ASSISTANT COMMISSIONER OF INCOME TAX-4(2)(1), MUMBAI V. NIRMAL BANG SECURITIES PVT LTD, MUMBAI

MA 302/MUM/2023

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This case involves a Miscellaneous Application by the revenue against the Tribunal's earlier decision which allowed the deduction claim of M/s. Nirmal Bang Securities Pvt. Ltd. for employee's contributions to PF/ESIC that were deposited after the statutory due dates but before the due date for filing the income tax return. The Tribunal's earlier decision was contested based on a Supreme Court ruling which mandated strict adherence to the statutory deadlines for such contributions to qualify for deductions under section 36(1)(va) of the Income Tax Act. The Tribunal admitted the MA, recalling the earlier order and restoring the appeal for re-examination in light of the Supreme Court's decision.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 125107 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-08-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 12-04-2023
• Other Referred Cases: Daryapur Shetkari Sahakari Ginning and Pressing Factory v. ACIT, Checkmate Services Pvt. Ltd. Vs. CIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order
• Section: 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI BR BASKARAN, AM AND SHRI ABY T. VARKEY, JM MA. No. 302/Mum/2023 (Arising out of ITA. No.1858/Mum/2022 (निर्धारण वर्ा / Assessment Year: 2018-19) ACIT-4(2)(1) Room No. 640/642, Aayakar Bhavan, M. K. Road, Mumbai-400020. बिधम/ Vs. M/s. Nirmal Bang Securities Pvt. Ltd. 301/302, B-2, Marathon Innova Opp. Peninsula Building, Ganpatrao Kadam Marg, Lower Parel (W), Mumbai- 400013. स्थधयी लेखध सं./जीआइआर सं./PAN/GIR No. : AAACN7369L (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) सुनवाई की तारीख / Date of Hearing: 11/08/2023 घोषणा की तारीख /Date of Pronouncement: 11/08/2023 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.1858/Mum/2022 dated 23.09.2022 for AY. 2018-19. 2. The revenue submitted that Tribunal in ITA No. 1858/Mum/2022 for AY. 2018-19 has allowed the claim of the assessee with respect to deduction pertaining to amount deposited in the relevant fund towards Employee’s contribution to PF/ESIC beyond the due date for payment as specified in the PE/ESIC Act, but paid before the due date of filing return of income u/s 139(1) of the Act. And the Department has preferred this MA against the impugned action of Tribunal. At the outset, it is noted that the Department received the impugned order of Tribunal on 14.12.2022 as evident from the date stamp affixed on the copy of impugned order of this Assessee by: Shri Anant N. Pai Revenue by: Ms. Mahita Nair MA. No.302/Mum/2023 A.Y. 2018-19 M/s. Nirmal Bang Securities Pvt. Ltd. 2 Tribunal, and since there is no other evidence to take a contrary view regarding date of receipt of impugned order, we note that Department has filed the miscellaneous application in this registry on 13.04.2023 which is within six (6) months of receipt of the impugned order of the Tribunal, so we admit the MA being filed within the limitation period, and for doing that, we rely on decision of Hon’ble Bombay High Court in the case of Daryapur Shetkari Sahakari Ginning and Pressing Factory v. ACIT [2021] 123 taxmann.com 301 (Bombay). Proceeding further, we note that MA has been preferred to recall the impugned order in the light of Hon’ble Supreme Court decision in the case of Checkmate Services Pvt. Ltd. Vs. CIT-1448 ITR 518 which has set at rest the controversy wherein it was held that employer/assessee’s have to deposit the employee’s contribution towards PF/ESIC on or before the due date prescribed in the respective law [PF/ESIC Acts] for availing the deduction u/s 36(1)(va) of the Act. Considering the decision of Hon’ble Supreme Court as referred above, and the fact and issue involved in our impugned order, we recall the impugned order passed in the appeal and restore the appeal for fresh adjudication. 3. In the light of the above discussion, we direct the registry to fix the appeal for hearing on 14.09.2023. 4. In the result, Miscellaneous application filed by the revenue is allowed. Order pronounced in the open court on this 14/08/2023. Sd/- Sd/- (BR BASKARAN) (ABY T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER मुुंबई Mumbai; दिनाुंक Dated : 11/08/2023. Vijay Pal Singh, (Sr. PS) MA. No.302/Mum/2023 A.Y. 2018-19 M/s. Nirmal Bang Securities Pvt. Ltd. 3 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.