Dy. Commissioner of Income Tax, Circle 14(1)(1), Mumbai, Mumbai V. Neelkanth Mansions and Infrastructure Private Limited, Mumbai

MA 333/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5720 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-07-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 24-04-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, AM AND SHRI PRASHANT MAHARISHI, AM M.A. No. 333/MUM/2023 [Arising out of ITA No.1938/MUM/2021] Assessment Year: 2018-19 The Dy. Commissioner of Income Tax – 14(1)(A) Mumbai v. Neelkanth Mansions and Infrastructure Pvt. Limited 5 th Floor, fine House, Anandji Lane M.G. Road, Mumbai (Applicant) (Respondent) ITA No.1938/MUM/2021 Assessment Year: 2018-19 Neelkanth Mansions and Infrastructure Pvt. Limited 5 th Floor, fine House, Anandji Lane M.G. Road, Mumbai v. The Dy. Commissioner of Income Tax – 14(1)(A) Mumbai (Appellant) (Respondent) PAN No.AAACN1245R Assessee by: Shri Gyaneshwar Kataram, C.A. Revenue by: Ms. Mahita Nair, D.R. O R D E R PER PRASHANT MAHARISHI, AM: Page 2 of 4 M.A. No. 333/MUM/2023 & ITA No.1938/MUM/2021 Neelkanth Mansions and Infrastructure Pvt. Limited 01. This Miscellaneous Application is filed by the Dy. Commissioner of Income Tax 14(1)(1), Mumbai (Learned Assessing Officer) stating that the order passed by the ITAT in the case of the assessee in ITA No.1938/MUM/2021 for assessment year 2018-19, dated 28/4/2022, allowing the claim of the assessee of Rs.1,89,235/- being the employer’s contribution to PF and Rs.70,435/- being the employee’s contribution to ESIC Scheme suffers from mistake in view of the decision of Honourable supreme court in case of Checkmate services Pvt Ltd [2022] 143 taxmann.com 178 (SC)/[2023] 290 Taxman 19 (SC) where in it has been held that employees’ contribution of ESIC is paid beyond due date of ESIC enactment is not allowable. 02. On a careful reading of the decision, we find that the Revenue is aggrieved by the allowance of employee’s contribution to ESIC deposited beyond the due date prescribed under the respective law in view of decision of Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vs. CIT in Civil Appeal No.2833. 03. On hearing the parties, we find that according to the decision of Honourable Supreme court, above deduction is not allowable. In view of this, we recall the order of the Tribunal dated 28/4/2022 to the extent of apparent error in allowing the claim of employee’s contribution of ESIC of Rs.70,435/-. Therefore, the MA filed by the Assessing Officer is allowed to that extent. Page 3 of 4 M.A. No. 333/MUM/2023 & ITA No.1938/MUM/2021 Neelkanth Mansions and Infrastructure Pvt. Limited 04. As the issue involved in the appeal filed by the assessee is clearly covered against the assessee by the decision of the Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vs. CIT (supra) as we find that ESIC contribution of Rs 70435/- is disallowable as undisputedly same is deposited beyond due dates prescribed under the respective ESIC enactments. Accordingly, out of the total disallowance of Rs 259670/- disallowance of Rs 70435/- is sustained. Ground no 1 of the appeal of Assessee is allowed partly. Ground no 2 of the appeal is dismissed. 05. Ground no 3 to 6 of the appeal are merely supportive in nature therefore those are also allowed partly to the extent mentioned in Ground No 1 and 2 of the above appeal. 06. Thus, appeal of the assessee is partly allowed. 07. Accordingly, MA of the learned Assessing Officer is allowed, consequently, the appeal of the Assessee is also partly allowed. Order pronounced in the open Court on 1/11/2023. Sd/- Sd/- [AMIT SHUKLA] [PRASHANT MAHARISHI] JUDICIAL MEMBER ACCOUNTANT MEMBER Page 4 of 4 M.A. No. 333/MUM/2023 & ITA No.1938/MUM/2021 Neelkanth Mansions and Infrastructure Pvt. Limited DATED:1/11/2023 JJ: Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. DR By order Assistant Registrar