INCOME TAX OFFICER-WARD 34(2)(1) , MUMBAI V. KHUSHALRAO KESHAVRAO GARJE, MUMBAI

MA 260/MUM/2023

AI Insights

The case revolves around a Miscellaneous Application filed by the Income Tax Department seeking to recall an earlier Tribunal order that allowed deductions for Employees' contributions towards PF and ESI under section 36(1)(va) of the Income Tax Act, 1961. The recall was sought in light of a Supreme Court judgment which clarified that such contributions must be deposited before the due date as specified under respective laws to be eligible for deduction. The Tribunal, upon reviewing the Supreme Court's decision, acknowledged the error in its previous ruling and allowed the recall of the order, restoring the appeal to its original number for re-hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 136049 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 15-06-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 27-03-2023
• Other Referred Cases: Checkmate Services India (Pvt.) Ltd. vs. CIT, 448 ITR 518(SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

म ु ंबई ठ “एच ”, म ु ंबई ब . ब , ेख एवं व व ! , " # े म$ IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “ H ”, MUMBAI BEFORE SHRI B.R.BASKARAN , ACCOUNTANT MEMBER & SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.A NO.260/MUM/2023 [ Arising out of ITA NO.1866/MUM/2022 (A.Y.2017-18)] ITO Ward 34(2)-(1). 215, Kautilya Bhavan, BKC, Bandra East, Mumbai – 400 051 ...... % !& /Applicant बन म Vs. Khushalrao Keshavrao Garje, 101, Harmony Apartments, St.Francis Road, Vile Parle (West), Mumbai – 400 056. PAN:AIWPG-2557-L ..... %#)व /Respondent % !& *व / Applicant by : Ms. Mahita Nair, Sr.AR %#)व *व /Respondent by : Shri Ruturaj H. Gurjar ु नव ई + #) !/ Date of hearing : 16/06/2023 ,-. + #) !/ Date of pronouncement : 07/07/2023 आदेश/ ORDER PER VIKAS AWASTHY, JM: This Miscellaneous Application has been filed by the Revenue u/s. 254(2) of the Income Tax Act, 1961 [in short ‘the Act’] for recalling Tribunal order dated 10/08/2022 vide which the claim of the assessee in respect of 2 M.A NO.260/MUM/2023 [ Arising out of ITA NO.1866/MUM/2022 (A.Y.2017-18)] Employees Contribution towards PF and ESI was allowed as deduction u/s. 36(1)(va) of the Act. 2. Ms. Mahita Nair representing the Department submitted that the Tribunal order dated 10/08/2022 requires rectification/recall in the light of judgment passed by the Hon'ble Supreme Court in the case of Checkmate Services India (Pvt.) Ltd. vs. CIT, 448 ITR 518(SC). 3. Per contra, Shri Ruturaj H. Gurjar Appearing on behalf of the assessee opposed the Miscellaneous Application field by the Department and submitted that the order of the Tribunal is in line with the law expounded by the Hon’ble Jurisdictional High Court as was applicable at the time of passing of the order. 4. Both sides heard. The issue regarding allowability of Employees share of contribution towards PF and ESI after the “due date” as specified under the respective laws has been laid to rest by Hon'ble Apex Court in the case of Checkmate Services India (Pvt.) Ltd. vs. CIT (supra). The Hon'ble Apex Court in an unambiguous manner has explained that the law has always been that Employees share of contribution towards PF and ESI is to be deposited before the “due date” as explained under the respective laws. The said contribution made after due date under the respective laws is not an allowable deduction u/s. 36(1)(va) of the Act. Thus, in view of the settled legal position we find that an error has crept in the order of Tribunal dated 10/08/2022. Accordingly, the same is recalled and the appeal is restored to its original number. The Registry is directed to fix the appeal for hearing in due course after notice to both sides. 3 M.A NO.260/MUM/2023 [ Arising out of ITA NO.1866/MUM/2022 (A.Y.2017-18)] 5. In the result, Miscellaneous Application filed by the Revenue is allowed. Order pronounced in the open Court on Friday the 07 th day of July,2023. Sd/- Sd/- (B.R. BASKARAN) (VIKAS AWASTHY) ेख /ACCOUNTANT MEMBER " # /JUDICIAL MEMBER म ु ंबई/ Mumbai, / न ं /Dated 07/07/2023 Vm, Sr. PS(O/S) े Copy of the Order forwarded to : 1. !&/The Appellant , 2. %#)व / The Respondent. 3. ु 0)( )/ The CIT(A)- 4. ु 0) CIT 5. व3 4 %#)#न , . . ., म ु बंई/DR, ITAT, Mumbai 6. 4 56 7 8 /Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai