CIT (A) NFAC, DELHI V. M/S. VIRTEX ENGINEERS , MUMBAI

MA 342/MUM/2022

AI Insights

The case involves the Deputy Commissioner of Income-tax-27(3) as the applicant and M/s Virtex Engineers as the respondent. The Revenue filed miscellaneous applications seeking recall of the ITAT's order dated 09th May 2022, which had deleted additions made by the Assessing Officer regarding delayed deposit of employees' contributions to PF/ESI. The Tribunal's initial decision was based on an interpretation that allowed such deductions, which was later contradicted by a Supreme Court decision. The Tribunal found that this constituted a mistake apparent from the record, leading to the recall of the order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123499 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 12-01-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 21-11-2022
• Other Referred Cases: Checkmate Services Pvt Ltd vs CIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “F” MUMBAI BEFORE SHRI VIKAS AWASTHY (JUDICIAL MEMBER) AND OM PRAKASH KANT (ACCOUNTANT MEMBER M.A. No.342 & 343/Mum/2022 (Arising out of ITA No.89 & 90/Mum/2022) (Assessment Years : 2017-18 & 2018-19) Deputy Commissioner of Income-tax-27(3), Room No.423, 4 th Floor, Tower No.6, Vashi Railway Station Complex, Navi Mumbai-400 703 Vs. M/s Virtex Engineers 3-A, Ashirwad Building 1 st Floor, Govandi Road Chembur, Mumbai. APPLICANT PAN :AAAFV 1343 D RESPONDENT Assessee by : Shri Vimal Punmiya Revenue by : Shri Chetan M Kacha, Sr.AR Date of Hearing : 13/01/2023 Date of pronouncement : 19/01/2023 ORDER PER OM PRAKASH KANT, AM By way of these miscellaneous applications, the Revenue is seeking recall of the order dated 09 th May, 2022 passed by the ITAT in ITA Nos 89 & 90/Mum/2022 for A.Ys 017-18 & 2018-19, respectively. 2. Before us, the Ld. Tribunal has deleted the addition made by the Assessing Officer on account of delayed deposit of employees’ contribution to PF / Employees’ State Insurance of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd vs CIT dated 12 deduction is allowable for delayed deposit of contribution to PF / ESI under section 36(1)(va). Since the Hon’ble Supreme Court has interpreted the provisions which were in existence from the d Parliament and, therefore, allowing the said deduction for late deposit of PF / ESI is a mistake apparent from record in view of the decision of the Hon’ble Supreme Court in the case of Services Pvt Ltd vs CIT (supra) order of the Tribunal need to be recalled. 3. The Ld. Counsel of the assessee objected for admission of these miscellaneous applications. miscellaneous applications are barred verification of the records, we find that the impugned order was passed by the Tribunal on 09 from the end of the month in which order was passed expired on 30 th November, 2022. Since these mis been filed on 22/11/2022, therefore, being well within the prescribed limit, we hereby reject the objection of the Ld.Counsel of the assessee. Before us, the Ld. DR submitted that in these appeals, the deleted the addition made by the Assessing Officer on account of delayed deposit of employees’ contribution to PF / Employees’ State Insurance (ESI). He further submitted that in view of the decision of the Hon’ble Supreme Court in the case of rvices Pvt Ltd vs CIT dated 12 th October, 2022, no deduction is allowable for delayed deposit of contribution to PF / ESI under section 36(1)(va). Since the Hon’ble Supreme Court has interpreted the provisions which were in existence from the date, the same have been introduced by the Parliament and, therefore, allowing the said deduction for late deposit of PF / ESI is a mistake apparent from record in view of the decision of the Hon’ble Supreme Court in the case of s CIT (supra). Accordingly, he submitted that order of the Tribunal need to be recalled. Counsel of the assessee objected for admission of ese miscellaneous applications. According to him, these miscellaneous applications are barred by limitation. However, on verification of the records, we find that the impugned order was passed by the Tribunal on 09 th May, 2022 and period of six months from the end of the month in which order was passed expired on November, 2022. Since these miscellaneous applications have been filed on 22/11/2022, therefore, being