ACIT, CIRCLE-6(2), NEW DELHI V. CUSHMAN & WAAKEFIELD INDIA PVT. LTD., NEW DELHI

MA 123/DEL/2023

AI Insights

The case involves the Income Tax Department (Revenue) and Cushman & Wakefield India Pvt. Ltd. concerning the assessment year 2017-18. The Revenue filed a Miscellaneous Application (MA No.123/Del/2023) seeking to revise the Tribunal's earlier decision which had allowed the assessee's appeal on the PF and ESI contributions. The Revenue argued that a subsequent Supreme Court judgment in Checkmate Services P. Ltd. vs. CIT, which clarified the law regarding deductions of employees' shares under Section 36(1)(va) of the Income Tax Act, should apply retroactively to their case. However, the Tribunal dismissed the application, stating that the Supreme Court's decision could not be applied retrospectively to alter the Tribunal's earlier decision, as the legal position at the time of the original decision was different.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 23830 (ITAT-DELHI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-04-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Other Referred Cases: Checkmate Services P. Ltd. vs. CIT, Infantry Security and Facilities through proprietor Tukaram M. Surayawanshi vs. The Income Tax Officer, Ward 4(5)
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAHIL KUMAR BANSAL
• Section: 254(2); 139(1)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES :B: NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER Miscellaneous Application No.123/Del/2023 (ITA No.9647/Del/2019) Assessment Year : 2017-18 ACIT, Circle 6(2), New Delhi. Vs. Cushman & Wakefield India Pvt. Ltd., 11th Floor, JA-1120-1121, Tower-A, DLF Tower, Jasola District Centre, New Delhi – 110 025. PAN: AAACC5006B (Applicant) (Respondent) Applicant by : Shri Jaskaran Singh, CA Department by : Shri Sahil Kumar Bansal, Sr. DR Date of Hearing : 14.02.2025 Date of Pronouncement : 02.04.2025 ORDER PER ANUBHAV SHARMA, JM: Heard on the application u/s 254(2) of the Income Tax Act 1961. Heard and perused the Record. The application in hand has been filed by the Revenue on the basis that the appeal of the assessee was allowed on the PF and ESI issue and now by virtue of the judgement of the Hon’ble Supreme Court in Checkmate Services P. Ltd. vs. CIT, 143 Taxmann.com 178 the issue is covered in favour of the Revenue and MA No.123/Del/2023 2 the disallowance was justified. The Hon’ble Bombay High Court in Writ Petition 17175 of 2024 Infantry Security and Facilities through proprietor Tukaram M. Surayawanshihas Versus The Income Tax Officer, Ward 4(5), order dated 3 December held as follows; “14. In our clear opinion, the question would be required to be answered against the Revenue and in favour of the assessee. The reasons for which we discuss hereunder. In such context, at the outset, we may observe that the petitioner had succeeded before the Tribunal on the basis of the position in law as it prevailed on the day the decision was rendered on the petitioner's appeal on 26 July 2022. Subsequent to the said orders passed by the Tribunal, on 12 October 2022, the Supreme Court rendered its decision in \"Checkmate Services Private Limited\" (Supra), whereby the Supreme Court held that the deduction of the employees' share can be allowed under Section 36(1)(va) of the IT Act, only if such share was deposited before the time limit under the respective statutes and not before the due date under Section 139(1) of the IT Act. In the fact situation, certainly it cannot be said that the Tribunal has overlooked the existing position in law, as laid down by the Supreme Court or the High Court, so as to bring about a situation that the law declared by the Supreme Court was not followed by the Tribunal and/or the decision of the Tribunal is contrary to the law as laid down by the Supreme Court. Such decision of the Supreme Court which never existed when the Tribunal passed the original order could never have been applied by the Tribunal, and hence it cannot be said that there was any mistake on the face of the record, so as to confer jurisdiction on the Tribunal to exercise its jurisdiction under Section 254(2) of the IT Act.” MA No.123/Del/2023 3 In the light of above, the Revenue’s plea cannot be accepted by invoking the provisions of section 254(2) of the Act. Accordingly, the application is dismissed. Order pronounced in the open court on 02.04.2025. Sd/- Sd/- (SHAMIM YAHYA) (ANUBHAV SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 02nd April, 2025. dk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, New Delhi "