Appeal details
Counselvise Citation
[2023] 140 COUNSELVISE.COM (IT) 124297 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
08-10-2023
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
17-08-2023
Assessment Year
2019-2020
Appeal Filed On
22-06-2023
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER M.P. Nos. 164 & 165/Bang/2023 (in ITA Nos. 102 & 103/Bang/2023) Assessment Years : 2018-19 & 2019-20 M/s. Sujanix Pvt. Ltd., No. 906, Mukund Vivek Paradise, Marathahalli Main Road, Munnekolala, Bangalore – 560 037. PAN: AAYCS1809G Vs. The Income Tax Officer, Ward – 4(2)(3), Bangalore. APPELLANT RESPONDENT Assessee by : Shri Sagar, CA Revenue by : Dr. Nischal, Addl. CIT (DR) Date of Hearing : 18-08-2023 Date of Pronouncement : 09-10-2023 ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present miscellaneous petitions are filed by the assessee against the consolidated order dated 26.04.2023. The Ld.AR submitted that, it is an ex-parte order and assessee was not heard before disposing of the appeal. 2. On the contrary, the Ld.DR submitted that the issue was squarely covered against assessee by virtue of the decision of Hon’ble Supreme Court in case of Checkmate Services (P.) Ltd. Vs Page 2 of 6 M.P. Nos. 164 & 165/Bang/2023 (in ITA Nos. 102 & 103/Bang/2023) CIT-1 reported in [2022] 143 taxmann.com 178 (SC) and therefore recalling of the order will not serve any purpose. It is submitted by the Ld.AR that assessee has made payments to the ESI & PF within the due date as per section 38 of the Employees Provident Fund Scheme, 1952. It is further submitted that there has been no violation by the assessee as per clause 38 of the Employees Provident Fund Scheme Act as the money has to be deposited into the relevant statutory fund within 15 days from the date on which the salary is paid to employee. The Ld.AR thus submitted that this aspect deserves verification. 2.1 On the contrary, the Ld.DR vehemently emphasized that this submission as advanced by the Ld.AR is an afterthought. It is submitted that, disallowance u/s. 36(1)(v)(a) is made in accordance with the declaration made by the assessee in the audit report. Referring to the audit report that was placed in the paper book, the Ld.DR submitted that there is admittedly delay as per Coln. 20(b) and therefore the disallowance has been rightly made in respect of such belated payment which is in consonance with the ratio laid down by Hon’ble Supreme Court. He thus supported the order passed by this Tribunal. 3. We have perused the submissions advanced by both sides in the light of records placed before us. 4. Admittedly, none had appeared at the time of hearing of appeal on 26.04.2023. Assessee/ Ld.AR were well informed about the date of hearing as noted from the order sheet entries. However considering the principles of natural justice, we adjudicate the argument now raised by assessee in the present miscellaneous Page 3 of 6 M.P. Nos. 164 & 165/Bang/2023 (in ITA Nos. 102 & 103/Bang/2023) petition. The contention now raised by the Ld.AR is that the due date of making payment to the relevant statutory funds are to be reckoned from the date of payment of the salary. 4.1 It is submitted by the Ld.AR that the assessee paid salary as per the chart placed at pages 104-105 of the paper book according to which the net salary payable for the month of April was paid in the month of May and therefore the due date to deposit PF will be 15 th June, 2017. 4.2 It is further submitted that the assessee deposited the employee contribution on 30 th of May which is within the due date specified under the ESI & PF Act. Similarly, it is submitted that in the subsequent months, the payment of salary was Page 4 of 6 M.P. Nos. 164 & 165/Bang/2023 (in ITA Nos. 102 & 103/Bang/2023) shifted to the next month and therefore the employees contribution towards PF & ESI has been deposited within the due date. It is submitted by the Ld.AR that at page 103, there is inadvertent error in filing Form 3CA by the auditor. For the sake of convenience, the same is reproduced as under: 4.3 Coming to the coln. 20(b) of the audit report, the actual due date for payment is recorded to be 15 th of May and the actual date of payment to the concerned department is recorded to be 30 th of May. Joint reading of all the above pages, the inadvertent mistake admitted by the Ld.AR and the subsequent chart showing the payment of salary having shifted to the next month does not support each other. This being the case had it to be a genuine situation wherein there was actually an inadvertent mistake, the same has not been brought to the notice of the Ld.AO in the 154 application that was filed by assessee on 06.11.2020. 4.4 Even before the Ld.CIT(A), the above arguments was never raised by the assessee though at that time, the Ld.CIT(A) also relied on the decision of Hon’ble Supreme Court in case of Checkmate Services (P.) Ltd. Vs CIT-1 (supra) to dismiss assessee’s claim. The intention of the argument now raised before the Page 5 of 6 M.P. Nos. 164 & 165/Bang/2023 (in ITA Nos. 102 & 103/Bang/2023) Tribunal is found to be malafide and an afterthought and therefore cannot be accepted. 4.5 We therefore do not find any mistake apparent on record for the argument of the assessee to be considered within the ambit of section 254(2) of the Act. 4.6 A Miscellaneous Petition under section 254(2) of the Income- tax Act, unless it can be said that there is a blatant and apparent mistake that has crept in, in the order of this Tribunal, purely based on material facts on record. In the grab of an application for rectification, it is not open to the Assessee to seek re-opening of the order of this Tribunal by rearguing the whole matter. Unless there is a manifest error which is obvious, clear and is evident, the provisions of section 254(2) of the Act cannot be resorted to. What can be rectified under section 254(2) is a mistake which is apparent and patent. The mistake has to be such for which no elaborate reasons or enquiry is necessary. 4.7 The powers conferred by the Statute under section 254(2) on the Tribunal are very limited and are circumscribed by the restrictions mentioned therein. In the case on hand, the Tribunal has passed its order purely based on facts and material produced before it which alone forms basis for the Tribunal to decide the issue. Whether the decision of the Tribunal is right or wrong is a different issue which cannot be agitated under section 254(2) of the Act. However, the fact remains that the Tribunal, after duly considering all aspects and applying its mind, has taken this conclusive view and this view though in the opinion of the Assessee is wrong, cannot be said to be a mistake apparent from Page 6 of 6 M.P. Nos. 164 & 165/Bang/2023 (in ITA Nos. 102 & 103/Bang/2023) record since the said view has been arrived at after due application of mind to the facts and circumstances of the case and the relevant material on record. 4.8 The order passed by this Tribunal u/s. 254(1) is held to be an effective order in sofar as the issue raised having regards to the details that were available on record. Accordingly, the miscellaneous petitions filed by the assessee for both the years stands dismissed. In the result, both the miscellaneous petitions filed by the assessee stands dismissed. Order pronounced in the open court on 09 th October, 2023. Sd/- Sd/- (CHANDRA POOJARI) (BEENA PILLAI) Accountant Member Judicial Member Bangalore, Dated, the 09 th October, 2023 /MS / Copy to: 1. Appellant 4. CIT(A) 2. Respondent 5. DR, ITAT, Bangalore 3. CIT 6. Guard file By order Assistant Registrar, ITAT, Bangalore
AI Insights
The case involves M/s. Sujanix Pvt. Ltd., the appellant, contesting a consolidated order regarding disallowances made for belated payments to ESI & PF contributions for the assessment years 2018-19 and 2019-20. The Tribunal had initially dismissed the appeals due to non-appearance of the assessee during the hearing. Upon filing miscellaneous petitions, the assessee argued that the payments were made within the due dates as per the Employees Provident Fund Scheme, 1952. However, the Revenue supported the original decision citing a Supreme Court precedent. The Tribunal found the assessee's new arguments to be an afterthought and not supported by the audit report or previous submissions, leading to the dismissal of the petitions.
