1990 PLP (Trib (PTD)

MUHAMMAD MUJIBULLAH SIDDIQUI (JUDICIAL MEMBER). --By above application the appellants seek rectification in the order dated 6‑3‑1988 in I.TA. No. 28/IB of 1986‑87.

2. Briefly stated the facts leading to this rectification application are that the appellants constructed a building on the portion of plot of land bearing No. 7 A, Gulberg‑2, Lahore, by raising loan from Muslim Commercial Bank and advance from National Development Finance Corporation. The appellants entered into an agreement with N.D.F.C., on 3‑7‑1983 whereby it was agreed that after construction of the building the ground floor shall be leased out to the N.D.F.C. and in order to enable the appellants to construct the hired accommodation and other service facilities the N.D.F.C. agreed to pay a sum of Rs. 9,21,000 as advance which was to be adjusted by making deductions every month in equal instalments from the monthly rent payable by the N.D.F.C. to the appellants for the lease period of live years. The detailed facts are already enumerated in the order dated 6‑3‑1988 and, therefore, we will refer to the relevant facts for the purpose of this rectification application very succinctly. In the Wealth Tax return for the assessment year 19;;5‑86 the appellants claimed liability of Rs. 12,92.000 including amount of unadjusted advance rent of Rs. 10.92,

265. The W.T.O. held that the advance rent was not a debt owed as contemplated in section. 2(m) of the Wealth Tax Act. He, therefore; disallowed the claim of liability to the extent of advance rent. Being aggrieved with this disallowance the appellants preferred first appeal before the learned CIT (A) without any success. The appellants then preferred second appeal before this Tribunal which was heard on 2‑2‑19&S and vide order dated 6‑3‑1988 the orders of learned two officers below were maintained by us. The relevant part of our judgment sought to be rectified reads as under: "(12) We have given our anxious consideration to the contentions raised by the appellant and the learned D.R. On a careful perusal of the two agreements between the appellant and the N.D.F.C. we are persuaded to agree with the contention of Mr. Mohammad Farid that the amount advanced to the appellants by the N.D.F.C. initially amounted to loan and all the securities referred to by the appellant were taken for the purpose of securing the said loan. However, on completion of construction and lease becoming effective the stipulations pertaining to the securities become moribund and inoperative. After the commencement of lease the loan has been converted into advance rent. There is force in the contention of Mr. Mohammad Farid that the amount advanced to the appellants does not amount to debt owed as envisaged under section 2(m) of. the Wealth Tax Act because this amount cannot be recovered by the N.D.F.C. by taking action in law except by way of making adjustments towards the future rent becoming due from month to month. The question arises as to what is the connotation of term advance rent', and according to us the advance rent connotes to an arrangement in which a lessee pays certain amount to the lessor in any manner which is adjustable towards the future rent. The real test whether an amount is advance rent or not is, if the amount so advanced, in whatever form and manner and with whatever name, the payability thereof can be enforced on demand or by action in law or it has to be adjusted towards the future rent becoming due and shall remain with the lessor as unearned rent till the adjustment thereof towards the future rent. If the amount cannot be recovered by any other way except by adjustment towards the future rent the said amount shall be treated as advance rent. Now applying the above principle to the facts of the present case we rind that it is clearly stipulated between the appellants and the N.D.F.C. that the entire amount of advance shall be adjusted towards the future rent in monthly instalments. It is admitted position that this condition is being acted upon between the parties. The contention of the appellant that since N.D:F.C. had taken securities for advancement of loan, therefore, it does not amount to advance rent is without substance and is devoid of any force. The plea raised by Mr. Javed Talat that the N.D.F.C. can still enforce the securities for the recovery of advance is also without substance as the agreement between the appellants and N.D.F.C. clearly postulates that after the lease becomes effective the advance shall be adjusted towards future rent in monthly instalments. (13) For the foregoing reasons we are of the considered opinion that the amount advanced by N.D.F.C. to the appellant was an advance rent and consequently the learned two officers below have rightly refused to allow the deductions to the appellant on this amount for the purpose of computing net wealth under the Wealth Tax Act. We do not find any reason for interference in the impugned orders and consequently the appeal is dismissed,"

3. The aforesaid order of the Division Bench came up for consideration before a Full Bench of this Tribunal in W.T.A. No. 20/KB of 1981‑82 and vide order dated 30‑4‑1988 it was held that the law has not been correctly laid down in W.TA No. 28/IB of 1986‑

87. It was held by the Full Bench vide order dated 30‑4 1988 that the advance rent utilised in the construction of building amounts to debt owed as contemplated under section 2(m) of the Wealth Tax Act, 1963.

4. In the above circumstances this rectification application has been submitted with the contention that a mistake of law has occurred in the order dated 6‑3‑1988 which may be rectified in the light of law as laid down by the Full Bench of this Tribunal vide order dated 30‑4‑1938 in W.TA. No. 20/KB of 1981 82.

5. We have heard Mr. Mazhar Jafri, learned counsel for the appellants/applicants and Mr. Shahid Jamal, learned D.R. for the Department. Mr. Mazhar Jafri has submitted that by virtue of the provisions contained in section 35 of the Wealth Tax Act, 1963 any mistake apparent from the record can be rectified and the law stands settled on the point that a mistake from record may be either of fact or of law. He has further submitted that mistake in not giving effect to a mandatory provision of the statute is a mistake of law and can be rectified. In support of his contention lie has placed reliance on the rulings reported in (1970) 75 ITR 646 and (1975) 100 ITR

651. On the other hand, Mr. Shahid Jamal, the learned D.R. has vehemently opposed the prayer for rectification contending that the provisions of section 35 of the Wealth Tax Act are not attracted as obviously there is no mistake apparent from record. He has submitted that it is a question of interpretation of law and a decision has been given on merits. According to Mr. Shahid Jamal the interpretation of statutory provision does not amount to mistake apparent on record and consequently the question of any rectification does not arise. He has placed reliance on the judgment reported as (1958) 34 ITR

143. We have carefully considered the contentions raised‑by the learned representatives for the parties and have gone through the rulings relied upon by them. We have been able to lay hand on some other rulings as well. All the rulings in this behalf are from Indian jurisdiction as no ruling has been brought to our notice from Pakistan jurisdiction. The first judgment in this behalf is from the Bombay High Court reported in (1962) 44 ITR

260. In this case the ITO levied additional tax on excess dividends which was confirmed by the C.I.T. (A) as well as the Appellate Tribunal. The levy of additional tax on excess dividends was challenged subsequently in some other cases and the Bombay High Court declared it to be invalid. The assessee subsequent to the decision of Bombay High Court made application for rectification praying for deleting the charge of excess dividend tax. The application was rejected and the revision preferred against the rejection of application also stood rejected. In the meanwhile Supreme Court of India affirmed the decision of Bombay High Court that the levy of additional tax on excess dividends was bad in law. The assessee then riled a writ petition in the Bombay High Court and it was held that the effect of the decision of Supreme Court was that the levy of additional tax on excess dividend was at no time good and, therefore, the assessment order made by the I.T.O. levying excess dividend tax was bad at its inception on the date as it was made, notwithstanding that decision of Supreme Court was given subsequent to that date, and that was a mistake apparent from the record within the meaning of section 35 of the Indian Income‑tax Act, 1922. It was further held that the Income‑tax Authorities were, therefore, clearly in error in refusing to rectify the mistake. At this stage it is pertinent to clarify that the provisions of section 35 of the repealed Income‑tax Act, 1922 are similar to the provisions of section 156 of the Income Tax Ordinance, 1979 and section 35 of the Wealth Tax Act, 1963 under which provision the present application has been submitted.

6. The next ruling is from the Supreme Court of India reported as (1967) 64 ITR 67 wherein a: so the question of refund of additional tax or excess dividend was involved and it was held that when a tax is held to be unlawfully collected the refund thereof should be ordered by way of rectification. The third ruling on which Mr. Mazhar Jafri has placed reliance is from Gujrat High Court reported as (1975) 100 ITR

651. Briefly stated the relevant facts in this cited ruling were that in the course of assessment to wealth tax for the assessment years 1957 to 1959‑60 the assessee claimed to deduct in the computation of net wealth a certain amount each year in respect of provision for taxation but the claim was disallowed on the ground that the amount provided for tax liability slid not constitute debt owed from the assessee on the relevant valuation dates within the meaning of section 2(m) of the Wealth Tax Act, 1957 (Indian Statute). The assessee did not prefer appeals against the orders of assessment. Subsequently, the assessee came to know from a decision given by the Income‑tax Appellate Tribunal that the amounts claimed by it in respect of provision for taxation were deductible in computing the net wealth of the assessee. The assessee thereupon made application to the W.T.O. for rectification of the orders of assessment, under section 35 of the Wealth Tax Act on the ground that there was an error apparent on the face of the record. The application were rejected by the W.T.O. on the ground that there was no error of law apparent on the face of record in the assessment orders. The assessee's revision petitions to the Commissioner were also unsuccessful. The assessee thereupon applied to the High Court for writs to quash the orders refusing to rectify the assessment orders and for a direction to rectify the assessment orders. It was contended for the revenue that there was no error apparent on the face of the record. It was held that it has been settled by the decisions of Gujrat High Court and Supreme Court that provision for taxation was a debt owed within the meaning of section 2(m) of the Wealth Tax Act and was, therefore, deductible in computing in net wealth of assessee. Therefore, there was clearly an error of law apparent on the face of record in the assessment orders in question. It was further held that the submission for the revenue that the assessment orders were proper and valid when they were made and merely because the said orders were later found to be erroneous in view of the subsequent judicial pronouncements the provision of section 35 would not be attracted was not correct. It was observed that the said decisions, in so far as they declared that the amounts claimed by an assessee in respect of provision for taxation are deductible in computing the net wealth of the assessee since they represented "debt owed" by the assessee within the meaning of section 2(m) of the Act, merely stated what the law has always been and must always be understood to have been. The fact that those decisions were not before the W.T.O. when he made the orders of assessment had no material bearing on the question whether the said orders disclosed any mistake apparent on the record. Therefore, the assessment orders, in so far as they disallowed the claim of the assessee for deduction in respect of the amount for provision for taxation, proceeded on a wrong view of the law were bad at the very inception on the date on which they were made. The orders of assessment thus disclosed a mistake apparent from the record and were liable to be rectified under section 35 of the Wealth Tax Act and the W.T.O. and the Commissioner committed an apparent error of law in rejecting the assessee's claim for rectification.

7. The last ruling on this point is also from Gujrat High Court reported as (1975) 101 ITR

46. In this case the assessee incurred expenditure on account of stamp duty registration charges, lawyer's fees, acceptance fees of the bank and miscellaneous expenses in connection with the issue of debentures secured on all the fixed assets of the assessee. The assessee did not claim the deduction thereof from its gross income in the respective years because of decision of the Bombay and other High Courts in this behalf. Subsequently the Supreme Court of India reversed the view taken by the Bombay and other High Courts in India and held that such expenditure must be treated as revenue expenditure and, therefore, the deduction thereof will be given from the gross income earned by the concerned assessee. On coming to know about this decision of the Supreme Court the assessee moved application to the Commissioner for revision which was dismissed on the point of limitation. The assessee filed a writ petition and it was held by the Gujrat High Court that the declaration of law by the Supreme Court has retrospective effect and rendered the assessment of expenditure in connection with the debentures illegal because that assessment was passed on a wrong view that the expenditure in question was capital expenditure. This apparent illegality crept into the assessment and became quite‑apparent only because of the decision of the Supreme Court. The High Court therefore, directed the Commissioner to condone the delay and further directed the Commissioner to decide the rectification application on merits.

8. A resume of the above case‑law leads to the following conclusions: (i) The interpretation of statutory provision of law by superior judicial forum has the retrospective effect because the interpretion of law declares it, as exists from the very date of its inception. (ii) The decision on a wrong view of a law amounts to a mistake of law apparent on record, on the basis of subsequent declaration of the correct view of law by higher or superior judicial forum. (iii) Any assessment or decision rendered incorrect as a result of subsequent interpretation or declaration of law by a superior judicial forum attracts the provisions of section 35 of the Wealth Tax Act and needs to be rectified, except in the cases of past and closed chapter. (iv) Any tax charged or collected as a result of mistaken view of law rendered erroneous on the basis of subsequent decision by superior judicial forum is to be deleted/refunded by way of rectification, except in the cases of past and closed chapter.

9. Applying the above principles to the facts of the present case we find that in our order dated 6‑3‑1988 we held that the advance rent utilized in the construction of a building did pot amount to debt owed as contemplated under section 2(m) of the Wealth Tax Act, 1963 and, therefore, we confirmed the disallowance of the claim in this behalf. Subsequently, a Full Bench of this Tribunal vide order dated 30‑4‑1988 in W.T.A. No. 20/KB of 1981‑82: 1988 P T D (Trib.) 585 observed that the law has not been correctly laid in our judgment dated 6‑3‑1988 and held that the advance rent utilized in the construction of building; amounts to debt owed as contemplated under section 2(m) of the Wealth Tax Act, 1963. This interpretation and declaration of law by the Full Bench of this Tribunal shall prevail and is of binding nature on all the subordinate authorities including a Division Bench of this Tribunal. The law as declared by the Full Bench of this Tribunal would be deemed to have retrospective effect meaning thereby that since the very inception of section 2(m) of the Wealth Tax Act, 1963 the advance rent utilized in the construction of building was a debt owed and, therefore, it was to be deducted from (lie net wealth of an assessee for the purpose of charging the wealth tax. It means that the liability claimed on account of advance rent utilized in the construction of building was not to be subjected to wealth tax and the disallowance thereof by this Tribunal was a mistake of law apparent on record. Thus, this mistake needs to be rectified and consequently the application is allowed with the result that our finding contained in paras 12 and 13 of our order dated 6‑3‑1988 is hereby recalled and is substituted with the following finding: "(12) It is admitted position that the advance rent received by the appellants has been utilized in the construction of building which amounts to debt owed as contemplated under section 2(m) of the Wealth Tax Act, 1963. The W.T.O. was, therefore, not justified in disallowing the same and the learned CIT (A) has misdirected in maintaining the disallowance. (13) As a result of above finding it is held that the amount advanced by the N.D.F.C. to the appellants as advance rent was debt owed and, therefore, the W.T.O. is directed to deduct the same for the purpose of computing net wealth of the appellants under the Wealth Tax Act. The appeal is allowed in the manner stated above."

10. The rectification application is allowed in the above terms. MANZURUL HAQUE (ACCOUNTANT MEMBER).--‑On perusal of the order proposed to be delivered by my learned brother, the Judicial Member, I Find myself at variance with the decision taken. Brief reasons for disagreeing with the views of my learned brother, are given as under. The applicant, a Government employee, received substantial amount of advance rent amounting to Rs. 9,21,000 from N.D.F.C. which was used in the construction of building on a plot of land bearing No. 7‑A Gulberg, Lahore. The agreement was signed on 30‑7‑1983, in which it was agreed that on completion of construction, the ground flour of the building shall be let out to the N.D.F.C. The advance rent was to be adjusted by deduction every month from the monthly rent payable by N.D.F.C. to the applicant. The W.T.O., as well as the learned CIT(A) in appeal held that advance rent was not a deft owed as contemplated under section 2(m) of the Wealth Tax Act. Appeal was, the before, filed with the Tribunal vide W.TA. No. 28/IB of 6‑3‑1988, the orders of the two officers below were left undisturbed in the following words: " .. .We are of the considered opinion that the amount advanced by N.D.F.C. to the appellant was advance rent and consequently the learned two officers below have rightly refused to allow the deductions to the appellant on this amount for the purpose of computing, net wealth under the Wealth Tax Act. We do nut find any reason for interfering the impugned orders and consequently the appeal in dismissed " A case of similar nature came up before a Full Bench in which my learned brother the JM was also included for consideration in W.T.A. No. 20/KB of 1981 -82 and vide order‑dated 30‑4‑1988 it was held that the law was not correctly laid down in W.TA. No. 28/IB of 1986‑87 dated 6‑3‑1988. The advance rent utilised in the construction of building was considered as debt owed as contemplated under section 2(m) of the Wealth Tax Act, 1963. In consequence of the above order the applicant filed an application for rectification with this Tribunal with the contention that there was a mistake in the order of the Division Bench dated 6‑3‑1988 which may be rectified in the light of the law laid down by the Full Bench vide its order dated 30‑4‑1988. Before us the only point for consideration is whether there was any mistake in our order dated 6‑3‑1988 which was apparent from record and which calls for rectification under section 35 of the Wealth Tax Act, 1961. The provision of section 35 of the Wealth Tax Act, 1963 reads as under: "35 Rectification of mistake.‑‑‑At any time within four years from the date of any order passed by him or it, the Commissioner, the W.T.O. (the AAC) and the Appellate Tribunal may, on his or its, own motion rectify any mistake apparent from the record and shall, within a like period, rectify any such mistake which has been brought to the notice of the Commissioner, the W.T.O. (tile AAC) or the Appellate Tribunal, as the case may be, by an assessee: Provided that no such rectification shall be made which has the effect of enhancing the assessment unless the assessee has been given a reasonable opportunity of icing heard it the matter ....... Mr. Mazhar Jafri, the learned counsel cited cases, such as, (1) (1970) 75 ITR 464; and (2) (1975) 100 ITR 651 and the learned D.R. also relied on a reported judgment (1958) 34 ITR

143. Besides the above, my learned broiler, has also cited a number of decisions: (i) (1962) 44 ITR 26; (ii) (1967) 64 ITR 67; and (iii) (1975) 101 ITR 46; all from the Indian Courts in support of his conclusion, that there was a mistake of law apparent from the record and it need to be rectified and the order dated 6‑3‑1988 should be recalled and substituted with the following findings: "(12) It is admitted position that tile advance rent received by the appellants has been utilised in the construction of building which amounts to debt owed as contemplated under section 2(m) of the Wealth Tax Act, 1963. The; W.T.O. was, therefore, not justified in disallowing the same and the learned CIT (A) has misdirected in maintaining the disallowance (13) As a result of above finding it is held that the amount advanced by the N.D.F.C to the appellants as advance rent was debt owed and, therefore, the W.T.O. is directed to deduct the same for the purpose of computing the net wealth of the appellants under the Wealth Tax Act. The appeal is allowed in the manner stated above," My learned brother drawing exclusively from the decisions of the Indian Courts drew conclusion which in my humble opinion is illogical and incorrect. It is common knowledge that judgments pronounced by the Supreme courts, in every civilized country, lay down the correct law. Laws are daily interpreted at different levels of proceedings in lower Courts which ultimately attain finality at the top, the Supreme Court. It is thus a continuous and unending process. Each Court within its jurisdiction is independent to give its own interpretation without any let or hindrance. An obstacle in its way would bring the entire grand machinery of justice to a grinding halt. It is also the rule of law for the subordinate Courts to follow and abide by the decisions of the superior Courts. Like the Division Bench of income‑tax Appellate Tribunal to follow tile decision of the Full Bench‑ and the Full Bench and Division Bench to follow the Larger Bench. All the Benches of the Tribunal, in turn, follow the decisions of the High Court. The interpretation of law attains its height and reaches the finality with judicial pronouncement of tile. Supreme Court of the country. From this it follows that higher Courts must be respected and followed as rightly pointed out by my learned brother on pages 9/10 of his order that: " ..the declaration of law by the Supreme Court has retrospective effect and rendered the assessment of expenditure in connection with the debentures illegal because that assessment was passed on a wrong view that the expenditure in question was capital expenditure. This apparent illegality crept into the assessment and became quite apparent only because of the decision of the Supreme Court ... The question now is whether the orders could be rectified retrospectively on similar pronouncements of numerous Court subordinate to the Supreme Court. The answer lies in the following question. Does the interpretation of law attain finality on the decision given by the subordinate Courts. If the answer is No, then interpretation has not reached the final stage. The question of rectification. therefore, does not arise. This does not, however, mean that interpretation given by the superior Courts should not be followed in cases pending for adjudication. The decisions of the superior Courts as pointed out above, have to be followed. It is only the rectification which cannot be carried out unless the matter is finally resolved at the Supreme Court. For an appeal is a continuance of the proceedings initiated in the trial Courts which attains finality at the Supreme Court. Let us for a moment examine the effect of such a proposition as suggested by my learned brother in paragraph 8 on page 10 of his order which reads as under: A resume of the case‑law leads to tit,: following conclusions: (i) The interpretation of statutory provision of law by superior judicial forum has the retrospective effect because the interpretation of law, declares it, as it exists from the very date of its inception. (ii) The decision on a wrong view of a law amounts to a mistake of law apparent on record, oil the basis of subsequent declaration of the correct view of law by a higher or superior judicial forum. (iii) Any assessment or decision rendered incorrect as a result of subsequent interpretation or declaration of law by a superior judicial forum attracts the provisions of section 35 of tire Wealth Tax Act and needs to be rectified except in the cases of past and closed chapter

" In giving effect to a decision of the Full Bench, the Division Bench rectifies it, order as a result of which the assessee gets refund; the order of the Full Bench is reversed and that of Division Bench restored by a Larger Bench. The assessee is called upon to pay again. The High Court restored the order of the Full Bench the order is rectified again and the assesses gets refund. The Supreme; Court finally lays down the correct law and as a result of the final interpretation, the order is rectified and the assessee is again made to pay the tax. If claims and counter‑claims are settled in this manner during the continuing process as indicated above involving refunds and realisation of huge sums of money a lot of complications will be created. To my mind retrospectivity to financial obligations should be given only after the law is finally settled. The amount of money daily coming in and going out of the exchequer is just left to the imagination; the amount of work it would entail notwithstanding. Let me point out that in the interpretation of statute, or in reviewing an earlier decision, the Courts move very carefully. The Supreme Court of India in Union of India and another v. Raghubir Singh has cautioned (178 1TR 548); "The Court would, however, do well to ensure that although the new norm chosen in response to the changed social climate represents a departure from the previously ruling norm, it must, nevertheless, carry within it the same principle of certainty, clarity and stability. (1988) 178 ITR 548 at page 549). In July 1966, Lord Gardner L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary (see (1966) 3 All ER 77 (Note)). "Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so." "In this connection they will bear in mind the danger of disturbing retrospectively the basis oil which contracts, settlements of property and fiscal arrangements, have been entered into and also the special need for certainty as to the criminal law." The House of Lords had framed guidelines in a series of cases decided up to 1975 and the guidelines have been summarized in Dr. Alan Paterson's "Law Lords" (1982) pp. 156‑

157. He refers to several crieteria articulated by Lord Reid in hose cases: (1) The freedom granted by the 1966 Practice Statement ought to be exercised sparingly (the use sparingly criterion) (Jones v. Secretary of State for Social Services (1972) AC 944 (HL)." (2) A decision ought not to be overruled if to do so would upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision (the legitimate expectations' criterion) Ross Smith v. Ross Smith (1963) AC 280, 303 (HL) and Indyka v. Indyka (1969) I AC 33, 69." "(3) A decision concerning questions of construction of statutes or other documents ought not to be overruled except in rare and exceptional cases (the construction criterion ..") Now I turn to the decisions cited art the Bar and the conclusions drawn by my learned brother from these cases. (1975) 100 ITR 651 .....The assessee did not prefer appeals against the orders of assessment. Subsequently the assessee came to know from a decision given by the Income‑tax Appellate Tribunal that the amounts claimed by it in respect of provision for taxation were deductible in computing the net wealth of the assessee. The assessee thereupon made application to the W.T.O. for rectification of the orders of assessment, under section 35 of the Wealth Tax Act on the ground that there was an error apparent on the face of the record. The applications were rejected by the W.T.O. on the ground that there was no error of law apparent on face of record in the assessment orders. The assessee s revision petitions to the Commissioner were also unsuccessful. The assessee thereupon applied to the High Court for writ to quash the orders refusing to rectify the assessment orders and for a direction to rectify the assessment orders. It was contended for the revenue that there was no error apparent on the face of the record. It was held that it has been settled by the decision of Gujrat High Court anti Supreme Court that a provision for taxation was a debt owed within the maning of section 2(m) of the Wealth Tar Act and was, therefore, deductible in computing tire net wealth of the assessee." (1975) 101 ITR 46 .. .On coming to know about Ibis decision of the Supreme Court the assessee moved application to the Commissioner for revision which was dismissed on the point of limitation. The assessee filed a writ petition and it was held by the Gujarat High Court that the declaration of law by the Supreme Court has retrospective effect and rendered the assessment of expenditure in connection with the debentures illegal because that assessment was passed on it wrong view that the expenditure in question was capital expenditure This apparent illegality crept into the assessment and became quite apparent only because of' tile decision of the Supreme Court. " (1962) 44 ITR 260 " In this case the ITO levied additional tax on excess dividends which 'was confirmed by the CIT (A) as well as the Appellate Tribunal. The levy of additional tax on excess dividends was challenged subsequently in some other cases and the Bombay High Court declared it to be invalid. The assessee subsequent to the decision of Bombay High Court made application for rectification praying for deleting the charge of excess dividend tax. The application was rejected and the revision preferred against the rejection of application also stood‑ rejected. In the meanwhile Supreme Court of India affirmed the decision of Bombay High Court that levy of additional tax on excess dividends was bad in law

