INCOME TAX OFFICER WARD-15(2)(1), MUMBAI V. M/S. INTELLECT BIZWARE SERVICES PVT. LTD, MUMBAI

MA 154/MUM/2023

AI Insights

The case involves the Income Tax Officer, Mumbai, as the appellant, and M/s Intellect Bizware Services Pvt. Ltd., as the respondent. The Revenue filed a Miscellaneous Application seeking recall/rectification of the Tribunal's order dated 28.04.2022 concerning the assessment year 2017-18. The original dispute centered on the deductibility of employee contributions to PF/ESI paid after the due date, which the Tribunal had allowed based on a decision from the Bombay High Court. However, the Supreme Court's decision in Checkmate Services Pvt. Ltd. contradicted this, leading the Revenue to file the Miscellaneous Application. The Tribunal admitted the application, recognizing a mistake apparent from the record due to the Supreme Court's ruling, and recalled its earlier order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123265 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-06-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-05-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 08-02-2023
• Other Referred Cases: Pressing Factory v. ACIT, CIT v. Ghatga Patil Transport Ltd., Checkmate Services Pvt. Ltd. v. CIT, Salasar Pvt. Ltd. v. ITA No. 1947/Mum/2012
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAHUL CHAUDHARY (JUDICIAL MEMBER) M.A. No. 154/MUM/2023 (Arising out of ITA No. 1935/MUM/2021) Assessment Year: 2017-2018 Income Tax Officer Wd 15(2)(1), 204, 2 nd floor, Aayakar Bhavan, M.K. Road, Mumbai-20. Vs. M/s Intellect Bizware Services Pvt. Ltd., Technocity, 6 th floor, Plot No. X-5/3, Opp. MBP Mahape Road, MIDC, Navi Mumbai-400701. PAN No. AACCI 1519 B Appellant Respondent Assessee by : None Revenue by : Ms. Richa Gulati, DR Date of Hearing : 26/05/2023 Date of pronouncement : 19/06/2023 ORDER PER OM PRAKASH KANT, AM By way of this Miscellaneous Application, the Revenue is seeking recall/rectification of the order of the Tribunal dated 28.04.2022 passed in ITA No. 1935/Mum/2021 for assessment year 2017-18. 2. Before us, none appeared on behalf of the assessee despite notifying the assessee through the Department on 04.05.2023 and also service of notice through speed post. In view of non compliance, we were in responding the Miscellaneous Application and therefore same was heard ex-parte Tribunal was received by the Pr. CIT on 01.08.2022 Miscellaneous Application filed by the Revenue on 09.02.2022 is held to be within limitation period, month from the end of the month to the knowledge of the Revenue High Court in the case of Pressing Factory v. ACIT [2021] 123 taxmann.com 301 (Bombay). Therefore, this Miscellaneous Application of the Revenue is admitted for adjudication. 3. We have heard the submission of the Ld. Departmental Representative (DR). We find that the issue of deposit of contribution to ESI/PF after the due date pre Act, was allowed by the Tribunal in favour of the assessee of the decision of the Hon’ble Bombay High Court in the case of CIT v. Ghatga Patil Transport Ltd. in Income Tax Appeal No. 1002 & 1034 of 2012. Before us, the Ld. decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. in 143 taxmann.com 178, the employee contribution to PF/ESI paid after due date prescribed under relevant Act is not allowable u/s 36(1)(va M/s Intellect Bizware vice of notice through speed post. In view of non of the opinion that assessee was in responding the Miscellaneous Application and therefore same qua the assessee. Since, the order of the eceived by the Pr. CIT on 01.08.2022 Miscellaneous Application filed by the Revenue on 09.02.2022 is held to be within limitation period, being within the period of onth from the end of the month in which the order knowledge of the Revenue, as held by the Hon’ble Bombay High Court in the case of DaryapurShetkariSahkari Ginning and Pressing Factory v. ACIT [2021] 123 taxmann.com 301 erefore, this Miscellaneous Application of the Revenue is admitted for adjudication. We have heard the submission of the Ld. Departmental Representative (DR). We find that the issue of deposit of ESI/PF after the due date prescribed under relevant was allowed by the Tribunal in favour of the assessee of the decision of the Hon’ble Bombay High Court in the case of CIT v. Ghatga Patil Transport Ltd. in Income Tax Appeal No. 1002 & 1034 of 2012. Before