NFAC Delhi, Delhi V. Such Media Publication P Ltd , CIT (A) NFAC Delhi

MA 11/Ind/2023

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The case revolves around a Miscellaneous Application filed by the Income Tax Officer (ITO), Bhopal, against Such Media Publications Private Limited, concerning the assessment year 2019-20. The Revenue sought to recall an ITAT order dated 23.08.2022, which had allowed the assessee's appeal regarding deductions for employees' contributions to PF/ESI. The Revenue argued that the ITAT's earlier decision was in error following a Supreme Court judgment that clarified the non-allowability of such deductions if paid after the statutory due dates but before the due date for filing the income tax return. The Tribunal examined the timing of the M/A filing and the substantive legal issue concerning the deductibility of late payments to PF/ESI.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130736 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-08-2023
• Assessment Year: misc
• Appeal Filed On: 12-03-2023
• Other Referred Cases: Checkmat Services Private Limited vs. CIT, Pacific Projects Limited Vs. ACIT, ACIT, Central, Indore Vs. Shri Manish Kedia
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 43B; 139(1); 254(2)

Judgement Text

Page 1 of 4 आयकर अपीलȣय अͬधकरण, इंदौर Ûयायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER MA No. 11/Ind/2023 (Arising out of ITA No.66/Ind/2022) Assessment Year: 2019-20 ITO, 2(1), Bhopal बनाम/ Vs. Such Media Publications Private Limited, AVN Towers, M.P.Nagar, Bhopal (Applicant/Revenue) (Respondent/Assessee) PAN: AAYCS6918G Revenue by Shri Ashish Porwal, Sr. DR Assessee by Mrs. Nisha Lahoti, CA and Shri Vijay Bansal, CA Date of Hearing 04.08.2023 Date of Pronouncement 04.08.2023 आदेश/O R D E R Per B.M. Biyani, A.M.: This Misc. Application [“M/A”] u/s 254(2) of Income-tax Act, 1961 is preferred by Revenue seeking recall of Order dated 23.08.2022 of ITAT, Indore Bench in ITA No.66/Ind/2022 for assessment-year 2019-20 by which the Assessee’s appeal was allowed. 2. Heard the learned Representatives of both sides at length and case- records perused. ITO Bhopal vs. Such Media Publications P.Ltd., Bhopal MANo.11/Ind/2023 Assessment year 2019-20 Page 2 of 4 3. At the start of hearing, Ld. AR for the assessee-respondent raised a legal objection stating that the impugned order dismissing the Revenue’s appeal was passed by ITAT on 23.08.2022 and the present M/A had been filed by the Revenue on 13.03.2023. Ld. AR invited our attention to the provision of section 254(2) whereunder this M/A is filed; that reads as under: “(2) 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 order 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:” 4. Ld. AR submitted that the language of section 254(2) is very clear which provides for filing of M/A within six months from the end of the month in which the order was passed. Since in the present case, the original order disposing of appeal was passed on 23.08.2022, the prescribed time-limit got expired on 28.02.2023. Hence, the M/A filed by Revenue on 13.03.2023 is barred by limitation having been filed beyond the outer limit prescribed in section 254(2) and is not maintainable; the same must be dismissed. Ld. DR for revenue-applicant, however, submitted that although the Bench passed impugned order on 23.08.2022, it was received by the office of concerned PCIT on 21.12.2022 as informed by concerned AO in letter dated 28.07.2023, copy shown in the open Court and also filed through Inward Entry No. 689 in the office of ITAT. Therefore, the time-limit of 6 months shall be calculated from 21.12.2022 i.e. the date of actual receipt of order by revenue and not from 23.08.2022 in view of recent decision of this very Bench of ITAT, Indore in MA No. 19/Ind/2022 (Arising out of ITA No. 82/Ind/2021), ACIT, Central, Indore Vs. Shri Manish Kedia. Therefore, the present M/A filed by Revenue is within time-limitation and must be allowed. 5. We have considered submissions of both sides. We find that the in M/A No. 19/Ind/2022 (supra), this Bench has, following the ITO Bhopal vs. Such Media Publications P.Ltd., Bhopal MANo.11/Ind/2023 Assessment year 2019-20 Page 3 of 4 decision of Hon’ble Delhi High Court in Pacific Projects Limited Vs. ACIT, 278 Taxmann 396, categorically held that the time period of 6 months shall be computed from the date of actual receipt of order. Notably, the receipt date of order by revenue is reported to be 21.12.2022. During hearing, the dispatch register of ITAT was also produced by staff of ITAT before us and on verification of same, we found that the impugned Order was dispatched on 25.11.2022. Therefore, whether the 6 months’ period is computed from the date of receipt of order by revenue (21.12.2022) or from date of dispatch by ITAT (25.11.2022), the filing of M/A on 13.03.2023 is valid as per view taken by us in M/A No. 19/Ind/2022 (supra). Therefore, we hold that the present M/A is not barred by time-limitation. The objection raised by Ld. AR is rejected accordingly. 6. Now coming to the merits of the M/A, on perusal of impugned order it emerges that the issue involved was - Whether or not the employee’s contribution to PF/ESI paid after due date under the respective laws but before due date for filing return of income u/s 139(1) was allowable as deduction? While holding the same as an allowable deduction u/s 36(1)(via) read with section 43B of Income-tax Act, 1961, the ITAT followed certain decisions of Hon’ble Courts favouring the assessee. Now, the Hon'ble Supreme Court has settled this controversy in the case of Checkmat Services Private Limited vs. CIT 448 ITR 518 against assessee and in favour of revenue by holding that the payment of employees’ contribution to PF / ESI after due dates under their respective laws is not allowable as deduction u/s 36(1)(va) even if the payment is made on or before due date of filing the return of income u/s 139(1). Hon'ble Supreme Court has also held that provisions of Section 43B does not cover the deduction of employees’ contribution to PF/ ESI. Therefore, in view of judgement in Checkmat Services Private Limited vs. CIT (supra), an apparent mistake has crept in the impugned order taking a view which is contrary to the judgment of Hon'ble Supreme Court. Hence, this is a fit situation to re-call the ITO Bhopal vs. Such Media Publications P.Ltd., Bhopal MANo.11/Ind/2023 Assessment year 2019-20 Page 4 of 4 impugned Order passed by ITAT, Indore. We do so and restore the original appeal. The registry shall list original appeal for hearing on 04.09.2023. Ld. Representatives of both sides have noted the date of hearing; no separate notice therefore. 7. Resultantly, this M/A is allowed. Order pronounced in the open court during hearing and subsequently reduced in writing on the same day. sd/- sd/- (VIJAY PAL RAO) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore Ǒदनांक /Dated : 04.08.2023. CPU/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore