INCOME TAX OFFICER, WARD 1(1), PUNE V. M/S ENERTECH UPS P LTD, PUNE

MA 219/PUN/2023

AI Insights

The case revolves around a Miscellaneous Application by the Revenue seeking to recall an earlier Tribunal order that allowed a deduction for employees' contributions towards PF/ESI, which were deposited after the due date but before the due date for filing the income tax return. The Revenue argued that a subsequent Supreme Court decision clarified the law, making the earlier Tribunal decision incorrect. However, the Tribunal, referencing a jurisdictional High Court decision, found that a change in law or subsequent judgment cannot be a ground for reviewing an earlier decision. The Tribunal dismissed the Revenue's application, maintaining the original order.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 669525 (ITAT-PUNE)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-06-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2019-2020
• Other Referred Cases: Checkmate Services P. Ltd. vs. CIT, Infantry Security and Facilities through, proprietor Tukaram M. Surayawanshi vs. ITO, Beghar Foundation vs. Justice K. S. Puttaswamy, CIT vs. Ghate Patil Transports Ltd.
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RATNAKAR SHELAKE
• Assessee Lawyers: C.V.DESHPANDE
• Keywords: Set aside
• Section: 12; 2

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI MANISH BORAD, ACCOUNTANT MEMBER AND SHRI VINAY BHAMORE, JUDICIAL MEMBER M.A. No.219/PUN/2023 (Arising out of ITA No.665/PUN/2021) िनधाᭅरण वषᭅ / Assessment Year : 2019-20 ITO, Ward-1(1), Pune. Vs. M/s. Enertech UPS P. Ltd., S. No.399 1 2 Plot No.5. Bhare Village Pirangut, Pune- 412111. PAN : AAACE6766A Appellant Respondent आदेश / ORDER PER VINAY BHAMORE, JM: This Miscellaneous Application at the instance of Revenue is directed against the order of this Tribunal bearing ITA No.665/PUN/2021 dated 30.09.2022. 2. The only apparent mistake pointed out by the Revenue is that in the impugned order this Tribunal deleted the disallowance made u/s 36(1)(va) of the Act for PF/ESI contribution by the employees at Rs.7,86,380/- on the ground that the alleged sum though deposited after the due date but has been finally deposited before due date of furnishing the return of income u/s 139(1) of the Act. However, Revenue by : Shri Ratnakar Shelake Assessee by : Shri C. V. Deshpande Date of hearing : 02.05.2025 Date of pronouncement : 24.06.2025 MA No.219/PUN/2023 2 subsequent to the impugned order, Hon’ble Apex Court in the case of Checkmate Services P. Ltd. vs. CIT, Civil Appeal No.2833 of 2016 dated 12.10.2022 held that if there is a delay in deposit of employees’ contribution towards PF/ESI after the due date prescribed under the relevant Act then such amount deserves to be disallowed u/s 36(1)(va) of the Act and retains as an income u/s 2(24)(x) of the Act. It is further submitted in the Miscellaneous Application that since the position of law has been cleared by the Hon’ble Apex Court, therefore, the apparent mistake has cropped up in the impugned order and the same deserves to be recalled. 3. On the other hand, Ld. Counsel for the assessee stated that the issue raised in the instant Miscellaneous Application stands squarely covered by the judgement of Hon’ble Jurisdictional High Court in the case of Infantry Security and Facilities through, proprietor Tukaram M. Surayawanshi vs. ITO, W.P. Nos.17175 to 17177 of 2024 dated 03.12.2024 where the Hon’ble Court has held that if a subsequent decision/judgement of Co-ordinate or Larger Bench by itself cannot be regarded as a ground for review of the order passed prior to such decision/judgement. Reliance also placed on the judgement of Hon’ble Apex Court in the case of Beghar Foundation vs. Justice K. S. Puttaswamy [2021] 123 taxmann.com 344 (SC). MA No.219/PUN/2023 3 4. We have heard rival contentions and perused the records placed before us. The grievance of the Revenue in the instant Miscellaneous Application is that there is an apparent mistake in the impugned order of this Tribunal because position of law has made clear in the judgement of Hon’ble Apex Court passed subsequent to the impugned order on the issue of disallowance of employees’ contribution towards PF/ESI u/s 36(1)(va) r.w.s. 2(24)(x) of the Act. We observe that in the impugned order this Tribunal while dealing with the issue of disallowance of employees’ contribution deposited after the due date prescribed under the relevant Act but prior to the date prescribed for filing of return of income u/s 139(1) of the Act was allowed in favour of the assessee based on various judgements of Hon’ble High Court including that of the Hon’ble Jurisdictional High Court in the case of CIT vs. Ghate Patil Transports Ltd., 368 ITR 749 (Bom.). However, subsequent to the date of pronouncement of the impugned order, Hon’ble Apex Court in the case of Checkmate Services P. Ltd. (supra) held that the deduction u/s 36(1)(va) of the Act cannot be allowed if the employees’ contribution towards PF/ESI is paid beyond the relevant due date prescribed under the respective Acts. In other words, even if the employees’ contribution towards PF/ESI is deposited prior to the due date of filing of return of income u/s 139(1) of the Act but after MA No.219/PUN/2023 4 the prescribed due date under the relevant Act governing PF/ESI then also the assessee cannot claim deduction u/s 36(1)(va) of the Act. However, whether the decision/judgement of Co-ordinate or Larger Bench/Hon’ble High Court/Hon’ble Apex Court pronounced after the date of impugned order can be taken as a ground for holding that an apparent mistake has been made by the Tribunal in the impugned order, Hon’ble Jurisdictional High Court in the case of Infantry Security and Facilities through, proprietor Tukaram M. Surayawanshi (supra) has dealt with the very same issue and has held as under :- “16. In so far as the petitioner's contention on the jurisdiction of the Tribunal to entertain the Miscellaneous Application is concerned, it appears that the position in law is well settled. The jurisdiction as conferred under sub- Section(2) of Section 254 is akin to the jurisdiction conferred on the Civil 3 DECEMBER 2024 Ganesh Lokhande, PA 13TO15-WP-17175-2024+.DOC Court under the provisions of Order XLVII, Rule 1 of the CPC inter alia to correct mistakes apparent on the face of the record. However, on a comparative reading of sub-Section (2) of Section 254 of the IT Act, and Rule 1 of Order XLVII of CPC, it appears that such jurisdiction conferred on the Tribunal is more restricted. 17. In Beghar Foundation (Supra), the Supreme Court was considering a review petition, filed against the final judgment and order dated 26 September 2018, passed on the main proceedings. In rejecting the review petition, the Supreme Court observed that no case for review of such judgment was made out, and most importantly on the ground that change in law or subsequent decision/judgment of coordinate or larger bench by itself cannot be regarded as a ground for review. Such principles of law are squarely applicable in the facts of the present case. 18. In Sanjay Kumar Agrawal vs. State Tax Officer (1) and Another 5, the Supreme Court following the decision in the Constitution Bench in Beghar Foundation (Supra), made the following observations: \"15. It is very pertinent to note that recently the Constitution Bench in Beghar Foundation v. K. S. Puttaswamy (Aadhaar MA No.219/PUN/2023 5 Review - 5 J.), held that even the change in law or subsequent decision/judgment of coordinate Bench or larger Bench by itself cannot be regard as a ground for review.\" 19. We may observe that recently a bench of the Tribunal in the case of ANI Integrated Services Ltd (Supra), had the occasion to consider the very issue as raised by the Revenue in light of the decision rendered by the Supreme Court in Checkmate Services Private Limited (Supra). In such case similar applications were filed by the Revenue praying that the Tribunal set aside its orders in relation to Employees State Insurance Corporation (\" ESIC \" for short) (for the Assessment Year 2019-20) considering the changed position in law in \"Checkmate Services Private Limited\" (Supra). The Tribunal by its decision dated 29 May 2024 [ANI Integrated Services Limited (Supra)] did not accept the contentions as urged on behalf of the Revenue and rejected the Miscellaneous Applications filed by the Revenue, also considering the decision in Beghar Foundation (Supra) and the scope of its limited jurisdiction under Section 254(2) of the IT Act. We are in complete agreement with the view taken by the Tribunal in ANI Integrated Services Ltd (Supra) and which is on the very issue as urged by the petitioner . 20. In view of the aforesaid discussion, we are of the clear opinion that the Tribunal was in a patent error in exercising jurisdiction under Section 254(2) in passing the impugned order. The petitions accordingly need to succeed. The petitions are allowed in terms of prayer clause (a) of each of these petitions.” 5. On going through the above judgement of Hon’ble Jurisdictional High Court (supra) and examining the issue raised in the instant Miscellaneous Application, we find it stands squarely applicable on the facts of the instant case and thus hold that any subsequent decision/judgement of Co-ordinate or Larger Bench by itself cannot be regarded as a ground for review of a decision of this Tribunal as the scope of jurisdiction u/s 254(2) is limited to the extent of any apparent mistake in the order, but any subsequent decision/judgement of Co-ordinate or Larger Bench/Higher Judicial Forum pronounced after the date of order of this Tribunal on the MA No.219/PUN/2023 6 very same issue dealt with by this Tribunal cannot be regarded as ground for reviewing and recalling the order. Thus, we do not find any merit in the Miscellaneous Application filed by the Revenue. 6. In the result, the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced on this 24th day of June, 2025. Sd/- Sd/- (MANISH BORAD) (VINAY BHAMORE) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; ᳰदनांक / Dated : 24th June, 2025. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The Pr. CIT concerned. 4. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “A” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 5. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune. "