, it was hereby directed that the law - 29 - declared in the present judgment shall operate prospectively. However, no such directions have been given in Checkmate Services P. Ltd. (supra). Therefore, in the light of this judgment, it was to be presumed that the law was always like that and the two contributions viz. Employers’ contribution and Employees’ contribution were to be given separate treatment under the Act. Therefore, there is no question of retrospective or prospective application of this judgment rather it was to be presumed that the proposition of law was always like that and nothing else. For the said reason, the clarification brought in by Finance Act, 2021 would lose much of relevance since from the inception of the provisions itself, it is to be presumed that law was always like that. The argument that the decision in Checkmate Services P. Ltd. (supra) did not consider the effect of amendment is dismissed. Another argument that the decision would apply prospectively also stand dismissed. The plea of principle of prospective ruling or the argument that this decision would operate prospectively is also dismissed. We concur with the plea of revenue that there is mistake apparent on record in terms of Sec. 254(2) considering the latest ruling of Hon’ble Apex Court. 22. In the judgment of Hon’ble Apex Court in the case of CIT Vs. Reliance Telecom Limited (2022) 440 ITR 1 (SC), as extensively relied on behalf of the assessee, the Hon’ble court observed that the powers u/s.254(2) of the Act are akin to those under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. The Ld. AR relies on the same to submit that as per “Explanation” to Order XLVII, Rule 1 of the Code of Civil Procedure (5 of 1908), a subsequent decision of a superior court cannot form a ground for the review of a judgment. Therefore, the - 30 - power vested with the Tribunal u/s. 254(2) of the Act could not be exercised to interfere in the order based on subsequent decision of Apex Court. 23. We find that the facts and circumstances in Reliance Telecom Limited (supra) are completely different. The said observations have been made by Hon’ble Court in the light of the fact that Tribunal originally passed a detailed order and held the payment made by the assessee company for purchase of software would be royalty. However, later on, in exercise of powers u/s.254(2), Tribunal completely recalled original order and re-heard the entire appeal on merits as if it was deciding the appeal against the order passed by the CIT. It was thus observed that u/s 254(2), Tribunal could only rectify/correct any mistake apparent from record. In our considered view, the reference by the Hon’ble Apex Court to Order XLVII, Rule 1 of CPC, 1908 was for the purpose of making it clear that the Tribunal in exercise of powers vested u/s. 254(2) cannot revisit its earlier order and go into the details on merits. This view is supported by the judgment of a three-judge bench of the Hon’ble Apex Court in the case of Income Tax Officer Vs. Ashok Textiles Ltd. (1961) 41 ITR 732 (SC). This decision was rendered in the context of Section 35 of 1922 Act (pari materia to Section 154) and Hon’ble Court observed that the restrictive operation of power of review under Order XLVII, Rule 1 of Code of Civil Procedure, 1908 is not applicable in case of Section 35 of 1922 Act. Thus, in our understanding, the Tribunal is duly empowered to rectify/correct any mistake apparent from record u/s 254(2) but it cannot review its order, i.e., revisit its earlier order and go into details - 31 - on merits. Therefore, this case law stand on different footing and does not render any assistance to the case of the assessee. 24. The decision of Hon’ble High Court of Madras in CIT vs. Sical Logistics Ltd. (supra) merely states that non-consideration of decision of Hon'ble Bombay High Court cannot be construed as mistake as contemplated under section 254(2) which is not the case here. The decision of Hon’ble Gujarat High Court in Vrundavan Oil and Ginning Mills Ltd. (supra), considering the decision of Delhi High Court in the case of CIT vs. Maruti Insurance Distribution Services Ltd. (supra), has observed that the power to rectify an order u/s 254(2) is extremely limited and it does not extend to correcting the errors of law or re-appreciating the factual findings. Those properly fall within the appellate review of an order of Court of first instance. What legitimately falls for consideration are errors (mistakes) apparent from record. There is absolutely no quarrel on this proposition. In the present case, there is no dispute on factual findings. Further, considering Article 141 of the constitution, we would have no hesitation in applying the binding law laid down by Hon’ble Apex Court. If the error is not corrected, there would certainly remain a mistake apparent from record since the adjudication of Tribunal would not be in line with the binding law laid down by Hon’ble Court in Checkmate Services P. Ltd. (supra). In the decision of Hon’ble Bombay in CIT vs Sudhir M. Mehta (supra), the decision of Tribunal was rendered much before the amending law receiving the Presidential assent. In the circumstances, Hon’ble Court confirmed rejection of miscellaneous application filed by the Department. Therefore, this case law is also not applicable to the facts of present case. - 32 - 25. The decision of Hon’ble Madras High Court in Express Newspaper Ltd. (320 ITR 12) reiterates the principle that only a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected under section 254(2). An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the record means an error which strikes one on mere looking and does not need a long drawn out process of reasoning on points on which there may be conceivably two opinions. The error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of possible views, the case cannot be said to be