well within the prescribed limit, we hereby reject the objection of the Ld.Counsel of M/s Virtex Engineers M.As. 342 & 343/Mum/2022 2 DR submitted that in these appeals, the deleted the addition made by the Assessing Officer on account of delayed deposit of employees’ contribution to PF / . He further submitted that in view of the decision of the Hon’ble Supreme Court in the case of October, 2022, no deduction is allowable for delayed deposit of employees’ contribution to PF / ESI under section 36(1)(va). Since the Hon’ble Supreme Court has interpreted the provisions which were in the same have been introduced by the Parliament and, therefore, allowing the said deduction for late deposit of PF / ESI is a mistake apparent from record in view of the decision of the Hon’ble Supreme Court in the case of Checkmate Accordingly, he submitted that Counsel of the assessee objected for admission of According to him, these limitation. However, on verification of the records, we find that the impugned order was May, 2022 and period of six months from the end of the month in which order was passed expired on cellaneous applications have been filed on 22/11/2022, therefore, being well within the prescribed limit, we hereby reject the objection of the Ld.Counsel of 4. The Ld. Counsel of the assessee submitted that in view of the decision of the Tribunal in the case of M/s P R Packaging Service in ITA No.2376/Mum/2022, if the adjustment is made for late deposit of PF / ESI, it cannot be made in order passed under section 143(1)(a). However, we find that in this case, no finding has been given by the Tribunal, and therefore, the ratio of the decision relied upon by the Ld. Counsel cannot be invoked. 5. In view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd vs CIT(supra), the finding of the Tribunal amounts to mistake apparent from record and, therefore, the order of the Tribunal on these appeals are recalled and the appeals are fixed for hearing on hearing has been announced in the open court, no notice of hearing shall be issued to the parties. 6. In the result, the Revenue are allowed. Order pronounced under Rule 34(4) of the ITAT Rules, 1963 on 19/01/2023. Sd/- (VIKAS AWASTHY JUDICIAL MEMBER Mumbai; Dated: 19/01/2023 Pavanan, Sr. P.S. Counsel of the assessee submitted that in view of the bunal in the case of M/s P R Packaging Service in ITA No.2376/Mum/2022, if the adjustment is made for late deposit of PF / ESI, it cannot be made in order passed under section 143(1)(a). However, we find that in this case, no finding has been Tribunal, and therefore, the ratio of the decision relied Counsel cannot be invoked. In view of the decision of the Hon’ble Supreme Court in the Checkmate Services Pvt Ltd vs CIT(supra), the finding of the Tribunal amounts to mistake apparent from record and, therefore, the order of the Tribunal on these appeals are recalled and the appeals are fixed for hearing on 06/02/2023. Since the dat een announced in the open court, no notice of hearing shall be issued to the parties. In the result, the Miscellaneous Applications Revenue are allowed. Order pronounced under Rule 34(4) of the ITAT Rules, 23. Sd/ VIKAS AWASTHY) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER M/s Virtex Engineers M.As. 342 & 343/Mum/2022 3 Counsel of the assessee submitted that in view of the bunal in the case of M/s P R Packaging Service in ITA No.2376/Mum/2022, if the adjustment is made for late deposit of PF / ESI, it cannot be made in order passed under section 143(1)(a). However, we find that in this case, no finding has been Tribunal, and therefore, the ratio of the decision relied In view of the decision of the Hon’ble Supreme Court in the Checkmate Services Pvt Ltd vs CIT(supra), the finding of the Tribunal amounts to mistake apparent from record and, therefore, the order of the Tribunal on these appeals are recalled and the ince the date of een announced in the open court, no notice of hearing Miscellaneous Applications filed by the Order pronounced under Rule 34(4) of the ITAT Rules, Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER Copy of the Order forwarded to 1. The Applicant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary) ITAT, Mumbai M/s Virtex Engineers M.As. 342 & 343/Mum/2022 4 BY ORDER, (Sr. Private Secretary) ITAT, Mumbai