ACIT, Cir. -26(1), Kolkata V. Altabur Rahaman Mollah, Kolkata

MA 35/KOL/2023

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9788 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-11-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-10-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 18-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 263; 254(2)

Judgement Text

M.A. No. 35/KOL/2023 (in ITA No. 232/KOL/2022) A.Y. 2017-2018 Altabur Rahaman Mollah 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘A’ BENCH, KOLKATA Before Shri Rajpal Yadav, Vice-President & Dr. Manish Borad, Accountant Member M.A. No. 35/KOL/2023 (in I.T.A. No. 232/KOL/2022) Assessment Year: 2017-2018 Assistant Commissioner of Income Tax,.......Applicant Circle-26(1), Kolkata Aayakar Bhawan Dakshin, 2, Gariahat Road, Kolkata-700031 -Vs.- Altabur Rahaman Mollah,........................Respondent Flat 302, 3 rd Floor, 266, Hirok Apartment, Parnasree Pally, Kolkata-700060 [PAN: AFDPM0534M] Appearances by: Shri P.P. Barman, Addl. CIT, appeared on behalf of the Revenue N o n e, appeared on behalf of the assesseee Date of concluding the hearing : October 06, 2023 Date of pronouncing the order : November 29, 2023 O R D E R Per Shri Rajpal Yadav, Vice-President (KZ):- The present Miscellaneous Application is directed at the instance of Revenue pointing out an apparent error M.A. No. 35/KOL/2023 (in ITA No. 232/KOL/2022) A.Y. 2017-2018 Altabur Rahaman Mollah 2 in the order of the Tribunal dated 5 th September, 2022 passed in ITA No. 232/KOL/2022. 2. The assessee had deposited the employees’ contributions towards P.F. & ESI Acts after the due date of limitation provided under those Acts but before the due date of filing the return of income. The ld. Assessing Officer has allowed the claim of assessee and ld. Commissioner took action under section 263 of the Income Tax Act. The appeal came to the Tribunal. The Tribunal vide its order dated 5 th September, 2022 in ITA No. 232/KOL/2022 for A.Y. 2017-18 has held that if employees’ contributions of P.F. & ESI are being deposited before the due date of filing of the return, then, assessee will be entitled for the deduction. The Tribunal has passed its decision on the basis of Hon’ble Calcutta High Court’s decisions in the cases of M/s. Philips Carbon Black Limited and M/s. Coal India Limited. The Tribunal has quashed the 263 order of the ld. Commissioner by holding that there is no error in the order of the ld. Assessing Officer for granting the allowance claimed by the assessee because the issue is covered by the decision of the Hon’ble Jurisdictional High Court. The Tribunal concurred with the ld. Assessing Officer and quashed the order of the ld. CIT. M.A. No. 35/KOL/2023 (in ITA No. 232/KOL/2022) A.Y. 2017-2018 Altabur Rahaman Mollah 3 3. The Department has filed the present Miscellaneous Application on the ground that position of law has been changed after the decision of the Hon’ble Supreme Court in the case of Checkmate Services (P) Limited –vs.- CIT reported in 143 taxmann.com 178. The Hon’ble Supreme Court has held that if P.F. & ESI contributions of the employees are not being deposited within due date of the limitation provided under those Acts, then, assessee will not be entitled for deduction as per section 36(1)(va) of the Income Tax Act. On the strength of this decision, Department has pleaded that Tribunal order is suffering from apparent error because it is contrary to the view point of the Hon’ble Supreme Court. 4. With the assistance of ld. Representative, we have gone through the record carefully. The Registry has pointed out that Miscellaneous Application is barred by 81 days. The time limit to file Miscellaneous Application under section 254(2) is six months from the date of the Tribunal’s order. The time limit to file such application was four years before the amendment carried out by the Finance Act, 2016. The Tribunal was satisfied that this Miscellaneous Application is time barred and not maintainable. Therefore, on 14 th July, 2023, Tribunal has passed the following order:- “14.07.2023: The present Miscellaneous Application is directed at the instance of Revenue pointing out an apparent M.A. No. 35/KOL/2023 (in ITA No. 232/KOL/2022) A.Y. 2017-2018 Altabur Rahaman Mollah 4 error in the order of the Tribunal dated 5 th September, 2022 passed in ITA No. 232/KOL/2022. A perusal of the record would suggest that Miscellaneous Application is a prima facie time-barred and ld. D.R. was unable to explain the reasons. Hearing is adjourned to 1 st September, 2023. The ld. D.R. is directed to explain why this application be not dismissed being time-barred because there is no power to condone the delay in admitting Miscellaneous Application for rectification under section 254(2) of the Income Tax Act. Copy of this order-sheet be supplied to the ld. D.R. Sd/- Sd/- (Manish Borad) (Rajpal Yadav) Accountant Member Vice-President (KZ)” 5. The Department was unable to explain as to how the Miscellaneous Application is within time. There is no provision under section 254(2) to condone the delay. Therefore, the present Miscellaneous Application is not maintainable. Accordingly it is dismissed. 6. In the result, the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open Court on 29/11/2023. Sd/- Sd/- (Dr. Manish Borad) (Rajpal Yadav) Accountant Member Vice-President (KZ) Kolkata, the 29 th day of November, 2023 Copies to : (1) Altabur Rahaman Mollah, Flat 302, 3 rd Floor, 266, Hirok Apartment, Parnasree Pally, Kolkata-700060 M.A. No. 35/KOL/2023 (in ITA No. 232/KOL/2022) A.Y. 2017-2018 Altabur Rahaman Mollah 5 (2) Assistant Commissioner of Income Tax, Circle-26(1), Kolkata, Aayakar Bhawan Dakshin, 2, Gariahat Road, Kolkata-700031 (3) Pr. Commissioner of Income Tax, Kolkata-9; (4) The Departmental Representative (5) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.