DY.COMMISSIONER OF INCOME TAX-8(2) (1), MUMBAI V. SHUBH ARYA STEEL PVT. LTD, MUMBAI

MA 146/MUM/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0835 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-10-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-07-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 07-02-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order
• Section: 43B; 143(1); 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER MA No. 146/MUM/2023 (Arising out of ITA No. 1979/Mum/2021) (Assessment Year: 2018-19) Deputy Commissioner of Income Tax, Circle - 8(2)(1), Mumbai, Room No. 624, 6 th Floor, Aayakar Bhavan, Mumbai - 400020 ................ Appellant M/s Shubh Arya Steel Pvt. Ltd., 61/2, Lakri Bunder, Darrukhana, Mumbai - 400010 [PAN: AAECS7868R] Vs ................ Respondent Appearance For the Appellant/Department For the Respondent/Assessee : : Shri Prakash Choughule None Date Conclusion of hearing Pronouncement of order : : 14.07.2023 11.10.2023 O R D E R Per Rahul Chaudhary, Judicial Member: 1. The present Miscellaneous Application has been filed by the Revenue for rectification of order, dated 14/06/2022, passed by the Tribunal in ITA No. 1979/Mum/2021, pertaining to the Assessment Year 2018- 2019. 2. Vide order, dated 14/06/2022, passed in ITA No. 1979/Mum/2021, Ground No. 2 raised in appeal by the Assessee was allowed and the addition of INR 65,498/- made by the Assessing Officer, vide order/intimation, dated 16/10/2019, issued under Section 143(1) of MA No. 146/Mum/2023 Assessment Year: 2018-19 2 the Act on account deposits of Employees’ Contribution to Provident Fund and Employees’ State Insurance Corporation after lapse of time prescribed in the applicable statute was deleted since the aforesaid deposit, though delayed, were made before the due date of filing return specified under Section 139(1) of the Act. 3. Subsequently, in the case of Checkmate Services Private Ltd. v. CIT- 1:[2022] 448 ITR 518 (SC)[12-10-2022], the Hon’ble Supreme Court has held that where an assessee failed to deposit Employees' Contribution towards Provident Fund and Employees’ State Insurance within due date prescribed in respective statutes, deduction under Section 36(1)(va) of the Act was not allowable. The non-obstante clause contained in Section 43B of the Act would not apply in the case of employees’ contribution deducted from the salary of employees and held in trust by assessee-employer. Therefore, such assessee- employer would not be absolved from the liability to deposit employees’ contribution on or before the due date specified in the respective statutes as a pre-condition for claiming deduction under Section 36(1)(va) of the Act. In view of the above judgment of the Hon’ble Supreme Court in the case of Saurashtra Kutch Stock Exchange Ltd (supra), the law laid down by the Hon’ble Supreme Court in the case of Checkmate Services Private Ltd. (supra) shall apply retrospectively. A subsequent decision of the Hon’ble Supreme Court can validly form the basis for rectification under Section 254 of the Act in view of the judgment of the Hon’ble Supreme Court in the case of Assistant Commissioner of Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd.: 2008] 305 ITR 227 (SC) and the decisions of the Tribunal in the case of Kailashnath Malhotra Vs. Joint Commissioner of Income-tax, Special Range 56, Mumbai [2009] 34 SOT 541 (Mum.) (TM), and Assistant Commissioner of Income-tax Vs. MA No. 146/Mum/2023 Assessment Year: 2018-19 3 Hughes Services (FE) Pte. Ltd.: [2009] [2005] 93 ITD 77 (Delhi)(TM). The view taken by the Tribunal vide order dated, 14/06/2022, being contrary to view taken by the Hon’ble Supreme Court in the case of Checkmate Services Private Ltd. (supra) constitutes a mistake apparent on record. Accordingly, we allow the rectification application preferred by the Revenue. In view of the aforesaid, the order, dated 14/06/2022, is recalled for the limited purpose of adjudication of Ground No. 2 raised in the appeal. The registry is directed to list the appeal for hearing before the regular bench in due course after notice to both the parties. 4. In result, the Miscellaneous Application preferred by the Revenue is allowed. Order pronounced on 11.10.2023. Sd/- Sd/- (Amarjit Singh) Accountant Member (Rahul Chaudhary) Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 11.10.2023 Alindra, PS MA No. 146/Mum/2023 Assessment Year: 2018-19 4 आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त/ The CIT 4. प्रध न आयकर आय क्त / Pr.CIT 5. दिभ गीय प्रदिदनदध, आयकर अपीलीय अदधकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. आिेश न स र/ BY ORDER, सत्य दपि प्रदि //True Copy// उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदधकरण, म ुंबई / ITAT, Mumbai