" Thus, it may be seen that in all the above cases it was the interpretation given by the Supreme Court of India which ultimately became the guideline for the subordinate Courts. In the present case the decision is that of the Full Bench, which my learned brother has proposed to follow not for adjudicating the pending cases, but by rectifying the earlier order of the Division Bench. The question for consideration is whether the Division Bench of the Tribunal can rectify its own order on the strength of a decision given by the Full Bench on a subsequent date. In any case the law as interpreted by the F.B. was not available for application to the D.B. when it delivered the judgment on full appraisement of facts and law. In my humble opinion retrospectivity to such an order cannot be given in view of the fact appeals still may be pending against that order at higher forums. The matter of retrospectivity can only be considered when the issue is finally decided by the Supreme Court. Let me hasten to add that a Division Bench can take a different view on a issue already settled by it in a different case. But this does not mean, however, that on the basis of this review the D.B. should start rectifying its own earlier orders. For, if this process is allowed to start there will be no end to it. Mr. Shahid Jamal, the learned D.R. had relied on (1958) 34 ITR 143 Supreme Court (India) in which it was held: " .glaring, and obvious mistake of law can be rectified under section 35 as much as a mistake of fact apparent from the record ." The decision given by the D.B. in W.T.A. No. 28%IB of 3‑6‑1988 there was no mistake of fact. There was no mistake of law either. It was a considered, conscious and deliberate act of finding and interpretation of law. The connotation of three concepts, 'mistake', `apparent' records and rectification is fully discussed with great clarity in 69 ITR 342 (Mad.). There was thus, no mistake which was floating from the record as rightly pointed out by Rana Naqvi in Vol.II Fourth Edition page 1223: .....Rectification may be made under this section not only of a mistake in a final order but also in any part of the record or proceedings m the case. But it must be case of a `mistake' and the mistake must be apparent from the record " He further goes on to say: .....but a decision on a debatable point of law or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification. But the Income‑tax Authorities or the Tribunal cannot under this section revise or review their order generally or reconsider their conclusion on the facts of the case .... Rectification under this section must be a mistake which is a mistake in the light of the law in force at the time when the' order sought to be rectified was passed. If, however, subsequently legislature comes with express retrospective effect, what is a mistake in the light of such retrospective legislation may be which must be held to have been in force at the time when the order sought to be rectified was passed (1953) SCR 773 SC): In (1957) 33 ITR 350 it was held: " ..the mistake to be rectified should however, be a mistake patent on the record and not a mistake which may be discovered by a process of investigation, argument and debate . Section 35 is attracted when there is a mistake apparent from the record of individual assessment. If that mistake becomes apparent not from the record of individual assessment but from the record of assessment of some other assessee, the I.T.O. cannot bring section‑35 into service. In short it has been held in many cases that section 35 did not apply to a case where mistake was not manifest but was a mistake that could be discovered only by it process of argument or debate or elucidation. Conclusions which can be drawn from the above discussion may be summarised as under: (a) Only glaring, obvious and self‑evident mistake of law can tic rectified; (b) The cases cited by my learned brother in his order proposed to be released, had reached the stage of finality on correct interpretation of law by the Supreme Court of India; and (c) Only such judicial pronouncement can be stated to be "what the law had always been and must always be understood to have been". (d) The decision given by the Full Bench in W.T.A. No. 20/KB of 1981‑82 dated 30‑4‑1988 1988 P T D (Trip.) 585 which my learned brother has relied upon has not yet attained finality. This is not to say that the law as interpreted in W.T.A. No. 20/KB of 30‑4‑1988: 1988 P T D (Trib.) 585, is not applicable to cases pending for adjudication before the Single Bench or the Division Bench. The Division Bench in its judgment bearing W.T.A. No. 28/IB of 6‑3‑1988 had neither left out airy mandatory provision of the statute (to warrant rectification) nor it had before it tile benefit of finding given by the Full Bench. In my humble opinion no rectification under section 35 of the Wealth Tax Act is, therefore, called for. ORDER OF THE BENCH Since difference of opinion has arisen between me and my learned brother, JM; I propose that the following issue may be referred to a third Member to decide whether: "Decision of the Division Bench calls for rectification on a finding of law/fact by a Full Bench on the same issue:" I agree that the above issue may be referred to third member for recording the differences of opinion. SAIYED SAEED ASHHAD (JUDICIAL MEMBER).‑‑This Miscellaneous Application was referred to me on account of difference of pinion between the learned Accountant Member Mr. Mansur‑ul‑Haque, and the learned Judicial Member ‑ Mr. Muhammad Mujibullah Siddiqui. The facts of the case have been mentioned in detail by the learned Judicial Member Mr. Muhammad Mujibullah Siddiqui, in his proposed order and there is no need to reproduce them here. The question, which requires consideration and determination in this case on account of the difference of opinion of the above two learned Members of this Tribunal, is as under: "Whether the order of a Division Bench of this Tribunal can be altered or modified by the Tribunal in pursuance of a subsequent order of a Full Bench of this Tribunal on similar points and questions of fact and law but between different parties in exercise of the powers of rectification under section 35 of the Wealth Tax Act, 1963?" Mr. Mujibullah Siddiqui, tile learned Judicial Member answered the question in the affirmative whereas Mr. Mansur‑ul‑Haque, the learned Accountant Member answered the question in the negative. I have the advantage of going through the orders delivered by the two learned Members.

2. I have heard the arguments of Mr. Mazhar Jafri, the learned Advocate appearing on behalf of the applicant‑assessee and Mr. Shahid Jamal, the learned D.R. and have also perused the relevant provisions of the law and the case‑law relied upon by the learned representatives of the parties in support of their respective contentions. I find myself in agreement which the finding given by the learned Accountant Member, Mr. Manzur‑ul‑Haque, in his order and hold that the order dated 6‑3‑1988 in W.T.A. No. 28/113 of 1986‑87 could not be modified or varied in exercise of the powers conferred on the Tribunal by section 35 of the Wealth Tax Act, so as to bring it in conformity with the order of the Full Bench dated 30‑4‑1988 in W.T.As. Nos. 20 and 21/KB of 1981‑82: 1988 P T D (Trib.)

585. I will now proceed to give reasons for arriving at the aforesaid finding. Mr. Mazhar Jafri, the learned Advocate of the applicant/assessee submitted that this Tribunal in exercise of the powers conferred on it by section 35 of the Wealth Tax Act, could rectify, modify and alter its previous order so as to bring it in conformity with a subsequent order of a Larger Bench of the Tribunal. He further submitted that after a Larger Bench or a superior Court takes a view different from the one given by a smaller trench or a lower Court then tile order or finding of the smaller Bench or of tire lower Court would fall within the meaning of mistake apparent from the record and would be capable of rectification under section 35 of the Wealth Tax Act, 1963, inasmuch as a mistake apparent from the record may either be on a question of fact or with regard to a question of law. He further submitted that the provisions of section 35 of the Wealth Tax Act, which arc analogous to the provisions of section 156 of the Income‑tax Ordinance, could be pressed into action for the purpose of modifying/altering a judicial order or decision so as to bring it in consonance and in conformity with the changed or modified provision of a law due to an amendment subsequent to the passing off he judgment or order and that a change or modification of view by a Larger Bench of this Tribunal or by a superior Court was in the nature of modifying or amending the law laid down by the smaller Bench or the lower Court and the order/decision would be capable of rectification. In support of his above contention Mr. Mazliar Jafri placed reliance on the cases reported as under: (1) (1962) 44 ITR 260; (2) (1968) 69 ITR 342; (3) (1.975) 100 ITR 651, and (4) (1975) 101 ITR

46. Mr. Shahid Jamal, the learned D.R., on tries other hand, vehemently opposed the above Miscellaneous Application as well as the arguments advanced by Mr. Mazhar Jafri, and submitted that the powers conferred on this Tribunal by section‑35 of the Wealth Tax Act, which corresponded to section 156 of the Income‑tax Ordinance, were very limited in their application and only mistakes or errors apparent from the record could be rectified by this Tribunal. He further submitted that in exercise of the powers under section 35 of the Wealth Tax Act, this Tribunal could not rectify mistakes, errors or flaws in an order which had been pronounced after taking into consideration long drawn and lengthy arguments and discussions and in arriving at which the forum had given detailed, plausible and convincing justification and reasoning. He further submitted that any order/finding which had been given after due examination, consideration and application of mind with regard to the facts of the case and the law applicable thereto and which was capable of more than one decision or finding could not be considered to be a mistake apparent from the record even if a Larger Bench or a superior Court in a subsequent proceeding between the different parties came to a different conclusion or finding in respect of similar points and questions as were involved in the previous case. Mr. Shahid Jamal in support of his above contention placed reliance on the cases which are reported as under: (1) P L D 1966 SC 524; (2) (1970) 22 Tax 157; and (3) (1958) 34 ITR

143. The precise question which arises for determination in this Miscellaneous Application has already been mentioned by me in the earlier portion of this order and for resolving the same it will be useful to start with the discussion by making reference to the chapter/provisions dealing with the nature and scope of precedence in the book titled "Salmond on Jurisprudence". According to Salmond, an order or judgment of a Tribunal or Court becomes final on the parties in dispute in a particular proceeding after the period for filing appeal, review or revision had expired and thereafter the order/judgment cannot be modified, changed or altered even on the ground that superior Court or a Larger Bench had given a contrary finding in a subsequent case between different parties. It has been further observed by Salmond that if this principle was not followed or was not upheld there would ire no end to litigation and no finality would be attached to the orders and decisions of the Tribunals and Courts. It will be appropriate to reproduce the relevant provision appearing on page 175 of the book entitled "Salmond on Jurisprudence", 12th edition, which is as under:‑‑ "What it decides generally is the ratio decidendi or rule of law for which is authority; what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were no end to litigation and if either party to a legal dispute were at liberty to re‑open the dispute at any time, the law provides that once a case has been heard and all appeals have been taken (or the time for appeal has gone by) all parties to the dispute and their successors are bound by the Court's findings on the issues raised between them and on questions of fact and law necessary to the decision of such issues. According to this principle these matters are now res judicata between them and cannot be the subject of further dispute." It will also be useful to reproduce the definitions of the words, "precedent" and "ratio decidendi" from legal dictionaries for the purpose of determining their nature and scope and to form an idea as to from what point of time they would be applicable. According to Osborn in his book titled "A Concise Law Dictionary". 5th Edition, on page 267 the ratio decidendi is the reason or ground of a judicial decision and constitutes a binding precedent for the future and it becomes a principle of law to be applied in future cases. Bellantine in his Law Dictionary, Third Edition on page 975 defined precedent as a decision or determination of a point of law made by a Court in a case to be followed by a Court of the same or of a lower rank in a subsequent case presenting the same legal problem, although different parties are involved in the subsequent case. It is to be observed that a very material and important aspect which is borne out is that a precedent or the ratio decidendi of a judgment ‑by a superior Court is to be made applicable to subsequent cases pending adjudication between different parties in the lower forum wherein the subject‑matter and the questions for adjudication are the same. It also follows from the above discussions and definitions that a later or subsequent contrary precedent or judgment of a superior Court will not have the effect of automatically modifying or altering an earlier order or judgment pronounced by a lower Court or forum between different parties and the same is to be brought in conformity with the precedent or judgment of the superior Court. It is this question which requires to be determined in the above Miscellaneous Application. It may be pointed out at the outset that the case‑law relied upon by Mr. Mazhar Jafri, Advocate, has no relevancy and bearing with regard to the real issue involved `in the matter. All the four cases relied upon by him besides being of the Courts of Indian jurisdiction, primarily dealt ‑with the question of rectification of orders in exercise of the powers of rectification whereas as already pointed out above the issue involved in this case is not merely of rectification of an error, mistake or flaw but modification, alteration or variation of a valid, lawful, conscious and deliberate finding/order because of a contrary view having been taken by a higher or a superior Court/forum. It will be pertinent to note that the question/issue involved in this case was directly in issue and was considered and discussed at great length in a very elaborate manner by the Supreme Court of Pakistan in the case of Pir Bakhsh and others v. Chairman, Allotment Committee and others, reported in P L D 1987 SC

