ITO-12(3)(1), MUMBAI V. M/S JAGDAMBA SERVICE SOLUTION PRIVATE LIMITED, MUMBAI

MA 223/MUM/2023

AI Insights

This case involves a Miscellaneous Application by the revenue against the Tribunal's earlier decision which had allowed the assessee's cross-objection and deleted a disallowance of Rs.6,50,16,753. The disallowance was initially confirmed by the CIT(A) and pertained to the non-deposit of employee's/employer's contributions to PF/ESIC within the prescribed due dates. The Tribunal's earlier decision was challenged based on the Supreme Court's ruling in Checkmate Services Pvt. Ltd. Vs. CIT-1, which clarified the disallowance under section 36(1)(va) of the Income Tax Act for delayed deposits of such contributions. The Tribunal, acknowledging the receipt of the application within the stipulated six months and the legal precedent, decided to recall the earlier order and restore the appeal and cross-objection.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299226 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-08-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 15-06-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 01-03-2023
• Other Referred Cases: Checkmate Services Pvt. Ltd. Vs. CIT-1(448 ITR 518), Daryapur Shetkari Sahakari Ginning and Pressing Factory v. ACIT [2021] 123 taxmann.com 301 (Bombay)
• Laws Referred To: Income Tax Act, 1961, Indian Evidence Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI ABY T. VARKEY, JM AND SHRI AMARJIT SINGH, AM MA. No. 223/Mum/2023 (Arising out of ITA. No.7041/Mum/2022 (निर्धारण वर्ा / Assessment Year: 2019-20) ITO-12(3)(1) Room No. 145, 1 st Floor, Aayakar Bhavan, M. K. Road, Mumbai-400020. बिधम/ Vs. M/s. Jagdamba Services Solution Pvt. Ltd. 1005, Corporate Annexe Near Udyog Bhavan, Sonawala Lane, Goregaon (E), Mumbai- 400063. स्थधयी लेखध सं./जीआइआर सं./PAN/GIR No. : AADCJ0686K (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) सुनवाई की तारीख / Date of Hearing: 16/06/2023 घोषणा की तारीख /Date of Pronouncement: 16/08/2023 आदेश / O R D E R PER ABY T. VARKEY, JM: This is a Miscellaneous application preferred by the revenue against the order of this Tribunal in ITA. No.7041/Mum/2022 dated 20.07.2022. 2. At the outset, the Ld. DR brought to our notice even though the impugned order has been passed vide order dated 20.07.2022, however, the department received the order of the Tribunal only on 23.11.2022; and in order to prima facie prove that it received the impugned order only on 23.11.2022, he drew our attention to the copy of Tribunal’s order department received, and especially to the first (caption page) wherein it is noticed that date stamp of department (office of the Principal Commissioner of Income Tax-4) wherein date Assessee by: Shri Anusij S. Nair Revenue by: Shri Soumendu Kumar Dash (Sr. AR) MA. No.223/Mum/2023 A.Y. 2019-20 M/s. Jagdamba Services Solution Pvt. Ltd. 2 is depicted as 23.11.2022. Therefore, it is presumed that the office of the PCIT received the impugned order on 23.11.2022. In the absence of any other evidence to show that department received the impugned order before that date, we presume the fact that department received the impugned order only on 23.11.2022, and for that rely on section 114 of the Indian Evidence Act. And further we note that the department has filed the miscellaneous application on 02.03.2023 i.e, within six (6) months of receipt of the impugned order of the Tribunal (Refer Hon’ble Bombay High Court in the case of Daryapur Shetkari Sahakari Ginning and Pressing Factory v. ACIT [2021] 123 taxmann.com 301 (Bombay). And proceed to dispose of the miscellaneous application. The main grievance of the revenue is against the action of the Tribunal allowing the cross-objection filed by the assessee by deleting the disallowance confirmed by Ld. CIT(A) upholding the action of CPC u/s 143(1) of the Income Tax Act, 1961 (hereinafter “the Act’) disallowing an amount of Rs.6,50,16,753/- for not depositing the employee’s/employer’s contribution to PF/ESIC before the due date prescribed under the respective PF/ESIC Act. However, since the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT-1(448 ITR 518) has held that in case if assessee/employer fails to deposit the employee’s contribution of PF/ESIC in the relevant account within the due date as prescribed under PF/ESIC Act, then it need to be disallowed u/s 36(1)(va) of the Act. Therefore, we recall the impugned order of Tribunal dated 20.07.2022 and consequently restore both the appeal and the Cross- MA. No.223/Mum/2023 A.Y. 2019-20 M/s. Jagdamba Services Solution Pvt. Ltd. 3 objection filed by the department and assessee for AY. 2019-20. Thus, ITA. No.7041/Mum/2022 & CO. No. 80/Mum/2022 are restored. 3. In the result, Miscellaneous application filed by the revenue is allowed. Order pronounced in the open court on this 16/08/2023. Sd/- Sd/- (AMARJIT SINGH) (ABY T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER मुुंबई Mumbai; दिनाुंक Dated : 16/08/2023. Vijay Pal Singh, (Sr. PS) आदेश की प्रनिनलनि अग्रेनर्ि/Copy of the Order forwarded to : आदेशधिुसधर/ BY ORDER, सत्यादपत प्रदत //True Copy// उि/सहधयक िंजीकधर /(Dy./Asstt. Registrar) आयकर अिीलीय अनर्करण, मुुंबई / ITAT, Mumbai 1. अपीलार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 4. आयकर आयुक्त / CIT 5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, मुुंबई / DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file.