Assistant Director of Income Tax, CPC, Bengaluru V. Hipower Support Centre LLP, Bengaluru

MA 155/BANG/2023

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The case involves the Assistant Director of Income-tax (CPC), Bangalore, as the appellant, and Hipower Support Centre LLP, as the respondent. The Revenue sought to rectify an earlier Tribunal order that favored the assessee, which allowed deductions for employees' contributions towards PF and ESI paid before the due date of filing the return of income under section 139(1) of the Income-tax Act. The Revenue's argument was based on a Supreme Court decision that such contributions are only deductible if paid within the statutory deadlines. However, the Tribunal dismissed the Revenue's petition due to procedural deficiencies in filing the miscellaneous petition.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124541 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2023
• Appeal Filed By: Department
• Order Result: DismissedDismissed
• Bench Allotted: A
• Next Hearing Date: 24-08-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 29-01-2023
• Other Referred Cases: Checkmate Services Pvt. Ltd. Vs. CIT
• Laws Referred To: Income-tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISCHAL
• Assessee Lawyers: SUSHEN S
• Keywords: Period of limitation
• Section: 139(1); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A’’ BENCH: BANGALORE BEFORE SHRI GEORGE GEORGE K, VICE PRESIDENT AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER M.P No.155/Bang/2023 [In ITA No.103/Bang/2022] Assessment year : 2017-18 The Asst. Director of Income-tax (CPC), Bangalore. Vs. Hipower Support Centre LLP, 92/1B, Electronics City Phase 1, Konappana Agrahar, Bangalore-560 100. PAN – AAJFH 9654 E APPELLANT RESPONDENT Assessee by : Shri Sushen S, AR Revenue by : Dr. Nischal, Addl. CIT(DR) Date of hearing : 25.08.2023 Date of Pronouncement : 07.09.2023 O R D E R Per Laxmi Prasad Sahu, Accountant Member The Revenue has filed a covering letter dated 25.01.2023 seeking rectification of the order dated 13/05/2022, which is received by the Registry on 30/01/2023. The Registry has pointed out that Revenue has not filed miscellaneous petition and the case was fixed for hearing on 23/06/2023 and also on subsequent dates. During the course of hearing on 25/08/2023, ld. DR MP No.155/Bang/2023 Page 2 of 5 submitted that the letter filed on 30.01.2023 shall be treated as miscellaneous petition u/s 254 of the I T Act 1961. 3. The ld. DR further submitted that the Tribunal has allowed the appeal of the assessee by observing that the assessee paid PF/ESI employees contribution before filing the return of income u/s. 139(1) of the Act and hence allowed the appeal of the assessee. He submitted that the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd., Vs. CIT in Civil Appeal No.2833/2016 dated 12/10/2022 held that the employees contributions towards PF and ESI are deductible u/s 36(1)(va) of the Act if paid before the due date under the respective Act and otherwise not allowable. Therefore, he sought to rectify the order of the Tribunal in line with the Hon’ble Supreme Court judgment in the case of Checkmate Services cited supra. 4. The ld.AR of the assessee submitted that the department has not filed miscellaneous petition, but only a letter was filed on 30/01/2023 which is only a covering letter which cannot be considered as miscellaneous application filed within the due date as per the provisions of Income-tax Act 1961. therefore, the letter filed by the assessee cannot be treated as a miscellaneous petition and is liable to be dismissed. 5. After hearing both the sides and perusing the documents available before us, we note that the ACIT, OSD, Circle -4(1)(1) filed a covering letter on 30.01.2023 regarding filing of MP No.155/Bang/2023 Page 3 of 5 miscellaneous petition with enclosures which is stated as under:- MP No.155/Bang/2023 Page 4 of 5 6. The above covering letter filed by the revenue on 30/01/2023 did not enclose the miscellaneous application in terms of Rule 34A(1) of ITAT Rules, which reads as follows:- “34A (1) An application under section 254(2) of the Act shall clearly and concisely state the mistake apparent from the record of which the rectification is sought.” 7. Hence the covering letter dated 30.01.2023 filed by the revenue is without filing the miscellaneous petition in terms of Rule 34A(1). Accordingly we hold that the revenue has not filed miscellaneous petition within the period of limitation as per section 254(2) of the Act and hence the covering letter filed by the revenue for recall of the order of Tribunal based on the judgement of the Hon’ble Supreme Court cited supra is hereby rejected. 8. In the result, the miscellaneous petition filed by the Revenue is dismissed. Order pronounced in court on 7 th day of September, 2023. Sd/- Sd/- (GEORGE GEORGE K) (LAXMI PRASAD SAHU) Vice President Accountant Member Bangalore, Dated, 7 th September, 2023 / vms / MP No.155/Bang/2023 Page 5 of 5 Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. By order Asst. Registrar, ITAT, Bangalore.