145. The judgment of the Supreme Court in the above case has dealt with all the various issues and questions which require determination in this case and provides answers to all the above questions and issues. In view of the above, I will not be taking into consideration the case‑law of the Indian Courts relied upon by the learned A.R. of the applicant. Reverting to the case of Pir Bakhsh and others v. Chairman, Allotment Committee and others, it will be appropriate and useful to reproduce the relevant portions from the above judgment on the issues involved herein so as to be able to understand and grasp the principles laid down by the Supreme Court and to decide this matter in accordance with these principles. On page 160 the Supreme Court had observed as under:‑‑ "It is the policy of the Courts to stand by the ratio decidendi, that is, the rule of law and not to disturb a settled point. This policy of the Courts is conveniently termed as the doctrine of rule of stare decisis. The rationale behind this policy is the need to promote certainty, stability and predictability of the law." In the same judgment on page 161 a passage from page 50 of the book by Cooley in his treatise "On the Constitutional Limitations" was reproduced and approved by the Supreme Court and the same is as under:‑‑ "A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the Judges are bound to follow that decision so long as it stands un-reversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favour of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a Court of appeal or review, and never by the same Court, except for very urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law." From the above passages reproduced from the judgment of the Supreme Court in Pir Bakhsh and others v. Chairman, Allotment Committee and others, it can be deduced that it is the policy of the Courts to stand by the ratio decidendi or the rule of law laid down by them in a particular case and not to disturb a settled point and further that once a case has been heard and all appeals have been taken or the time for appeal has lapsed, then all the parties to the disputes and their successors are bound by the Court's findings on the issues raised between them and on questions of fact and law necessary to the decisions of such issues. Another principle which can be deduced from the afore cited passages reproduced from the judgment of the Supreme Court is that once an order or judgment has been deliberately and consciously given and declared then the same could not be disturbed, changed or modified unless by a Court of appeal or review and the same Court/Tribunal can never have ‑the power to change or modify its own judgments/orders, except for very urgent reasons and in circumstances where there appeared to be a clear manifestation of error or of an apparent mistake from the record. The question which now arises for consideration is whether an order of the Tribunal in an earlier case which has not been approved and a contrary finding has been given by a Larger Bench of this Tribunal would be or could be deemed to be an erroneous order suffering from a patent mistake or illegality or the finding/order of the smaller Bench of the Tribunal could be considered to be a mistake apparent from the record as envisaged in section 35 of the Wealth Tax Act, so as to be rectifiable in exercise of the powers of rectification of orders. As already pointed out earlier, Mr. Mazhar Jafri in support of the above contention had placed reliance on the case law from the Courts of Indian jurisdiction and I have in spite of the fact that the same is entitled to greatest respect held that the same was not binding on the Tribunal, especially in view of the fact that main issue or question involved in this case could not be confined to the question of rectification and also because of the contrary discussions of our superior Courts including the Supreme Court of Pakistan with regard to the scope and powers of rectification of this Tribunal. In this connection reliance has been placed by Mr. Shahid Jamal on a case decided by the Supreme Court of Pakistan reported in P L D 1966 SC 524, wherein it has been held that, "a mistake apparent from the record" was one which did not require for its correction ascertainment of fresh facts and adoption of new factual basis and further that a mistake, flaw or error apparent from the record was one which necessarily had been brought about by means of an oversight, negligence or inadvertence. In another case relied upon by Mr. Shahid Jamal, reported in (1970) 22 Taxation 157, a Division Bench of the then Dacca High Court had held that where rectification of mistake required elucidation, argument or debate or the rectification could not be done without reversing or setting aside the finding then setting aside or reversing of the finding would amount to not only reviewing the case but a de novo assessment of the whole case which was beyond the scope of the provision of section 35 of the Wealth Tax Act. Examining the nature of the mistake sought to be rectified in the present case, it is to be observed that the Division Bench of this Tribunal in arriving at the findings contained in its order dated 6‑3‑1988 did not act under any misconception, mistake or inadvertence and the finding was arrived at by it after detailed and lengthy discussions and reasonings and consciously. It is also to be noted that the process of modifying or reversing the finding in dispute of the Division Bench of this Tribunal dated 30‑4 -1988 will amount to reviewing the case and cancelling or annulling the entire assessment made by the W.T.O. and this by no stretch of imagination can be deemed to be a process of rectification of mistake or error. In this connection it will be useful to reproduce the relevant portion from the judgment of the Dacca High Court, which is as under:‑‑ "Reversing of this finding will amount to not only reviewing the case but a de novo assessment of the whole case. This is beyond the scope of the provisions of section 35 of the Act." The Supreme Court of Pakistan in the case of Pir Bakhsh and others v. Chairman, Allotment Committee and others reported in P L D 1987 SC 145, referred to above, has held that as long as a determination in a case was not set aide in appeal, it remained in the field irrespective of the quality of determination and the fact that it was incorrect or erroneous on questions of fact or law would be of no consequence. The relevant portion from the above judgment of the Supreme Court appearing on page 169 is reproduced hereunder:‑‑ "The grievance was individual and related to the satisfaction of claims in full or in part. Therefore, the proceedings were actions in personam against definite persons arrayed as respondents and the determination a judgment in personam. So long this determination was not set aside in appeal, the judgment remained in the field irrespective of the quality of determination as to whether it was incorrect on questions of fact or law." It is thus absolutely clear that the order sought to be rectified could not be deemed to be suffering from a clear manifestation of error or illegality and also did not suffer from a mistake apparent from the record even after a contrary finding by a Larger Bench in a subsequent case having identical facts and involving adjudication on similar questions of law; so as to come within the scope of a mistake or error which was capable of rectification in exercise of the powers under section

35. The order of the Division Bench in dispute dated 6‑3‑1988 also cannot be varied or modified so as to bring it in consonance with the order of the Full Bench in view of the fact that at the time when the order of the Full Bench was pronounced W.T.A. No. 28/IB of 1981‑82 stood decided by this Tribunal and the transaction pertaining to the parties had come to a close and the order/finding of the Division Bench of this Tribunal could not on its own be changed, modified or varied in accordance with the order/finding of the Full Bench of this Tribunal dated 30‑4‑1988 inasmuch as the law laid down by the Full Bench of this Tribunal was applicable prospectively and not retrospectively so as to apply. to transactions, orders or decisions which were part and closed. In other words, the order/finding of the Full Bench dated 30‑4‑1988 would be applicable to matters pending adjudication and they will have to be decided in accordance with the finding/order of the above Full Bench. However, in cases which had been finally adjudicated upon and stood decided between different parties on a date prior to the pronouncement of the order/finding by the above Full Bench and in which no appeal or further proceedings as envisaged by the law in the nature were taken or initiated and time for filing appeal or other proceedings envisaged by the law had lapsed or run out would not be affected and could not be re‑opened for the purpose of enforcement of the order/finding of Full Bench. In the present case, the order of the Division Bench dated 6‑3‑1988 could have been challenged by the assessee before the High Court by means of a Reference Application under section 136((1) and (2) of the Income Tax Ordinance, but no such step was taken by the assessee and his remedy for approaching the High Court had become time‑barred and no action or remedy was available to the assessee against the order of the Division Bench dated 6‑3-1988 on the date when the Full Bench had pronounced the order dated 30‑4‑1988 and, as such, the assessee in W.TA. No. 20/IB of 1981‑82 was left bereft of any action or remedy for getting the order/finding of the Division Bench modified, changed or altered in accordance with the Full Bench's order/decision of this Tribunal and resort to section 35 of the Wealth Tax Act, whereby order of the Division Bench in dispute dated 6‑3 1988 was sought to be brought in consonance with the order/decision of the Full Bench of this Tribunal dated 30‑4‑1988 on the ground that it suffered from mistake, flaw or error amounted to circumventing the law by defeating the provisions of law which barred the modification and variation of the order dated 6‑3‑1988 and to get the order/Finding reversed which would mean setting aside the assessment finalized, which is definitely beyond the purview and scope of section 35 of the Wealth Tax Act. It will not be out of place to reproduce the relevant portion dealing with the subject on page 169 from the judgment of the Supreme Court in the case of Pir Bakhsh and others v. Chairman, Allotment Committee and others, mentioned above, which is as under:‑‑ "The grievance was individual and related to the satisfaction of claims in full or in part. Therefore, the proceedings were actions in personam against definite persons arrayed as respondents and the determination a judgment in personam. So long this determination was not set aside in appeal, the judgment remained in the field irrespective of the quality of determination as to whether it was incorrect on questions of fact or law. The rights of the parties thereunder assumed finality and took the colour of a "past and closed transaction." The fact that the Supreme Court in an appeal, titled Abdul Hafiz v. Rehabilitation Commissioner and others, against the judgment of the High Court set aside the same judgment in another writ petition would not reopen the concluded rights of the parties under the decisions of the High Courts against which no appeal was filed nor could the appellants who were respondents in that writ petition avail the benefit of the law laid down by the Supreme Court under Article 189 of the Constitution.' From the above, it is absolutely clear that the assessee in W.T.A. No. 28/IB of 1986‑87 had no remedy left and could not avail the benefit of law laid down by the Full Bench of the Tribunal in W.T.A. No. 20 and 21/KB of 1981‑

