SPD Management Services, , Agra V. Income Tax Officer, Ward-1(1)(5), Agra

ITA 132/AGR/2022

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 4240 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2019-2020
• Appeal Filed On: 28-07-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 154; 43B; 143(1); 22

Judgement Text

ITA No.- 132/Agr/2022 SPD Management Service Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH: DB (VIRTUAL HEARING AT DELHI) BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND MS. ASTHA CHANDRA, JUDICIAL MEMBER ITA No:- 132/Agr/2022 ( Assessment Year: 2019-20) SPD Management Services, 34, Kanhiya Kunj, Kamla. Vs. Income Tax Officer, Ward 1(1)(1)(5), Agra. APPELLANT RESPONDENT PAN No: ACJFS0197B Assessee By : Shri Anil Verma, Adv. Revenue By : Shri Shailendra Srivastava, Sr. DR Date of Hearing : 16.01.2024 Date of Pronouncement : 22.01.2024 ORDER PER SHAMIM YAHYA, A.M. This appeal by the Assessee is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)/ NFAC, New Delhi, dated 03.06.2022 and pertains to Assessment Year 2019-20. 2. Brief facts of the case are that the appellant filed the return of Income for AY 2019-20 on 12.10.2019 declaring a total income of Rs.55,43,510/-. The return was ITA No.- 132/Agr/2022 SPD Management Service Page 2 of 4 processed and an Intimation order was issued by the AO-CPC u/s 143(1) on 07.12.2020 determining the total income of Rs.65,19,963/-, thereby making a disallowance/ addition of Rs.9,76,449/- being the delayed deposit of employees' contribution to PF/ ESI u/s 36(1)(va) of the Act. Being aggrieved by this order of intimation, the appellant preferred a rectification application u/s 154 before the A.O.-CPC on 08.02.2021 stating that the disallowance of Rs.9,76,449/- u/s 36(1) (va) was not legally sustainable in view of various judicial pronouncements against such disallowance and hence, this was mistake on the part of the A.O. apparent from the record, which is rectifiable u/s 154 of the Act. However, vide order u/s 154 dated 23.02.2021, the A.O. has rejected the aforesaid application and sustained the disallowance of Rs.9,76,449/- as per the earlier Intimation order. 3. Upon the assessee’s appeal, the Ld. CIT(A) elaborately discuss the issue and confirming the order of the Assessing Officer by concluded as under: “4.11/From the aforesaid discussions, it is vivid that the clarificatory amendment brought in by the Finance Act, 2021 applies to the issue at hand in the instant appeal also. The amendment declares that provisions of section 43B shall not apply and shall be deemed never to have been applied for the purpose of determining the "due date" under section 36(1)(va). 4.12 The aforesaid discussions also clearly establish that the issue of allowability or disallowability of employees' contribution to PF/ ESI was always a debatable one at least till the clarificatory amendment brought into section 36(1)(va) referred to above. It is trite that a debatable issue of this nature cannot be brought within the ambit of section 154 which merely permits the rectification of a mistake apparent from the record. It is a settled law that powers of the AO to rectify an order u/s 154 are very limited and can be exercised only in a case where the AO finds that a mistake apparent from the record had occurred. However, in the case of a debatable issue or where the lengthy arguments are needed to decide the issue, powers u/s 154 of the Act cannot be exercised to amend an already passed order. It is also well understood that even debatable points of law would not fall in the meaning of the expression mistake apparent for the purposes of section 154 of the Act”. ITA No.- 132/Agr/2022 SPD Management Service Page 3 of 4 4. Against this order, the assessee filed an appeal before the ITAT. 5. We have heard both the sides and perused the materials on record. Ld. DR submitted that the issue is now squarely covered and against the assessee by the decision of Hon’ble Supreme Court in the case of Check Mate Services Private Limited 448 ITR 518. 6. In this case, Hon’ble Apex Court categorically held that PF-ESI payment done beyond the specified date, in the respective Acts should be disallowed and added to the income of the assessee. Respectfully following the precedent mentioned above, we uphold the orders of the authorities below. 7. In the result, appeal of the assessee is dismissed. Order Pronounced in the Open Court on 22 .01.2024 Sd/- Sd/- (ASTHA CHANDRA) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 22 /01/2024 (Pooja) Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA No.- 132/Agr/2022 SPD Management Service Page 4 of 4 Date of dictation 16.01.24 Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr. PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr. PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order