ORDER
D. Manmohan, J.M.
1. By this application the assesses contends that the order of the Tribunal, E-Bench, Mumbai, dt. 13th Oct., 1998, suffers from a mistake apparent from record in view of the fact that the view taken by the Tribunal is not in conformity with the view taken by the Hon’ble Bombay High Court on 4th May, 2001 [Ship Scrap Traders and Ors. v. CIT and Ors.
2. Before the Tribunal the case of the assessee was that the activity of “ship-breaking” undertaken by the assessee is a manufacturing process and thus the assessee is entitled to claim deduction under Section 80HH and 80-1 of the Act. The Tribunal has not accepted the contention of the assessee in view of the decision of the Tribunal, Bombay Bench, in assessee’s own case for the asst. yr. 1987-88 [Asstt. CIT v. Trilok Ship-breaking Ltd. (1998) 61 TTJ (Mumbai) 80 : (1998) 66 ITD 114 (Mumbai)] wherein it was held that ship-breaking does not amount to manufacture of any article or thing.
3. On 4th May, 2001, .i.e., three years after the order passed by the Tribunal, the Hon’ble Bombay High Court has decided in the case of M/s Ship Scrap Traders that ship-breaking activity is a manufacturing activity. In view of the later decision of the Hon’ble Bombay High Court, the learned counsel submits that the order of the Tribunal suffers from a mistake apparent from record and needs rectification under Section 254(2) of the Act. However, the learned counsel has not furnished any case law in support of his contention that “a later decision of the jurisdictional High Court would give rise to a mistake apparent on record in the order passed by the Tribunal. On the other hand, the learned Departmental Representative strongly submitted that on the date when the Tribunal
considered the issue, there was no authoritative pronouncement of the Hon’ble Bombay High Court and under those circumstances the Tribunal had considered the issue on merits to arrive at the conclusion that ship-breaking is not manufacturing activity. Merely on account of a later judgment, it cannot be said that there is a mistake in the order of the Tribunal.
4. We have carefully considered the rival submissions and perused the records. In the case of CIT v. K. Venkateshwar Rao (1988) 169 ITR 330 (AP), the Hon’ble High Court observed that in order to consider as to whether there was a mistake apparent from record, in the order passed by the Tribunal, one has to see the law existing on the date when the concerned authority decided the issue and it cannot be said that such an order suffers from mistake apparent from record with reference to the judgment of jurisdictional High Court which was rendered much later. Similar view was taken in the case of Sree Palaniappa Transports v. CIT (1999) 238 ITR 492 (Mad) and Dr. Rajah Sir M.A. Muthiah Chettiar (Deed.) By LR v. CIT (1999) 238 ITR 505 (Mad). It may be noticed that in a case where the issue is finally decided by the Hon’ble Supreme Court, in view of Article 141 of the Constitution of India, it has to be treated as the law of the land on that issue from the date of inception of the said section. Similarly, a retrospective amendment can be deemed to be the law existing from the date the same was given retrospectivity. However, the order of a High Court cannot be equated to the aforementioned categories said to have become final. At any rate, there is no direct decision of the jurisdictional High Court on the issue as to whether a later judgment of the jurisdictional High Court would give rise to a mistake apparent on record in the order passed by the Tribunal earlier. Under these circumstances, and also in view of the view taken by the Hon’ble High Court of Madras and Andhra Pradesh, cited supra, we hold that the order of the Tribunal dt. 13th Oct., 1998, does not suffer from any mistake apparent from record. We, therefore, reject the miscellaneous application.