82. It is also pertinent to note that the law laid down by a Tribunal or a Court including the Supreme Court of Pakistan does not have retrospective effect and it operates prospectively from the date of its pronouncement. For the above proposition reliance is again placed on the judgment of the Supreme Court in the case of Pir Bakhsh and others v. Chairman, Allotment Committee and others wherein the Supreme Court of Pakistan relying on its previous, judgments/decisions delivered in the cases of (1) Jalal Din v. The Chief Settlement Commissioner, reported in P L D 1965 SC 261, and (2) Muhammad Yousaf v. C.S.C. Pakistan, Lahore, reported in P L D 1968 SC 101, had observed on page 169 as under: "The judgment was delivered on the 2nd November, 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi‑judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act." In view of the above very clear and specific finding of the Supreme court, the contention raised on behalf of the applicant/assessee that after pronouncement of the order/ decision by the Full Bench in W.T.A. Nos. 20 and 21/KB of 1981‑82, the order of the Division Bench dated 6‑3‑1988 in W.T.A. No. 28/IB of 1986‑87 would appear to be erroneous, illegal and incorrect on questions of fact or law as the order/decision of the Full Bench would be deemed to be operative from the date of commencement of the relevant provision of the Wealth Tax Act, which was the subject of discussion and interpretation, has absolutely no weight whatsoever. As a consequence of the above, the contention that the order of the Division Bench being erroneous, illegal and incorrect on questions of facts as well as law was a mistake apparent from record which could be rectified under section 35 al the Wealth Tax Act also has no force and persuasive value inasmuch as the Division Bench order dated 6‑3‑1988 when it was pronounced did not suffer from any illegality, irregularity and the question that it was incorrect on account of the facts of the case or interpretation of the law applicable to the facts and the same could not be said to be suffering from mistake apparent from the record. The above observations and finding of the Supreme Court also discarded the ‑contention that the order/finding of the Division Bench dated 6‑3‑1988 ceased to be in force or effective after pronouncement of the order/finding by the Full Bench of the Tribunal dated 30‑4‑1988. Neither the order/finding of the Division Bench stood altered or modified with the pronouncement of the order/finding by the Full Bench dated 30‑4‑1988, nor the same was rendered void by force of the Full Bench's order/decision. It will also be useful to reproduce a portion from the judgment of the Supreme Court, delivered. in the case of Octavius Steel & Co. Ltd. CIT, reported in P L D 1960 SC 371, which is as under:‑‑ "In my view such a course is not sanctioned by law. I do not see how on the basis of the judgment of this Court in Octavius Steel & Co. Ltd. case past and closed transaction could be re‑opened. The proceedings in respect of the disputed years were finally disposed of in favour of the respondent and until they are set aside in accordance with law, no fresh proceedings could be initiated in respect of these years." The observations made by the Supreme Court to the above effect leave no room for doubt that past and closed transactions could not be reopened on the basis of a judgment delivered by a superior Court or a Larger Bench so as to bring it in conformity with the judgment/order of the superior Court unless the judgment/order in dispute was set aside in accordance with law, which in the present case had become impossible and proceedings for setting aside the order/finding of the Division Bench dated 6‑3‑1988 could not be resorted to as the time for the same had lapsed. In the circumstances, the order/finding of the Full Bench in W.TAs. Nos. 20 and 21/KB of 1981‑82 dated 30‑4‑1988 would be operative from the date it was announced and did not have the effect of reopening the rights of the assessee in Appeal No. 28/IB of 1986‑87 which had been finally decided vide order dated 6‑3‑1988. The order dated 6‑3‑1988 stands overruled with regard to the question of law decided by the order of the Full Bench dated 30‑4‑1988, but will not affect the rights of the parties already determined by order dated 6‑3‑1988. For the above reliance is again placed on the case of Pir Bakhsh v. Chairman, Allotment Committee and others cited as above. The relevant provision thereof is reproduced as under:‑‑ "The authority of law laid down by this Court under Article 189 being prospective, the decision of the High Court nonetheless stands overruled on the same question .of law, but that will not affect the rights of the parties already determined by the High Court's judgment." From the above discussion, I have not the least doubt in my mind that the order dated 6‑3‑1988 in W.T.A. No. 28/IB of 1986‑87 is not capable of rectification in exercise of powers conferred on this Tribunal by section 35 of the Wealth Tax Act, in view of the law laid down by the Supreme Court of Pakistan. Since I have agreed with the conclusion arrived at by the learned Accountant Member‑‑Mr. Manzur‑ul‑Haque, the Miscellaneous Application is to be decided in accordance with the majority view of myself and the learned Accountant Member Mr. Manzur‑ul‑Haque, and accordingly, the Miscellaneous Application stands rejected. M.BA/896/T Application rejected.