ACIT, Rourkela Circle, Rourkela V. Shree Jagannath Carriers Private Limited, Rourkela

MA 1/CTK/2023

AI Insights

The case involves the Assistant Commissioner of Income Tax, Rourkela Circle, Rourkela as the appellant and M/s. Sheree Jagannath Carriers Pvt Ltd. as the respondent. The revenue filed a Miscellaneous Application under Section 254(2) of the Income Tax Act, seeking to recall the Tribunal's order dated 5.4.2022 in ITA No.129/CTK/2021 for the assessment year 2019-20. The application was based on a Supreme Court decision in Checkmate Services (P.) Ltd Vs. CIT, which clarified the non-allowability of employees' contributions to PF and ESI if not paid within the prescribed due dates under the relevant Acts. However, the Tribunal dismissed the M.A. due to it being filed beyond the permissible time frame.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 300252 (ITAT-CUTTACK)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-02-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-02-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 05-01-2023
• Other Referred Cases: Checkmate Services (P.) Ltd Vs. CIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order
• Section: 43B; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER Asst. Commissioner of Income Tax, Rourkela Circle, Rourkela. PAN/GIR No. (Appellant Per Bench By way of this M..A. u/s.254 recall the order of the Tribunal dated 5.4.2022 in ITA No.129/CTK/2021 for the assessment year 2019 2. Shri S.C.Mohanty, ld Sr DR appeared for the revenue and Shri K.K.Bajoria, ld AR appeared for the assessee. IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER M.A.No.01/CTK/2023 (in ITA No.129/CTK/2021) Assessment Year : 2019-2020 Asst. Commissioner of Income Tax, Rourkela Circle, Rourkela. Vs. M/s. Sheree Jagannath Carriers Pvt Ltd., C Power House Road, Rourkela PAN/GIR No.AANCS 9242 C (Appellant) .. ( Respondent Assessee by : Shri K.K.Bajoria, AR Revenue by : Shri S.C.Mohanty Date of Hearing : 24/0 Date of Pronouncement : 24/0 O R D E R By way of this M..A. u/s.254(2) of the Act, the revenue seeks to the order of the Tribunal dated 5.4.2022 in ITA No.129/CTK/2021 for the assessment year 2019-20 for recalling the order. Shri S.C.Mohanty, ld Sr DR appeared for the revenue and Shri K.K.Bajoria, ld AR appeared for the assessee. Page1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER 21) 2020 M/s. Sheree Jagannath Carriers Pvt Ltd., C-6, Nirmal Market, Power House Road, Rourkela Respondent) K.K.Bajoria, AR S.C.Mohanty, Sr DR 02/2023 /02/2023 (2) of the Act, the revenue seeks to the order of the Tribunal dated 5.4.2022 in ITA No.129/CTK/2021 for Shri S.C.Mohanty, ld Sr DR appeared for the revenue and Shri M.A.No.01/CTK/2023 (in ITA No.129/CTK/2021) Assessment Year : 2019-2020 Page2 | 4 3. At the outset, ld AR of the assessee submitted that the M.A. filed by the revenue is barred by 71 days. He referred to Section 254(2) of the Act, which provides that, The Appellate Tribunal may, at any time within six months from the end of the month in which the order was passed, with a view to rectifying any mistake apparent from the record, amend any record passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer. It was his submission that as the M.A. is filed by the revenue is beyond the stipulated period, same should be dismissed. 4. In reply, ld SR DR submitted that the issue is now squarely covered by the decision of the Hon'ble Supreme Court in the case of Checkmate Services (P.) Ltd Vs. CIT rendered in Civil Appeal No.2833 of 2016 dated 12.10.2022, reported in [2022] 143 taxmann.com 178 (SC), wherein, the Hon'ble Supreme Court has categorically held that if the employees contribution to PF and ESI has been paid beyond the time prescribed under the relevant PF Act, then same is not allowable under section 43B of the Act even after the payment has been made before the due date of filing of return under the Income tax Act. It was the submission that the amount of employees contribution to PF and ESI, which has not been paid within the due date as prescribed under the relevant Act, has been held by Hon'ble Supreme Court to be not allowable u/s.36(1)(va) of the Act. It was the submission that the Hon'ble Supreme Court in paras 52 & 53 has also M.A.No.01/CTK/2023 (in ITA No.129/CTK/2021) Assessment Year : 2019-2020 Page3 | 4 categorically held that the provisions of section 43B would not apply to the employees' contribution to PF and ESI. He submitted that as in this case, the Hon’ble Supreme Court has rendered the decision in the month of October, 2022, therefore, there was delay in filing the M.A., which should be condoned. 5. We have considered the rival submissions. A perusal of M.A. filed by the revenue shows that the same is time barred by 71 days. The date of the order of the Tribunal is 5.4.2022 and the M.A. has to be preferred within a period of six months from the end of the month in which the order was passed. Counted in this manner, the limitation period for preferring application is upto 31.10.2022. The application has actually been preferred on 9.1.2023 and, accordingly, as per the interpretation, the application is time barred as prescribed under the Act. Consequently, we dismiss the M.A. filed by the revenue 6. In the result, M.A. filed by the revenue stands dismissed. Order dictated and pronounced in the open court on 24/02/2023. Sd/- sd/- (Arun Khodpia) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 24/02/2023 B.K.Parida, SPS (OS) M.A.No.01/CTK/2023 (in ITA No.129/CTK/2021) Assessment Year : 2019-2020 Page4 | 4 Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : Asst. Commissioner of Income Tax, Rourkela Circle, Rourkela 2. The Respondent: M/s. Sheree Jagannath Carriers Pvt Ltd., C-6, Nirmal Market, Power House Road, Rourkela 3. The CIT(A)-, Sambalpur 4. Pr.CIT-, Sambalpur 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//