The Residency Club, Kolhapur V. Assistant Commissioner of Income-tax, Circle - 2, , Kolhapur

MA 136/PUN/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 1115 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-03-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2019-2020
• Appeal Filed On: 05-06-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R.Y. BALAWADE
• Assessee Lawyers: ANNASAHEB NAIK; VIRTUE OF CERTAIN JUDGMENTS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE “B” BENCH : PUNE [THROUGH VIRTUAL HEARING] BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER M.A.No.136/PUN./2023 Arising out of I.T.A.No.137/PUN./2022 - Assessment Year 2019-2020 The Residency Club, Near New Palace Post office, Kolhapur – 416 003 PAN AAATT8533D vs. The ACIT, CPC, Bangalore. (Applicant) (Respondent) For Assessee : Shri Annasaheb Naik For Revenue : Shri R.Y. Balawade, Addl.CIT Date of Hearing : 15.03.2024 Date of Pronouncement : 19.03.2024 ORDER PER DR. DIPAK P. RIPOTE, A.M. : This assessee’s miscellaneous application M.A.No.136/PUN./2023 filed u/s.254(2) of the of the Income Tax Act, 1961 (in short "the Act"), seeks to recall/rectify our order dated 08.12.2022 dismissing assessee’s main appeal ITA.No.137/PUN./2022 for assessment year 2019-2020 Heard both the parties. Case file perused. 2. It emerges at the outset that this tribunal’s impugned order dated 08.12.2022 has allowed learned lower authorities action invoking sec.sec.36(1)(va) of the Act disallowing a sum of Rs.20,41,992/- on account of assessee’s 2 MA.No.136/PUN./2023 failure in not having paid/remitted the corresponding dues of employee’s contribution towards ESI & PF within the time allowed as per the respective Act. There would hardly be any dispute that the hon’ble apex court’s recent landmark decision in Checkmate Services P. Ltd. & Ors. vs. CIT & Ors. (2022) 448 ITR 518 (SC) has settled the law that such a disallowance is very much warranted as the concerned assessee has to remit the same before the due date under the corresponding statue(s). That being the case, we find that there is no apparent mistake on record to recall our impugned order dated 08.12.2022 by invoking sec.254(2) of the Act. 3. Coupled with this tribunal’s recent order in M.A.No.50/PUN./2023 in ITA.No.405/Pun./2021 dated 04.08.2023 DCIT vs. Shankar Morappa & Co. Pune has already accepted the Revenue’s very contentions as under : “2. The facts of the case are that the Assessing Officer (AO) made disallowance of Rs.10,54,797/- in the intimation u/s.143(1) of the Act on the ground that the assessee deposited the Employees’ share of EPF and ESI etc. belatedly. The Tribunal in its order u/s.254(1) observed that the Employees’ share was deposited prior to the due date of filing return u/s.139(1) and hence deduction was allowable under section 36(1)(va) of the Act. In reaching this 3 MA.No.136/PUN./2023 conclusion, the Tribunal relied on the judgment of Hon’ble Himachal Pradesh High Court in CIT Vs. Nipso polyfabriks Ltd. (2013) 350 ITR 327 (HP). 3. The Revenue has moved the instant Miscellaneous Application urging that the view taken by the Hon’ble Himachal Pradesh High Court in Nipso polyfabriks Ltd. has since been overruled by the Hon’ble Supreme Court in Checkmate Services P. Ltd. & Ors. VS. CIT & Ors. (2022) 448 ITR 518 (SC), holding that the deduction of the Employees’ share can be allowed u/s.36(1)(va) only if it is deposited before the time limit under the respective statutes and not by the due date u/s.139(1) of the Act. It was, thus, urged by the ld. DR that the order earlier passed by the Tribunal granting the deduction, required rectification. No serious objection was taken by the ld. AR to the grievance of the Revenue. 4. We have heard the rival submissions and perused the relevant material on record. There is no dispute on the fact the law prevalent at that time of passing the order u/s.254(1) was in favour of the assessee by virtue of certain judgments, including Nipso polyfabriks Ltd., granting deduction u/s.36(1)(va) of the employees’ share of EPF etc. even if the 4 MA.No.136/PUN./2023 deposit was made after the due date under respective Acts but before the time limit provided for filing the return u/s.139(1) of the Act. Such favourable view has since been reversed by the Hon’ble Supreme Court in the case of Checkmate Services P. Ltd.(SC). In view of the latest judgment of the Hon’ble Supreme Court, which is binding under Article 141 of the Constitution, the benefit of deduction allowed by the Tribunal in its order u/s 254(1), requires rectification. Making necessary rectification, we hold that the disallowance made by the AO has to be sustained. It is ordered accordingly. 5. In the result, the Miscellaneous Application is allowed.” 4. It is further indeed coupled with the fact that neither the assessee’s instant miscellaneous application has not been signed by himself nor had been signed at his behest. The same also deserves to be rejected on this clinching aspect as well. 5. In view of the above, we dismiss the assessee’s instant miscellaneous application M.A.No.136/PUN./2023 in above terms. Ordered accordingly. 5 MA.No.136/PUN./2023 Order pronounced in the open Court on 19.03.2024. Sd/- Sd/- [SATBEER SINGH GODARA] [DR. DIPAK P. RIPOTE] JUDICIAL MEMBER ACCOUNTANT MEMBER Pune, Dated 19 th March, 2024 VBP/- Copy to 1. The applicant 2. The respondent 3. The CIT(A), Pune concerned. 4. The Pr. CIT, Pune concerned. 4. D.R. ITAT, Pune “B” Bench, Pune. 5. Guard File. //By Order// //True Copy // Assistant Registrar, ITAT, Pune Benches, Pune.