DCIT, Circle 15(1)(1), Mumbai V. Antony Commercial Vehicle Private Limited, Navi Mumbai

MA 161/MUM/2023

AI Insights

The case involves a Miscellaneous Application filed by the Revenue under section 254(2) of the Income Tax Act, 1961, seeking rectification of a Tribunal order that had previously granted relief to the assessee regarding deductions for Employee's Contribution to PF/ESIC paid after the due date. The Tribunal, upon reviewing the Supreme Court's decision in Checkmate Services Pvt. Ltd. Vs. CIT, acknowledged the error in allowing such deductions and decided to recall the earlier order, setting the stage for a fresh hearing of the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133781 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-07-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 09-02-2023
• Other Referred Cases: Checkmate Services Pvt. Ltd. Vs. CIT, 143 taxmann.com 178
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

आयकर अपीलीय अिधकरण मुंबई पीठ “ए ”, मुंबई ŵी िवकास अव̾थी, Ɋाियक सद˟ एवं ŵी एस įरफौर रहमान, लेखाकार सद˟, के समƗ IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “A”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER एम.ए.सं. 161/मुं/2023 इन.आ.अ.सं.1704/मुं/2021 (िन.व.2018-19) M.A. NO.161/MUM/2023 in ITA No. 1704/MUM/2021 (A.Y.2018-19) The DCIT-15(1)(1) Room No. 451, 4 th Floor, Aayakar Bhavan, M.K. Road, Mumbai-400020. ...... ᮧाथᭅक/Applicant बनाम Vs. M/s Anthony Commercial Vehicles Pvt. Ltd. Office No.2, 1 st Floor, Ellora Plot No.27, Sector-11, CBD Belapur, Thane-400514. PAN: AAACE3421E ..... ᮧितवादी/Respondent ᮧाथᭅक ᳇ारा/ Applicant by : Sh. Majoj Kumar Sinha, Sr. DR ᮧितवादी ᳇ारा/Respondent by : None सुनवाई कᳱ ितिथ/ Date of hearing : 21/07/2023 घोषणा कᳱ ितिथ/ Date of pronouncement : 04/08/2023 आदेश/ ORDER PER VIKAS AWASTHY, J.M: This Miscellaneous Application (MA) has been filed by the Revenue under section 254(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) seeking rectification of the Tribunal order dated 10.05.2022 vide which appeal of the assessee in ITA No. 1704/Mum/2021 was decided. 2 एम.ए.सं. 161/मुं/2023 (िन.व.2018-19) M.A. NO.161/MUM/2023 (A.Y.2018-19) 2. Notice of MA for hearing fixed on 02.06.2023 was issued to the assessee/respondent through RPAD. The notice sent was not received back unserved, therefore, was deemed to be served. None appeared to represent the assessee. In the interest of justice fresh notice was issued to the assessee through RPAD, as well as through the office of Departmental Representative (DR) for 30.06.2023. The notice sent through RPAD was not received back unserved. No service report by DR was furnished. None appeared to represent the assessee. The appeal was adjourned to 07.07.2023 and fresh notice to assessee/respondent was issued through RPAD. Again on 07.07.2023 none appeared to represent the assessee. Once again notice to assessee for 21.07.2023 was issued through RPAD as well as through office of DR. Again there was no representation from assessee/respondent side. The notice sent through RPAD was delivered as the same was not received back unserved, the ld. DR furnished service report. As per service report dated 12.07.2023, the notice of hearing was served on the e-mail ID. of the assessee i.e. [e-mail] and [e-mail] As per delivery report placed on record by ld. DR, the message was successfully delivered to the destination e-mail Id. Despite service of notice, non-appeared to represent the assessee. It seems the assessee is not keen to defend the order. Therefore, this MA is taken up for hearing with the assistance of ld. DR and the material available on record. 3. The ld. DR submitted that the Tribunal has granted relief to the assessee in respect of employee’s Contribution to PF/ESIC paid after ‘due date’ as specified under the relevant Acts. He submitted that in the light of recent decision by the Hon’ble Supreme Court of India in the case of Checkmate Services Pvt. Ltd. Vs. CIT, 143 taxmann.com 178, there is a mistake in the order of Tribunal which requires rectification. 3 एम.ए.सं. 161/मुं/2023 (िन.व.2018-19) M.A. NO.161/MUM/2023 (A.Y.2018-19) 4. We have heard the submissions made by ld. DR. While deciding appeal of the assessee vide order dated 10.05.2022, the assessee’s claim of Employee’s share of Contribution to PF/ESIC paid after due date as specified under the relevant Acts was allowed. The Hon’ble Apex Court in Checkmate Services Pvt. Ltd. Vs. CIT (supra) in an unambiguous manner has explained that Employee’s share of Contribution to PF/ESIC deducted by the Employer at the time of payment of wages and deposited after the due date under the relevant Acts i.e. Provident Fund Act, 1952 and Employees State Insurance Act, 1948 is not an allowable deduction under section 36(1)(va) r.w.s. 2(24)(x) and section 43B of the Act. Thus, there is a mistake apparent on record that requires rectification. Consequently Tribunal order dated 10.05.2022 is recalled and the appeal of assessee is fixed for hearing afresh. The Registry is directed to fix the appeal in due course after notice to both the sides. 5. In the result, MA of the Revenue is allowed. Order pronounced in the open court on Friday, the 04 th day of August, 2023. Sd/- Sd/- (S RIFAUR RAHMAN) (VIKAS AWASTHY) लेखाकार सद᭭य/ACCOUNTANT MEMBER ᭠याियक सद᭭य/JUDICIAL MEMBER मुंबई/Mumbai, ᳰदनांक/Dated: 04/08/2023 SK, Sr.PS ᮧितिलिप अᮕेिषतCopy of the Order forwarded to : 1. अपीलाथᱮ/The Appellant , 2. ᮧितवादी/ The Respondent. 3. आयकर आयुᲦ(अ)/ The CIT(A)- 4. िवभागीय ᮧितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 5. गाडᭅ फाइल/Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai