DEPUTY COMMISSIONER OF INCOME-TAX, CPC, BENGALURU V. SH MURALEEDHARAN KALATHIL, COCHIN

MA 198/PUN/2023

AI Insights

The case revolves around a Miscellaneous Application filed by the Revenue against an ITAT order that allowed the deduction of employees' contributions to PF and ESI, which were deposited after the statutory due date but before the due date of filing the income tax return. The Revenue contended that this decision was not in conformity with the Supreme Court's ruling in Checkmate (P) Ltd vs. CIT-1, which mandated that such contributions must be paid within the due dates prescribed under the relevant statutes to be eligible for deduction. The ITAT, however, found no error in its original decision as it was based on the law as it stood at the time of the decision, which was later changed by the Supreme Court.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 791519 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2018-2019
• Appeal Filed On: 25-07-2023
• Other Referred Cases: Checkmate (P) Ltd Vs. Commissioner of Income Tax-1, CIT Vs. Ghatge Patil Transports Ltd., Vaibhav Maruti Dombale Vs. Assistant Registrar, ITAT, Gujarat State Road Transport Corporation
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAMOD SHAHAKAR
• Assessee Lawyers: ARJUN RAJ VIRTUAL HEARING
• Keywords: Set aside
• Section: 28; 43B

Judgement Text

" आयकर अपीलीय अधिकरण ”ए” न्यायपीठ पुणेमें। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “A” :: PUNE BEFORE MS.ASTHA CHANDRA, JUDICIAL MEMBER, AND DR.DIPAK P. RIPOTE, ACCOUNTANT MEMBER Miscellaneous Application No.198/PUN/2023 (arising out of ITA No.375/PUN/2021) निर्धारणवषा / Assessment Year: 2018-19 The Income Tax Officer, Non Corporate Ward-2(5), Kochi. V s Sh. Muraleedharan Kalathil, 9A, Sai Sree Ram Prakash Vihar AWHO, Ernakulam – 682023. PAN: AFHPK6833P Appellant/ Revenue Respondent /Assessee Assessee by Shri Arjun Raj (Virtual Hearing) Revenue by Shri Pramod Shahakar - JCIT Date of hearing 07/11/2025 Date of pronouncement 09/12/2025 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This is a Miscellaneous Application under section 254(2) of the Income Tax Act, 1961 filed by Revenue against the ITAT Order in ITA No.375/PUN/2021 dated 19.09.2022 for A.Y.2018-19. The Revenue has raised the following grounds of appeal : “1. The appeal allowed by the ITAT is not maintainable on the ground that the decision of the ITAT is not in conformity with the decision rendered by the Hon'ble Supreme Court in the case of Checkmate (P) Printed from counselvise.com MA No.198/PUN/2023 [D] 2 Ltd Vs. Commissioner of Income Tax-1, Civil Appeal No. 2833 of 2016 dated 12/10/2022. 2. In the facts and circumstances of the case, the Hon'ble ITAT is not correct to direct the Assessing Officer to delete the disallowance of Rs. 16,40,621/- towards the employees contribution toward PF & ESI that was remitted after the due date prescribed in the relevant statute. Accordingly the amount of Rs.16,40,621/- was disallowed u/s 36(1)(va) r.w. s 43B of the Income Tax Act, 1961. 3. The apex court had held in the case of Checkmate (P) Ltd Vs. Commissioner of Income Tax-1, Civil Appeal No. 2833 of 2016, that deduction shall be admissible only if the amount is paid within the due date as prescribed under those Act and not before the filing of ITR. Any order passed by the apex court is the law of the land. Therefore, any order passed not in consonance with the Apex Court's order can be said to be erroneous to that extent. Thus, a cause for the filing of Miscellaneous Application for correcting that error can be said to have arisen. 4. The Apex Court on the basis of decision in the case of Checkmate (P) Ltd Vs. Commissioner of Income Tax-1, Civil Appeal No. 2833 of 2016, has upheld the order of the Hon'ble Gujarat High Court. In the case of Gujarat State Road Transport Corporation, Hon'ble Gujarat High Court had held that w.r.t. the sum received by the assessee from any of his employees to which the provision of sub-clause (x) of clause(24) of section (2) applies, the assessee shall be entitled to deduction in computing the income referred to in section 28 w.r.t. such sum credited by the assessee to the employee's account in the relevant fund or funds on or before the due date mentioned in explanation to section 36(1) (va) of the Income Tax Act. Printed from counselvise.com MA No.198/PUN/2023 [D] 3 5. The Raipur bench of the ITAT in MA No. 1/RPR/2023 & 38 others dated 29/05/2023, had allowed the filing of Miscellaneous Applications filed by the department, for the limited purpose of giving effect to the judgment of the Apex Court in the case of Checkmate (P) Ltd Vs. Commissioner of Income Tax-1, Civil Appeal No. 2833 of 2016. 6. In the facts and circumstances of the case, therefore the decision of the ITAT, allowing the appeal is perverse and unjustifiable. 7 It is prayed that the ITAT may amend its order in accordance with section 254(2) of the Income Tax Act, 1961. 8. For these and other grounds that may be urged at the time of hearing, it is requested that the order of the ITAT dated 19/09/2022 may be set aside and the appeal be reinstated.” 2. In this case, Assessee had filed an appeal before ITAT Pune Bench against the order of ld.Commissioner of Income Tax(Appeals), dated 19.08.2021, emanating from order u/s.143(1) of the Act, 1961 dated 17.05.2019 for A.Y.2018-19. 3. The ITAT in ITA No.375/PUN/2021 for A.Y.2018-19 in Assessee’s case in the order dated 19.09.2022 observed in para 2 as under : “2. In the present appeal, the question involved is allowability of employees’ contribution of ESIC and PF, which was deposited beyond time mentioned in the respective Statutes but before filing income tax return u/s 139(1) of the Act.” Printed from counselvise.com MA No.198/PUN/2023 [D] 4 4. ITAT following decision of Hon’ble Bombay High Court in the case of CIT Vs. Ghatge Patil Transports Ltd., in IT Appeal Nos.1002 & 1034 of 2012 held that payment of employees contribution beyond the due date mentioned in the relevant statute but before the due date of filing Return of Income under section 139(1) is allowable as expenditure under section 36(1)(va) of the Act. 5. The order of ITAT in Assessee’s case in ITA No.375/PUN/2021 for A.Y.2018-19 was delivered on 19.09.2022. The decision of Hon’ble Supreme Court in the case of Checkmate (P) Ltd Vs. CIT-1 in Civil Appeal No.2833 of 2016 dated 12.10.2022 was delivered after the ITAT’s decision. Thus, when we heard the case and decided the case, there was no decision of Hon’ble Supreme Court referred by Revenue. 6. On identical facts, Hon’ble Bombay High Court in the case of Vaibhav Maruti Dombale Vs. Assistant Registrar, ITAT 178 taxmann.com 447 (Bom) dated 12.09.2025 has held as under : “24. For all the aforesaid reasons, we hold that a subsequent ruling of a Court cannot be a ground for invoking the provisions of Section 254(2) of the IT Act. Section 254(2) of the IT Act can be invoked with a Printed from counselvise.com MA No.198/PUN/2023 [D] 5 view to rectify any mistake apparent from the record. Admittedly, on the date when the original order was passed by the ITAT on 5th September 2022, it followed the law as it stood then. This was overruled subsequently by Hon’ble Supreme Court in Checkmate Services (supra). Hence, we are of the view that, on the date when the ITAT passed its original order dated 5th September 2022, it could not be said that there was any error or mistake apparent on the record, giving jurisdiction to the ITAT to invoke Section 254(2)n of the IT Act.” 7. Ld.Departmental Representative(ld.DR) for the Revenue has not brought on record any contrary decision. 8. In these facts and circumstances of the case, respectfully following Hon’ble Bombay High Court in the case Vaibhav Maruti Dombale(supra), we hold that there is no mistake apparent from record in our order dated 19.09.2022. 9. Accordingly, the Miscellaneous Petition filed u/s.254(2) of the Act, by the Revenue is dismissed. Order pronounced in the open Court on 09 December, 2025. Sd/- Sd/- MS.ASTHA CHANDRA Dr.DIPAK P. RIPOTE JUDICIAL MEMBER ACCOUNTANT MEMBER पपणे / Pune; ददिधांक / Dated : 09 Dec, 2025/ SGR Printed from counselvise.com MA No.198/PUN/2023 [D] 6 आदेशकीप्रनिनिनपअग्रेनषि / Copy of the Order forwarded to : 1. अपऩिधर्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. नवभधगऩयप्रनिनिनर्, आयकर अपऩिऩय अनर्करण, “ए” बेंच, पपणे / DR, ITAT, “A” Bench, Pune. 6. गधर्ाफ़धइि / Guard File. आदेशधिपसधर / BY ORDER, / / TRUE COPY / / Senior Private Secretary आयकर अपऩिऩय अनर्करण, पपणे/ITAT, Pune. Printed from counselvise.com "