DCIT CENT. CIR -1, THANE V. M/S. ANTONY WASTE HANDLING CELL LTD, MUMBAI

MA 352/MUM/2022

AI Insights

The case involves the Assistant Commissioner of Income-tax, Central Circle-2, Thane (Revenue) filing miscellaneous applications under section 254(2) of the Income-tax Act against M/s Antony Waste Handling Cell Limited. The applications sought to recall the Tribunal's earlier order dated 31/05/2022, which allowed the employees' contributions to Provident Fund & ESI deposited late but before the filing of the return of income. This recall was prompted by a subsequent Supreme Court decision in Checkmate Services Pvt Ltd vs CIT, which settled the legal position on the matter. The Tribunal, referencing the Supreme Court's decision and previous cases, acknowledged the need to rectify the earlier order to align with the settled law.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 112947 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-01-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 27-11-2022
• Other Referred Cases: Checkmate Services Pvt Ltd vs CIT, Assistant Commissioner of Income-tax vs Saurashtra Kutch Stock Exchange Ltd
• Laws Referred To: Income-tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 43B; 254(2)

Judgement Text

1 MAs 352 to 355/Mum/2022 Antony Waste Handling Cell Ltd IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “A”, MUMBAI BEFORE SHRI KULDIP SINGH (JUDICIAL MEMBER) AND SHRI GAGAN GOYAL (ACCOUNTANT MEMBER) M.A. No.352 & 353/Mum/2022 (Arising out of ITAs No.1942 & 1943/Mum/2021) (Assessment Years : 2019-20 & 2018-19) AND M.A. No.354 & 353/Mum/2022 (Arising out of Cos No.43 & 44/Mum/2022) (Assessment Years : 2019-20 & 2018-19) Assistant Commissioner of Income-tax, Central Circle- 2, Thane vs M/s Antony Waste Handling Cell Limited, 1403/04, Dev Corpora, Near Cadbury Junction, Khopat, Thane-400 601 PAN : AACCA9772C APPLICANT RESPONDENT Assessee represented by Shri Gaurav A Poddar Department represented by Shri Chetan M Kacha, Sr.AR. Date of hearing 20/01/2023 Date of pronouncement /01/2023 ORDER PER : KULDIP SINGH : JM Applicant, Assistant Commissioner of Income-tax, Central Circle- 2, Thane (hereinafter referred to as ‘the Revenue’) by filing aforesaid miscellaneous application under section 254(2) of the Act sought to 2 MAs 352 to 355/Mum/2022 Antony Waste Handling Cell Ltd recall the order in question dated 31/05/2022 passed by the co- ordinate bench of Tribunal in ITA Nos. 1942 & 1943/Mum/2021 and CO Nos.43 & 44/Mum/2022 for A.Ys 2018-19 2019-20 on the ground that the issue involved in the aforesaid appeals was disallowance under section 36(1(va) read with section 43B of the Act on account of delayed payment of employees provident fund / ESI, etc. as prescribed under the relevant Act, which has now been settled by the Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd vs CIT in Civil Appeal No.2883 of 2016 dated 20/10/2022. 2. Keeping in view the settled principle of law that any order passed by Tribunal in contravention to the law laid down by Hon’ble Supreme Court of India is a mistake apparent on record and as such, is liable to be rectified, the order in question passed by the co-ordinate bench of Tribunal vide order dated 31/05/2022 (supra) in aforesaid appeals and cross objections allowing the employees’ contribution to Provident Fund & ESI deposited late as prescribed under the relevant Act but before filing of the return of income is hereby recalled to be listed before the Bench for passing a fresh order as per decision rendered by Hon’ble Supreme Court in case of Checkmate Services Pvt Ltd vs CIT (supra). We are fortified with the decision rendered by the Hon’ble Supreme Court in case of Assistant Commissioner of Income- tax vs Saurashtra Kutch Stock Exchange Ltd (2008) 305 ITR 227(SC) to support our view, wherein it is decided as under:- “Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality. A patent, manifest and self-evident error which does not require elaborate discussion of evidence or arguments to establish it, can be said to be an error. 3 MAs 352 to 355/Mum/2022 Antony Waste Handling Cell Ltd apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot-be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the record means an error which strikes one on mere looking and does not need a long drawn out process of reasoning on points on which there may be conceivably two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of possible views, the case cannot be said to be covered by an error apparent on the face of the record. Where after the Appellate Tribunal rendered its decision on appeal, a mis- cellaneous application was filed by the assessee under section 254(2) of the Income-tax Act, 1961, stating that a decision of the jurisdictional High Court was not brought to the notice of the Tribunal: Held, that there was a mistake apparent from the record which required rectification.” 3. Aforesaid appeals heard today afresh and separate order of even date has been passed. 4. Resultantly, miscellaneous applications filed by the Revenue are hereby allowed. Order pronounced in the open court on ____ /01/2022 (GAGAN GOYAL) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dt : January, 2023 Pavanan ितिलिप अ ेिषतCopy of the Order forwarded to : 1. /The Appellant , 2. / The Respondent. 3. आयकर (अ)/ The CIT(A)- 4. आयकर CIT 5. िवभागीय , आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 6. फाइल/Guard file. BY ORDER, //True Copy// Asstt. Registrar / Senior Private Secretary, ITAT, Mumbai