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Retrospective amendment after passing order does not lead to “apparent mistake”
Following HCL Comnet 305 ITR 409 (SC), the Tribunal took the view vide order dated 17.3.2009 that provision for bad debts debited to the P&L A/c could not be added to the “book profits” u/s 115JA. To supercede HCL Comnet, clause (g) was inserted in the Explanation to s. 115JA by the F. A. 2009 w.r.e.f 1.4.1998. The amendment received the assent of the President on 19.8.2009, after the order of the Tribunal was passed. The department filed a MA contending that in view of the said retrospective amendment, there was a “mistake apparent from the record”. HELD dismissing the application:
As per the law laid down in Sudhir Mehta 265 ITR 548 (Bom), where an order is passed as per the prevailing law, a retrospective amendment which comes into force after the date of the passing of the order does not show any mistake in the order.
See Also:
ACIT vs. Saurashtra Kutch 305 ITR 227 (SC) (
order passed contrary to even a subsequent judgement of the apex court/ jurisdictional High Court reflects an “apparent mistake”),
Venkatachalam v. Bombay Dyeing 34 ITR 143 and
S.A.L. Narayan Row 57 ITR 149 (
question whether there is an apparent mistake has to be seen as per the amended law) &
General Electric 112 ITR 246 (Cal) (
retrospective law shows a mistake which may not be “apparent”).
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