The Income Tax Officer, Ward-4(1)(1), Bangalore V. L & W Construction Private Limited, Bengaluru

MA 156/BANG/2023

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The case involves the Income-tax Officer, Ward-4(1)(1), Bangalore as the appellant and M/s L&W Construction Pvt. Ltd. as the respondent. The Revenue sought rectification of the Tribunal's order dated 20/07/2022, which had allowed the appeal of the assessee concerning the deduction of employees' contributions towards PF and ESI under section 36(1)(va) of the Income-tax Act, if paid before the due date under the respective Act. The Revenue's application for rectification was initially not signed and was filed late, leading to procedural challenges. The Tribunal dismissed the Revenue's petition due to these procedural lapses.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124863 (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: B
• Next Hearing Date: 24-08-2023
• Assessment Year: 2018-2019
• 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: SHEFALI SINGH
• Keywords: Condonation of delay
• Section: 139(1); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B’’ BENCH: BANGALORE BEFORE SHRI GEORGE GEORGE K, VICE PRESIDENT AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER M.P No.156/Bang/2023 [In ITA No.495/Bang/2022] Assessment year : 2018-19 The Income-tax Officer, Ward-4(1)(1), Bangalore, Vs. M/s L&W Construction Pvt. Ltd., #801, 8 th Floor, Pride Hulkul, No.116, Lalbagh Road, Bangalore-560 027. PAN – AABCL 1824 B APPELLANT RESPONDENT Assessee by : Shri S.V Ravishankar, Advocate Revenue by : Ms. Shefali Singh, JCIT(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 & miscellaneous application dated 11.08.2023 seeking rectification of the order dated 20/07/2022. 2. The revenue filed letter dated 25/01/2003 regarding filing of miscellaneous petition, which is received by the Registry on 30/01/2023. The Registry has pointed out that MP No.156/Bang/2023 Page 2 of 6 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 submitted that the Revenue filed an application dated 11.8.2023 along with miscellaneous petition stating that the miscellaneous petition was left unsigned inadvertently and therefore now filed praying for condonation of delay of 189 days. It is submitted that the original order dated 20/07/2022 of the Tribunal was received on 22/08/2022 and scrutiny reported submitted on 17.10.2022 and approval from PCIT was received on 13.1.2023 and miscellaneous petition filed on 25.1.2023 which is within the time and only the signed petition which was not filed inadvertently is filed on 11.8.2023. The miscellaneous petition filed on 11.8.2023 is in continuation of the petition filed on 30.1.2023. 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 MP No.156/Bang/2023 Page 3 of 6 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 revenue department has not filed miscellaneous petition, only a letter was field on 30/01/2023 which is a covering letter which cannot be considered as miscellaneous application filed within the due date as per the provisions of Income-tax Act 1961. The Miscellaneous application is filed on 11/08/2023 is beyond the due date, therefore, the miscellaneous application filed by the assessee is belated and liable to be dismissed. 5. After hearing both the sides and documents available before us, we note that the ACIT, OSD, Circle -4(1)(1) filed a covering letter on 30.1.2023 regarding filing of miscellaneous petition with enclosures which is stated as under:- MP No.156/Bang/2023 Page 4 of 6 MP No.156/Bang/2023 Page 5 of 6 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. The revenue has filed a letter dated 30.01.2023 without filing the miscellaneous petition in terms of Rule 34A(1). However the miscellaneous petition is filed by the assessee on 25.08.2023 (vide letter dated 11.08.2023) stating that the signed misc. petition was not filed inadvertently on 30.01.2023 and requesting for condonation of delay of 189 days. There is no provision for condonation of delay in filing Miscellaneous Petition u/s. 254(2) of the Act. 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 miscellaneous application filed by the revenue 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.156/Bang/2023 Page 6 of 6 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.