JT COMMISSIONER OF INCOME TAX (OSD) IN CHARGE OF DCIT-13(2)(2) , Mumbai V. SODEXO INDIA SERVICES PVT. LTD, MUMBAI

MA 131/MUM/2023

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The case revolves around a Miscellaneous Application filed by the Revenue seeking rectification/recall of the Tribunal's earlier order which had allowed deductions for employees' contributions to PF/ESI paid after the due date. The Tribunal initially followed the Bombay High Court's decision in CIT v. Ghatga Patil Transport Ltd., which was later contradicted by the Supreme Court's decision in Checkmate Services Pvt. Ltd. v. CIT. The Tribunal admitted the Revenue's application for rectification, acknowledged the mistake of law, and dismissed the assessee's appeal based on the Supreme Court's precedent.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123654 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-06-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 22-06-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 02-02-2023
• Other Referred Cases: Checkmate Services Pvt. Ltd. v. CIT, CIT v. Ghatga Patil Transport Ltd., Shetkari Sahkari Ginning and Pressing Factory v. ACIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIRABHADRA S. MAHAJAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAHUL CHAUDHARY (JUDICIAL MEMBER) M.A. No. 131/MUM/2023 (Arising out of ITA No. 2116/MUM/2021) Assessment Year: 2019-2020 Jt. CIT (OSD) in charge of DCIT- 13(2)(2), Room No. 452, 4 th floor, Aayakar Bhavan, M.K. Road, Mumbai-400020. Vs. M/s Sodexo India Services Pvt. Ltd., 1 st floor, Genstar Commercial Complex, Ramchandra Lane Extension, Kanchpada, Malad (West), Mumbai-400064. PAN No. AAACR 2547 Q Appellant Respondent ITA No. 2116/MUM/2021 Assessment Year: 2019-2020 M/s Sodexo India Services Pvt. Ltd., 1 st floor, Genstar Commercial Complex, Ramchandra Lane Extension, Kanchpada, Malad (West), Mumbai-400064. Vs. Jt. CIT (OSD) in charge of DCIT-13(2)(2), Room No. 452, 4 th floor, Aayakar Bhavan, M.K. Road, Mumbai-400020. PAN No. AAACR 2547 Q Appellant Respondent Assessee by : Mr. M.A. Gohel, CA Revenue by : Mr. Virabhadra S. Mahajan, AR Date of Hearing : 23/06/2023 Date of pronouncement : 30/06/2023 PER OM PRAKASH KANT, AM By way of this Miscellaneous Application, the seeking rectification /recall of the order dated 05.05.2020 passed by the Tribunal in ITA No. 2116/Mum/2021 for assessment year 2019-2020. 2. Before us, the Ld. Departmental Representative (DR) submitted that order of the Tribunal was received Pr. CIT on 11.08.2022 and therefore Miscellaneous Application filed on 03.02.2023 is well within the period of six month from the date when the order of the Tribunal came to the knowledge of the Department, as held by the Hon’ble Bom of Daryapur Shetkari ACIT [2021] 123 taxmann.com 301 (Bombay) Miscellaneous Application is admitted for adjudication. 2.1 The Ld. DR submitted that the Tribunal in its order the disallowance of Fund/Employee State Insurance charges (PF/ESIC) deposited/paid after due date under relevant Acts, following the decision of the Hon’ble Bombay High Court in the case of Transport Ltd. in Income Tax Appeal No. 1002 & 1034 of 2012 However, in view of the decision of the Hon’ble Supreme Court in M/s Sodexo India Services Pvt. Ltd. ORDER PER OM PRAKASH KANT, AM By way of this Miscellaneous Application, the seeking rectification /recall of the order dated 05.05.2020 passed by the Tribunal in ITA No. 2116/Mum/2021 for assessment year Before us, the Ld. Departmental Representative (DR) submitted that order of the Tribunal was received in the office of the Pr. CIT on 11.08.2022 and therefore Miscellaneous Application filed on 03.02.2023 is well within the period of six month from the date the order of the Tribunal came to the knowledge of the as held by the Hon’ble Bombay High Court in the case Shetkari Sahkari Ginning and Pressing Factory v. ACIT [2021] 123 taxmann.com 301 (Bombay) Miscellaneous Application is admitted for adjudication. The Ld. DR submitted that the Tribunal in its order the disallowance of employee’s contribution to Provident Fund/Employee State Insurance charges (PF/ESIC) deposited/paid after due date under relevant Acts, following the decision of the Hon’ble Bombay High Court in the case of CIT v. Ghatga Patil ransport Ltd. in Income Tax Appeal No. 1002 & 1034 of 2012 However, in view of the decision of the Hon’ble Supreme Court in M/s Sodexo India Services Pvt. Ltd. 2 M.A No. 131/Mum/2023 ITA No. 2116/Mum/2021 By way of this Miscellaneous Application, the Revenue is seeking rectification /recall of the order dated 05.05.2020 passed by the Tribunal in ITA No. 2116/Mum/2021 for assessment year Before us, the Ld. Departmental Representative (DR) in the office of the Pr. CIT on 11.08.2022 and therefore Miscellaneous Application filed on 03.02.2023 is well within the period of six month from the date the order of the Tribunal came to the knowledge of the bay High Court in the case Sahkari Ginning and Pressing Factory v. ACIT [2021] 123 taxmann.com 301 (Bombay). Accordingly, Miscellaneous Application is admitted for adjudication. The Ld. DR submitted that the Tribunal in its order allowed contribution to Provident Fund/Employee State Insurance charges (PF/ESIC) deposited/paid after due date under relevant Acts, following the decision of the CIT v. Ghatga Patil ransport Ltd. in Income Tax Appeal No. 1002 & 1034 of 2012. However, in view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. v. CIT in 143 taxmann.com 178 (SC) PF/ESI paid after due date this being a mistake need to be recalled and rectified. The Ld. Counsel did not object to said recall/rectification. Accordingly, the appeal of the assessee is recalled for hearing. 3. Since, both the parties agreed for hearing, the appeal heard. 3.1 In view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. (supra), the employees contribution to PF/ESI paid after due date under the relevant Act is not allowable as deduction u/s 36(1)(va) of the Act. Accordingly, the ground No. 1 of the appeal of the assessee is dismissed. 4. In the result, the allowed and appeal of the assessee is dismissed. Order pronounced in the open Court on Sd/ (RAHUL CHAUDHARY JUDICIAL MEMBER Mumbai; Dated: 30/06/2023 Rahul Sharma, Sr. P.S. M/s Sodexo India Services Pvt. Ltd. Checkmate Services Pvt. Ltd. v. CIT in 143 taxmann.com 178 (SC), the said employee’s contribution to due date under relevant Acts is not allowable this being a mistake of law in the order passed by the ITAT need to be recalled and rectified. The Ld. Counsel did not object to said recall/rectification. Accordingly, the appeal of the assessee is Since, both the parties agreed for hearing, the appeal decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. (supra), the employees contribution to PF/ESI paid after due date under the relevant Act is not allowable as deduction u/s 36(1)(va) of the Act. Accordingly, the 1 of the appeal of the assessee is dismissed. In the result, the miscellaneous application of the Revenue is appeal of the assessee is dismissed. nounced in the open Court on 30/06/2023. Sd/- RAHUL CHAUDHARY) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER M/s Sodexo India Services Pvt. Ltd. 3 M.A No. 131/Mum/2023 ITA No. 2116/Mum/2021 Checkmate Services Pvt. Ltd. v. CIT in 143 s contribution to is not allowable and law in the order passed by the ITAT, hence need to be recalled and rectified. The Ld. Counsel did not object to said recall/rectification. Accordingly, the appeal of the assessee is Since, both the parties agreed for hearing, the appeal was also decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. (supra), the employees contribution to PF/ESI paid after due date under the relevant Act is not allowable as deduction u/s 36(1)(va) of the Act. Accordingly, the 1 of the appeal of the assessee is dismissed. miscellaneous application of the Revenue is /06/2023. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// M/s Sodexo India Services Pvt. Ltd. Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai M/s Sodexo India Services Pvt. Ltd. 4 M.A No. 131/Mum/2023 ITA No. 2116/Mum/2021 BY ORDER, (Assistant Registrar) ITAT, Mumbai