us, the Ld. DR submitted that in view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. in 143 taxmann.com 178, the employee contribution to PF/ESI paid after due date prescribed under relevant Act is not allowable u/s 36(1)(va) of the Act. Since, the M/s Intellect Bizware Services Pvt. Ltd. 2 M.A No. 154/Mum/2023 vice of notice through speed post. In view of non- was not interested in responding the Miscellaneous Application and therefore same qua the assessee. Since, the order of the eceived by the Pr. CIT on 01.08.2022, therefore, the Miscellaneous Application filed by the Revenue on 09.02.2022 is within the period of six n which the order of ITAT came as held by the Hon’ble Bombay DaryapurShetkariSahkari Ginning and Pressing Factory v. ACIT [2021] 123 taxmann.com 301 erefore, this Miscellaneous Application of the Revenue We have heard the submission of the Ld. Departmental Representative (DR). We find that the issue of deposit of employee’s scribed under relevant was allowed by the Tribunal in favour of the assessee , in view of the decision of the Hon’ble Bombay High Court in the case of CIT v. Ghatga Patil Transport Ltd. in Income Tax Appeal No. 1002 & DR submitted that in view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. in 143 taxmann.com 178, the employee’s contribution to PF/ESI paid after due date prescribed under ) of the Act. Since, the decision of the Hon’ble Supreme Court operates from the date on which the relevant provisions of section 36(1)(va) of the Act has been introduced in the Income a mistake of law in the order of on the decision of the Tribunal in the case of Salasar Pvt. Ltd. in ITA No. 1947/Mum/2012 for assessment year 2018 the Tribunal has held that the claim of employee PF/ESI paid after due dat claim and therefore liable to be disallowed u/s 143(1) of the Act. 3.1 In view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. (supra) that there is a mistake apparent from record in the order of the Tribunal and therefore we feel it appropriate to recall the order of the Tribunal and direct the Registry to fix for hearing as per Rules. 4. In the result, the Miscellaneous Application of the Revenue i allowed. Order pronounced in the open Court on Sd/ (RAHUL CHAUDHARY JUDICIAL MEMBER Mumbai; Dated: 19/06/2023 Rahul Sharma, Sr. P.S. M/s Intellect Bizware decision of the Hon’ble Supreme Court operates from the date on which the relevant provisions of section 36(1)(va) of the Act has in the Income-tax Act, 1961 and therefore, there is a mistake of law in the order of the Tribunal. The Ld. on the decision of the Tribunal in the case of Salasar Pvt. Ltd. in ITA No. 1947/Mum/2012 for assessment year 2018 the Tribunal has held that the claim of employee’s contribution to PF/ESI paid after due date under the relevant Act is also incorrect claim and therefore liable to be disallowed u/s 143(1) of the Act. In view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. (supra), we are of the opinion a mistake apparent from record in the order of the Tribunal and therefore we feel it appropriate to recall the order of the Tribunal and direct the Registry to fix for hearing as per Rules. In the result, the Miscellaneous Application of the Revenue i nounced in the open Court on 19/06/2023. Sd/- RAHUL CHAUDHARY) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER M/s Intellect Bizware Services Pvt. Ltd. 3 M.A No. 154/Mum/2023 decision of the Hon’ble Supreme Court operates from the date on which the relevant provisions of section 36(1)(va) of the Act has and therefore, there is the Tribunal. The Ld. DR also relied on the decision of the Tribunal in the case of Salasar Pvt. Ltd. in ITA No. 1947/Mum/2012 for assessment year 2018-19, wherein s contribution to e under the relevant Act is also incorrect claim and therefore liable to be disallowed u/s 143(1) of the Act. In view of the decision of the Hon’ble Supreme Court in the we are of the opinion a mistake apparent from record in the order of the Tribunal and therefore we feel it appropriate to recall the order of the Tribunal and direct the Registry to fix for hearing as per Rules. In the result, the 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 Intellect Bizware Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai M/s Intellect Bizware Services Pvt. Ltd. 4 M.A No. 154/Mum/2023 BY ORDER, (Assistant Registrar) ITAT, Mumbai