DCIT, CIRCLE-16(1), NEW DELHI V. M/S. METRO INSTITUTE OF MEDICAL SCIENCE PVT. LTD., NEW DELHI

MA 152/DEL/2023

AI Insights

The case revolves around a Miscellaneous Application filed by the Revenue challenging the Tribunal's earlier decision regarding the deduction claims of employees' contributions to the Provident Fund (PF) and Employees' State Insurance Corporation (ESIC). The Revenue argued that the Tribunal did not consider the Supreme Court's judgment in Checkmate Services P Ltd. v. CIT, which clarified that such contributions are deductible only if paid within the statutory deadlines, not merely by the due date under Section 139(1) of the Income Tax Act. The assessee countered that the Tribunal's decision was based on the law as it stood at the time of the original ruling and that a subsequent Supreme Court decision should not retroactively affect the Tribunal's earlier decision.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 717102 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 16-03-2023
• Other Referred Cases: Checkmate Services P Ltd. v. CIT, Dy. CIT v. ANI Integrated Services Ltd, Infantry Securities and Facilities v. CIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PARKASH
• Assessee Lawyers: VANSHIKA MEHTA
• Section: 43B

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI ‘E’ BENCH, NEW DELHI BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER, AND SHRI NAVEEN CHANDRA, ACCOUNTANT MEMBER MA No. 152/DEL/2023 [A/o ITA No. 3573/DEL/2017 [A.Y 2012-13) The Dy. C.I.T. Vs. M/s Metro Institute of Medical Circle -16(1) Sciences Pvt Ltd 14, Mero Hospital & Heart Institute Ring Road, Lajpat Nagar, New Delhi PAN: AAACU 4148 N (Applicant) (Respondent) Assessee By : Ms. Vanshika Mehta, Adv Shri Anup Mehta, CA Department By : Shri Om Parkash, Sr. DR Date of Hearing : 25.04.2025 Date of Pronouncement : 20.08.2025 ORDER PER NAVEEN CHANDRA, ACCOUNTANT MEMBER:- With this order we shall dispose of the Miscellaneous Application filed by the Revenue for mistake apparent on record in the Tribunal dated 06.09.2022 in ITA No. 3573/DEL/2017 for Assessment Year 2012- 13. Printed from counselvise.com 2 MA No. 152/DEL/2023 M/s Metro Instt of Medical Sciences [A.Y 2012-13] 2. In this application, the department submitted that the decision of the ITAT is not acceptable on the issue of employee’s contribution to the Employees Provident Fund (EPF) which is deemed as the employer’s income u/s 2(24)(x) of the Act and which is subject to deduction u/s- 36(1)(va) of the Act is also governed by Section 43B of the Act. 3. The ld. DR has contended that the ITAT has not considered the judgment of the Hon'ble Supreme Court in the case of M/s Checkmate Services Civil Appeal No. 2833/2016 order dated 12.10.2022 wherein it has been held that benefit of section 43B cannot be made available for the delayed payment of employees contribution and provision of section 36(1)(va) are application for such contribution. 4. Per contra, the ld. counsel for the assessee supported the findings of the Tribunal. It is the say of the ld. counsel for the assessee that no rectifiable mistake has occurred in the order of the Tribunal. 5. We have heard the rival submissions and have perused the relevant material on record. We have also gone through the Tribunal order [supra]. The Revenue filed the miscellaneous application on the ground that the issue of claim of deduction of the amount deposited on account Printed from counselvise.com 3 MA No. 152/DEL/2023 M/s Metro Instt of Medical Sciences [A.Y 2012-13] of employees’ contribution to PF and ESIC after due dates specified in PF /ESIC Acts, but before the due date filing of return as prescribed in Section 139(1) of the Act is not allowable, in view of the subsequent judgment of the Hon’ble Supreme Court in the case of Checkmate Services P Ltd. v. CIT (2022 ) 448 ITR 518 (SC) vide judgment and order dated 12/10/2022 has decided the controversy in favour of the department . The assessee contended that once the matter has attained finality, then based on subsequent judgment of a Higher Court, cannot be the ground to recall or to review the order within the scope and ambit of Section 254(2). 6. We find that the Bombay High Court in the case of Infantry Securities and Facilities in Writ Petition 17175 of 2024 dated 3rd December, 2024 has held that where the Supreme Court decision in the case of Checkmate Services P Ltd. v. CIT was not in existence when the Tribunal passed the order, not following the said decision can not be considered as mistake apparent from record. The hon’ble Bombay High Court held as under: 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 Printed from counselvise.com 4 MA No. 152/DEL/2023 M/s Metro Instt of Medical Sciences [A.Y 2012-13] 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. 7. The aforesaid hon’ble Bombay High Court also approved the Tribunal Mumbai decision in the case of Dy. CIT v. ANI Integrated Services Ltd (MA No.167/MUM/2023 (Arising out of ITANo.1634/Mum/2021) dt.29-5-2024) (AY.2019-20) on the above subject. In the instant case, the Tribunal passed its order on 06.09.2022 where the Checkmate decision was passed on 12.10.2022. Since the decision of Checkmate was not available on the date of passing the Tribunal order, the tribunal could not have applied that the decision of Checkmate. Therefore, we are of the considered view that no mistake Printed from counselvise.com 5 MA No. 152/DEL/2023 M/s Metro Instt of Medical Sciences [A.Y 2012-13] apparent from record has been pointed out through this MA. Accordingly, the same is dismissed. 8. In the result, the MA of the Revenue in MA No. 152/DEL/2023 is dismissed. The order is pronounced in the open court on 20th.08.2025. Sd/- Sd/- [CHALLA NAGENDRA PRASAD] [NAVEEN CHANDRA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 20th August, 2025. VL/ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi Printed from counselvise.com 6 MA No. 152/DEL/2023 M/s Metro Instt of Medical Sciences [A.Y 2012-13] Sl No. PARTICULARS DATES 1. Date of dictation of Tribunal Order . 2. Date on which the typed draft Tribunal Order is placed before the Dictation Member 3. Date on which the typed draft Tribunal Order is placed before the other Member 4. Date on which the approved draft Tribunal Order comes to the Sr. P.S./P.S. 5. Date on which the fair Tribunal Order is placed before the Dictating Member for pronouncement 6. Date on which the signed order comes back to the Sr. P.S./P.S 7. Date on which the final Tribunal Order is uploaded by the Sr. P.S./P.S. on official website 8. Date on which the file goes to the Bench Clerk alongwith Tribunal Order 9. Date of killing off the disposed of files on the judiSIS portal of ITAT by the Bench Clerks 10. Date on which the file goes to the Supervisor (Judicial) 11. The date on which the file goes for xerox 12. The date on which the file goes for endorsement 13. The date on which the file goes to the Superintendent for checking 14. The date on which the file goes to the Assistant Registrar for signature on the Tribunal order 15. Date on which the file goes to the dispatch section 16. Date of Dispatch of the Order Printed from counselvise.com "