covered by an error apparent on the face of the record. The expression "mistake apparent from the records" contained in sections 154 and 254(2) has wider content than the expression "error apparent on the face of the record" occurring in Order 47 Rule 1 of CPC. The restrictions on the power of review under Order 47 Rule 1 of CPC do not hold good in the cases of sections 254(2) and 154 of the Act. Section 254(2) does not confer power on the Tribunal to review its earlier order. Further Under the grab of rectification of mistake, it is not possible for a party to take further chance of re-arguing the appeal already decided. What can be rectified under section 254(2) is a mistake which is apparent and patent. The mistake has to be such for which no elaborate reasons or enquiry is necessary. Where two opinions are possible then it cannot - 33 - be said to be a mistake apparent on the record. When prejudice resulting from an order is attributable to the Tribunal's mistake, error or omission, it is its bounden duty to set it right. The purpose behind the enactment of section 254(2) of the Act to amend any order passed under subsection (1), if any mistake apparent from the records is brought to the notice of the Tribunal, is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent power of the Tribunal. If prejudice is resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error, then the Tribunal would be justified in rectifying its mistake. Rectification can be made only when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. The rectification is not possible if the question is debatable. A point which was not examined on facts or in law cannot be dealt with as a mistake apparent from the record. No error can be said to be apparent on the face of the record if it is not manifest or self evident and requires an examination or argument to establish it. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, is a clear case of error apparent on the face of the record. 26. Though Ld. AR has referred this case law, however, the underlined observations, in fact, support the case of the revenue. Considering the decision in Checkmate Services P. Ltd. (supra), the - 34 - decision of Tribunal is manifestly erroneous and this error could not be permitted to remain on record and we are duty bound to rectify the same. The decision in CIT vs. R. Chelladurai (supra) also reiterates the same principle that review of the order is impermissible. The Tribunal can only rectify the mistake and it has no power to reconsider the appeal. The other decisions as referred to in para 8.6 are also on the similar lines. We find that there is no quarrel on the propositions laid down in these judicial decisions. 27. Shri T. Banusekar has referred to the decision in Sree Palaniappa Transports v CIT (supra). In that decision, the Tribunal rendered the decision against the assessee after noticing the conflicting decisions. Subsequently, jurisdictional High Court took view favoring the assessee and the assessee sought rectification of order. The Tribunal rejected the same on the ground that the subsequent decision of the Madras High Court would become binding on it in respect of orders pronounced after the date of the said judgment. The Hon’ble Court said power u/s 254(2) is not different from the power u/s 154. As per section 254(2), a Tribunal deciding a case on certain debatable issues, wherein there was no decision of the jurisdictional High Court, could not be deemed to have made a mistake because subsequent to the decision of the Tribunal, a judgment has been rendered by the jurisdictional High Court. However, in the present case before us, the law has been declared by Hon’ble Supreme Court which applies from the date of inception of the statutory provisions. In terms of Article 141, we are bound to follow the same. In the decision of P.T.Manuel & Sons v CIT (supra), it has been held that a decision taken subsequently in another case is not part of the record of the - 35 - case. A subsequent decision, subsequent change of law, and/or subsequent wisdom dawned upon the Tribunal, are not matters that will come within the scope of 'mistake apparent from the record' before the Tribunal. The different view taken by the very same Tribunal in another case, on a later date, could be relied on by either of the parties while challenging the earlier decision or the subsequent decision in an appeal or revisional forum, but the same is not a ground for rectification of the order passed by the Tribunal. It could at the most be a change in opinion based upon the facts in the subsequent case. The subsequent wisdom may render the earlier decision incorrect, but not so as to render the subsequent decision as a mistake apparent from the record calling for rectification u/s 254 of the Act. This decision is thus in the context of subsequent decision of the Tribunal. In the decision of Hon’ble Calcutta High Court in Jiyajeerao Cotton Mills Ltd. v ITO & Ors. (supra), it was held 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 is interpreted by the Supreme Court only when there is a debate or doubt on the interpretation of any provision of a statute requiring interpretation by the Supreme Court or when there is a conflict of judicial opinion on a provision of a statute between the different High Courts which is required to be resolved and settled by the Supreme Court. 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 - 36 - Supreme Court setting at rest such debate or doubt or conflict. However, in the present case, we hold a view that the decision of Hon’ble Court would operate since the inception of the provisions and it was to be presumed that the law was always like that. The two contributions viz. Employers’ contribution and Employees’ contribution were to be given separate treatment under the Act. Therefore, there is no question of retrospective or prospective application of this judgment rather it was to be presumed that the proposition of law was always like that and nothing else. Therefore, the cited case laws are distinguishable on facts as well as principles. 