Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, DELHI V. ENEL X SERVICES INDIA PRIVATE LIMITED, Mumbai

MA 16/MUM/2023

AI Insights

The case revolves around the dispute concerning the deduction of employee's contributions to PF/ESIC by M/s Enel X Services India Pvt. Ltd., which were deposited beyond the prescribed due date but before the due date of filing the income tax return. Initially, the ITAT had allowed the deduction based on precedents from the Bombay High Court. However, following a Supreme Court decision in Checkmate Services Pvt. Ltd., which clarified that such contributions must be deposited within the due dates prescribed by the respective laws to be eligible for deductions, the Tribunal recalled its earlier order and restored the matter to the assessing officer for re-evaluation.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130287 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-03-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 09-03-2023
• Assessment Year: misc
• Appeal Filed On: 09-01-2023
• Other Referred Cases: CIT Vs. Hindustan Organics Chemicals Ltd., Ghatge Patil Transport Ltd, Checkmate Services Pvt. Ltd.
• Laws Referred To: PF/ESIC Act, Sec. 43B of the Act, Sec. 139(1) of the Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 43B; 139(1)

Judgement Text

P a g e | 1 M.A. No. 16/Mum/2023 & ITA No. 422/Mum/2022 The DCIT, Circle 6(1)(1) Vs. M/s Enel X Services India Pvt Ltd. IN THE INCOME TAX APPELLATE TRIBUNAL “E” BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER M.A.16/Mum/2023 ITA No. 422/Mum/2022 (A.Y.2018-19) The DCIT, Circle-6(1)(1), Room No.563, 5 th Floor, Aayakar Bhavan, Mumbai Vs. M/s Enel X Services India Pvt. Ltd. A-G01, Marathon Chember, A-Wing, Lower Parel, Mumbai - 400030 स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AABCE3095K Appellant .. Respondent Appellant by : Samuel Pitta Respondent by : None Date of Hearing 10.03.2023 Date of Pronouncement 20.03.2023 आदेश / O R D E R Per Amarjit Singh (AM): By the miscellaneous application vide M.A. No. 16/Mum/2023 arising out of ITA No. 422/Mum/2018, the revenue seeks to recall the order of ITAT dated 15.07.2022 for the assessment year 2018-19. 2. Vide the aforesaid miscellaneous application the revenue submitted that the Tribunal vide ITA No. 422/Mum/2018 allowed the claim of the assessee with respect to deduction pertaining to the amount deposited towards Employee’s Contribution to PF/ESIC beyond the due date for payment as specified in PF/ESIC Act, but before filing the return of income following decision of Hon’ble jurisdictional High Court in the case of CIT Vs. Hindustan Organics Chemicals Ltd. (2014) 366 P a g e | 2 M.A. No. 16/Mum/2023 & ITA No. 422/Mum/2022 The DCIT, Circle 6(1)(1) Vs. M/s Enel X Services India Pvt Ltd. ITR 1 (Bom) and the decision in the case of Ghatge Patil Transport Ltd (2014) 36 ITR 249 (Bom). In this regard it is submitted that Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vide Civil Appeal No. 2833 of 2016 dated 12.10.2022 set at rest the entire controversy wherein it is held that employer’s have to deposit the employee’s contribution towards PF/ESIC on or before the due date prescribed under the respective Act for availing the deduction. Considering the decision of the Hon’ble Supreme Court as referred supra, we recall the order of the Tribunal as mentioned above and the same is adjudicated as below. ITA No.422/Mum/2022 3. The fact in brief is that assssee has deposited the employee’s contribution towards PF/ESIC to the government account beyond the due date prescribed in the PF/ESIC Act but before the due date of filing the return of income. The assessee has referred the decision of Hon’ble jurisdictional High Court in the case of Ghatge Patil Transport Ltd. (supra) and in the case of CIT Vs. Hindustan Organics Chemicals Ltd. (supra) wherein it was held that both, employee’s and employers contribution are covered under the amendment to Sec. 43B of the Act and the employee’s contribution to EPF/ESI are allowable if paid before the due date of filing of return of income u/s 139(1) of the Act. However, the case referred by the assessee are of no help in view of the judgment of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vide Civil Appeal No. 2833 of 2016 dated 12.10.2022. In this decision the Hon’ble Apex Court held that it is essential condition for the deduction that such amounts are deposited within the due date specified in the particular law. If the employer did not deposit the amount towards employee’s contribution on or before the due date as prescribed under the EPF/ESIC Acts, the assessee was not entitled to P a g e | 3 M.A. No. 16/Mum/2023 & ITA No. 422/Mum/2022 The DCIT, Circle 6(1)(1) Vs. M/s Enel X Services India Pvt Ltd. the deduction. Therefore, following the decision of Hon’ble Supreme Court we restore this issue to the file of the assessing officer for deciding afresh in accordance with the decision of Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vide Civil Appeal No. 2833 of 2016 dated 12.10.2022. Therefore, the appeal filed by the assessee treated as allowed for statistical purposes. 4. In the result, the miscellaneous application filed by the revenue is allowed and the appeal filed by the assessee is treated as allowed for statistical purposes. Order pronounced in the open court on 20.03.2023 Sd/- Sd/- (Pavan Kumar Gadale) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 20.03.2023 Rohit: PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai.