DCIT 32(1),MUMBAI, MUMBAI V. NILESH V. METHA, MUMBAI

MA 34/MUM/2023

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This case involves a Miscellaneous Application by the revenue against the Tribunal's earlier decision which had allowed the appeal of the assessee, Nilesh V Mehta, by deleting a disallowance of Rs.2,99,449. This disallowance was initially confirmed by the CIT(A) and pertained to the non-deposit of employees' 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 that such contributions must be disallowed if not deposited within the due dates as per the respective acts. The Tribunal, upon reviewing the Supreme Court's decision, recalled its earlier order and restored the appeal for further consideration.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 125109 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-06-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 15-01-2023
• Other Referred Cases: Checkmate Services Pvt. Ltd. Vs. CIT-1(448 ITR 518)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(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. 34/Mum/2023 (Arising out of ITA. No.1150/Mum/2022 (निर्धारण वर्ा / Assessment Year: 2019-20) DCIT-42(1)(1) 702, Kautilya Bhawan, BKC, Bandra East, Mumbai- 400051. बिधम/ Vs. Nilesh V Mehta 505/506, Fly Edge, SV Road, Borivali West, Mumbai-400092. स्थधयी लेखध सं./जीआइआर सं./PAN/GIR No. : ADAPM1284H (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) सुनवाई की तारीख / Date of Hearing: 30/06/2023 घोषणा की तारीख /Date of Pronouncement: 19/07/2023 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.1150/Mum/2022 dated 30.06.2022. 2. At the outset, the Ld. DR brought to our notice even though the impugned order has been passed vide order dated 30.06.2022, however, the department received the order of the Tribunal only on 22.09.2022, and in order to prima facie prove that it was received only on 22.09.2022, he drew our attention to the Tribunal’s order and especially to the first (caption page) wherein it is noticed that date stamp of department (office of the Principal Commissioner of Income Tax-17) wherein date depicted is 22.09.2022. Therefore, it is presumed that the office of the PCIT received the order on 22.09.2022. In the absence of any other evidence to show that department received the impugned order before that date, we presume the fact that department Assessee by: None Revenue by: Shri Soumendu Kumar Dash (Sr. AR) MA. No.34/Mum/2023 A.Y. 2019-20 Nilesh V. Mehta 2 received the impugned order only on 22.09.2022. And therefore, we hold that the department has filed the miscellaneous application on 16.01.2023 within six (6) month 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 appeal 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.2,99,449/- for not depositing the employees 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 30.06.2022 and consequently restore the appeal filed by the assessee for AY. 2019-20. 3. In the result, Miscellaneous application filed by the revenue is allowed. Order pronounced in the open court on this 19/07/2023. Sd/- Sd/- (BR. BASKARAN) (ABY T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER मुुंबई Mumbai; दिनाुंक Dated : 19/07/2023. Vijay Pal Singh, (Sr. PS) MA. No.34/Mum/2023 A.Y. 2019-20 Nilesh V. Mehta 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.