- (1.) This order shall dispose of a bunch of four appeals bearing ITA Nos. 269 to 272 of 2003 as according to the learned counsel for the parties, the questions of law and facts involved therein are identical. For brevity, the facts are being extracted from ITA No. 269 of 2003.
(2.) Ita No. 269 of 2003 has been filed by the assessee under Section 260A of the Income Tax Act, 1961 (in short "the Act") against the order dated 22.7.2003 (Annexure A-1) passed by the Income Tax Appellate Tribunal, Chandigarh Bench "A", Chandigarh (hereinafter referred to as "the Tribunal") in MA No. 3/CHANDI/99 in ITA No. 1326/Chandi/96 for the assessment year 1992-93, claiming the following substantial questions of law:- a. Whether under the facts and circumstances of the case, the ld. Tribunal was justified in making a rectification u/s 254(2) on the basis of the amendment on dated 08.01.1999 by the Income Tax (Second Amendment) Act, 1998 with retrospective on the basis of amendment in Section 80P(2)(a)(iii) which issue as a question of law or interpretation of said Section 80P(2)(a) (iii) as unamended in the appellant case had become final on dated 13.5.1998 in the decision in the case of the appellant itself along with the Kerala State Cooperative Marketing Federation Ltd. and others reported in 231 ITR 814 and for which the necessary effect had already given by the ld. Tribunal on dated 21.09.1998 and 23.09.1998 for the respective years and also by the respondents b. Whether under the facts and circumstances of the case the issue having become final on the interpretation of the unamended provisions of law of Section 80P(2)(a)(iii) in case of the appellant itself whether the principles of res judicata shall not apply for the other years i.e. for the A.Y. 1990-91, 1992-93, 1993-94 and 1995-96 when issue involved the same and the facts remain the same c. Whether under the facts and circumstances of the case the ld. Tribunal has erred in law by initiating the proceedings for rectification and considering that the petitions filed are not of review but are of rectification and whether for the purpose of initiating, processing and finalizing the rectification on necessary legal requirements as laid down under the Income Tax (Appellate Tribunal) Rules, 1963, 34A has been followed, in the absence of which the necessary orders passed need to be quashed d. Whether proceedings initiated for rectification were mechanical and whether examining the same issue though already finalized and not is a case of review for which the Tribunal does not powers and hence unjurisdictional order e. Whether the learned Tribunal is correct in law in passing the rectification orders impugned in the present appeal when the very basis of the rectification proceedings was debatable before this Hon'ble High Court as well as Hon'ble Supreme Court of India at the time of initiation of proceedings of rectification and hence the proceedings are bad f. Whether under the facts and circumstances of the case, the Tribunal was justified in making rectification in view of retrospective amendment in Section 80P(2)(a)(iii) wherein the decisions of the Tribunal of dated 21.9.1998 for A.Y. 1995-96 and 1990-91 had become final which was not under dispute by way of an appeal u/s 260-A or reference u/s 256(1) by the respondents g. Whether the Tribunal could at all issue the notices for rectification of its earlier orders when the vires of the retrospective amendment of Section 80P(2)(a)(iii) was debatable before this Hon'ble Court in CWP No. 3242 of 1999 h. Whether the judicial decisions having become final inter parties can be set at naught in view of the fact that Special Leave Petition filed by the Revenue against the decision of this Hon'ble Court in appellant's own case in CIT v. Haryana State Cooperative Supply and Marketing Federation Ltd, 1990 182 ITR 53 on the proposition and interpretation of provision of Section 80P(2)(a)(iii) that income arising from marketing of agricultural produce of its members (and not grown by its member as amended) is exempt having been dismissed by the Hon'ble Supreme Court vide its judgment dated 13.5.1998 (231 ITR 814)
(3.) A few facts necessary for disposal of the present appeal as mentioned therein are that Haryana State Coop. Supply and Marketing Federation Ltd. (in short "the HAFED") had been making purchase of foodgrain from its member societies as an agent of the Government and selling the same to Food Corporation of India (FCI). The income arising therefrom was exempt from tax under Section 80P(2)(a)(iii) of the Act, as held by this Court in the assessee's own case in Commissioner of Income Tax v. Haryana State Coop. Supply and Marketing Federation Ltd, 1990 182 ITR 53 . The appeal filed by the revenue bearing Civil Appeal No. 15430 of 1996 against the order of this Court was dismissed by the Supreme Court on 13.5.1998 while deciding the case of Kerala State Coop. Supply and Marketing Federation Ltd. and others v. Commissioner of Income Tax, 1998 231 ITR 814 (Annexure P-3) holding that the agricultural produce of its members as defined in Section 80P(2)(a)(iii) of the Act means that it should belong to its members and not that it should be produced by its members. The Tribunal, for the assessment years 1990-91 to 1993-94 in ITA Nos. 421/Chd/97, 562/Chd/95 and 1326/Chd/95, following the judgment of the Hon'ble Supreme Court in Kerala State Coop. Supply & Marketing Federation Ltd's case allowed deduction to the assessee for the income derived by it from marketing an agricultural produce of its members which belonged to them vide order dated 23.9.1998 (Annexure A-2). The Parliament by Income Tax (Second Amendment) Act, 1998 which came into force on 8.1.1999, amended the provisions of Section 80P(2)(a)(iii) of the Act with retrospective effect from 1.4.1968. However, the revenue filed miscellaneous applications before the Tribunal after 8.1.1999 from which date the necessary amendment was brought by introducing the word "the marketing the agricultural produce grown by its members or" with retrospective effect, i.e. 1.4.1968 pleading that if the issue is not debatable, the same can be rectified and is a mistake apparent from the record under Section 254(2) of the Act. Notice dated 29.1.1999 (Annexure A-8) was issued in the applications for 19.2.1999. The assessee filed CWP No. 3242 of 1999 challenging the said amendment and this Court vide order dated 10.3.1999 (Annexure A-9) while issuing notice of motion stayed passing of the final order pursuant to the notice, Annexure A-8. The retrospective amendment was also challenged by the National Agricultural Cooperative Marketing Federation of India Ltd. before the Delhi High Court who upheld the said amendment. The Apex Court in National Agricultural Cooperative Marketing Federation of India Ltd. v. Union of India and others, 2003 260 ITR 548 upheld the retrospective amendment and dismissed the appeal. This Court vide order dated 16.5.2003 (Annexure A-10) passed in CM No. 9016 of 2003 and CWP No. 3242 of 1999 dismissed the writ petition in terms of National Agricultural Cooperative Marketing Federation of India Ltd's case . In pursuance to the judgment of the Supreme Court in National Agricultural Cooperative Marketing Federation of India Ltd's case , the Tribunal vide order dated 22.7.2003 (Annexure A-1) passed in MA Nos. 1 to 4 for the assessment years 1995-96 and 1990-91 to 1993-94 filed by the revenue under Section 254 of the Act, reversed its earlier order dated 23.9.1998 (Annexure A-2) and denied the deduction which was earlier granted under Section 80P(2)(a)(iii) of the Act. Hence, the present appeals.;