28. The Ld. AR has also submitted that even after this decision of Hon’ble Supreme Court, there exist difference of opinion amongst various benches of the Tribunal. One view is that such an adjustment could not be made u/s 143(1) whereas other view is that such an adjustment could be made u/s 143(1). However, this argument is not of much relevance. The dispute, in the present appeals, is assessee’s claim of deduction for late remittance of welfare funds which stood covered in revenue’s favor. In the present applications, we are concerned to determine whether there exists any mistake apparent from record which would require indulgence u/s 254(2) and nothing more. There may be divergent views of benches of Tribunal on the issue of adjustment u/s 143(1) as stated by Ld. AR, however, the same would not of much relevance while dealing with present applications. The present applications hinges on ratio laid down by Hon’ble Apex Court in Checkmate Services P. Ltd. (supra). - 37 - 29. We find that the question whether rectification power u/s 254(2) could be exercised by Tribunal to bring the same in conformity with the subsequent judgment of Hon’ble Apex Court or that of the Hon’ble Jurisdictional High Court stood answered by the decision of Hon’ble Apex Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (supra) as well as in S.A.L Narayana Row, CIT Vs. Model Mills Nagpur Ltd. (1967) 64 ITR 67 (SC). In these decisions, it has been held that if a point is covered by the decision of the Hon’ble Supreme Court or that of the Hon’ble Jurisdictional High Court rendered prior to or even subsequent to the order proposed to be rectified, then it could be said to be a mistake apparent from record u/s.254(2) of the Act and could be corrected by the Tribunal. In Saurashtra Kutch Stock Exchange Ltd. (supra), Hon’ble Court clearly held 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 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 a 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 Court operated for quite some time, the decision rendered later on would have retrospective effect, clarifying the legal position which was earlier not correctly understood. The ratio of both these decisions clearly supports the present applications filed by the revenue and we are inclined to accept the same. - 38 - 30. In Southern Industrial Corp. Ltd. (258 ITR 481), Hon’ble High Court of Madras held that when a statutory provision is interpreted by the Apex Court in a manner different from the interpretation made in the earlier decisions by a smaller Bench, the order which does not conform to the law laid down by the larger Bench in the later decision which decision would constitute the law of the land and is to be regarded as the law as it always was, unless declared by the court itself to be prospective in operation, would clearly suffer from a mistake which would be apparent from the record. The rectification under section 154(1) on the ground that the order sought to be rectified is not in conformity with the law declared by the Apex Court is required to be upheld. Similarly, in Praga Tools Ltd. (252 ITR 813), Hon'ble High Court of Andhra Pradesh held that though at the time when the order was passed may be in accordance with the decision of the jurisdictional High Court, but in view of the subsequent decision of the Apex Court, the assessee is entitled for depreciation and the rectification order passed by the AAC is not in accordance with law. These case laws also support the applications filed by revenue. 31. Another argument that the power to file misc. application lies only with AO, CPC is bereft of any substance. Nothing has been shown to us that the officers filing the present applications are not authorized to do so. No violation of Tribunal Rules could be demonstrated before us. Therefore, this plea is to be rejected summarily. 32. We find that similar misc. application as filed by the revenue has already been allowed by Raipur Bench of Tribunal in N.R. Wires Pvt. Ltd. MA Nos.01/RPR/2023 & ors. dated 29.05.2023; SMC bench of Bangalore Tribunal in M/s Anjappar Chettinad AC Restaurant, MP Nos. - 39 - 14 & 15/Bang/2023 07.02.2023; Bangalore Tribunal in M/s Sattva Media and Consulting Pvt. Ltd., MP No.78/Bang/2023 dated 26.05.2023; Mumbai Tribunal in M/s SCNS Pvt. Ltd., MA No.114/Mum/2021 dated 27.06.2023. Similar view has been taken by several other benches of the Tribunal which has not been specifically elaborated here for the sake of brevity. 33. Therefore, on the facts and circumstances, we have no hesitation in applying the ratio laid down by Hon’ble Supreme Court in the case of Checkmate Services P. Ltd. (supra). This adjustment could very well be made while processing return of income u/s 143(1) as per our decision in Electrical India (ITA No. 789/Chny/2022). Accordingly, accepting the present application of revenue, the order under consideration i.e., ITA No.17/Chny/22 is modified and the impugned issue is decided against the assessee. The Ld. AO is directed to recompute the income of the assessee by disallowing late payment of Employees’ Contribution to PF / ESI which have been deposited beyond due date as specified in respective welfare ESI / PF acts. The order of Tribunal stand modified accordingly. 34. MA No.11/Chny/23 stands allowed whereas MA No.97/Chny/22 has been rendered infructuous. Order pronounced on 31 st July,2023 Sd/- Sd/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) उपा ! / VICE PRESIDENT लेखा सद( / ACCOUNTANT MEMBER चे5ई Chennai; िदनांक Dated : 31-07-2023 DS आदेश की Iितिलिप अ %ेिषत / Copy of the Order forwarded to : 1. अपीलाथ / Appellant 2. थ / Respondent 3. आयकर आयु>/CIT 4. िवभागीय ितिनिध/DR 5. गाडC फाईल/GF