DCIT 4(3) (1) , MUMBAI V. SHRI MAHABIR DYEING AND PRINTING MILLS PVT. LTD, MUMBAI

MA 356/MUM/2022

AI Insights

The case involves the Income Tax Appellate Tribunal Mumbai Bench 'H' recalling its earlier decision in favor of the assessee, Mahabir Dyeing and Printing Mills Pvt. Ltd., which had allowed a deduction for the delayed deposit of employees' contributions to PF/ESI. The recall was prompted by a subsequent Supreme Court decision in Checkmate Services Pvt Ltd v. CIT, which clarified that such deductions are not permissible under section 36(1)(va) of the Income-tax Act, 1961. The Tribunal's earlier order was based on a precedent that had been overturned by this Supreme Court judgment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123701 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 19-01-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 27-11-2022
• Other Referred Cases: DCIT Vs. M/s. Maharashtra Tourism Development Corporation Ltd., Checkmate Services P. Ltd Vs. Commissioner of Income Tax-1
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order
• Section: 143(1); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “H”, MUMBAI BEFORE SHRI AMIT SHUKLA, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER MA.No. 356/MUM/2022 [ARISING OUT OF ITA NO. 1829/MUM/2021 (A.Y: 2018-19)] ACIT – 4(3)(1) Room No. 649, Aayakar Bhavan M.K. Road, Mumbai - 400020 v. M/s. Mahabir Dyeing and Printing Mills Pvt. Ltd., 510/511, Kakad Market, 306 Kalbadevi Road, Mumbai - 400002 PAN: AAACM5098H (Appellant) (Respondent) Assessee Represented by : Shri Ryan Saldhana Department Represented by : Shri Manoj Kumar Singh Date of Hearing : 20.01.2023 Date of Pronouncement : 08.02.2023 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Application revenue is seeking for recall of the order passed by the Tribunal in ITA.No. 1829/Mum/2021 dated 28.04.2022 for the A.Y.2018-19. We observe from the record that the order was pronounced on 28.04.2022. However, we noticed that the order was dispatched to the parties only on 24.05.2022. As per our view the provision of section 254(2) & (3) of the Act has to be read together. Therefore, the Miscellaneous Application filed by the revenue is within the limitation period. 2 MA.No. 356/MUM/2022 M/s. Mahabir Dyeing and Printing Mills Pvt. Ltd., 2. In the Miscellaneous Application, Revenue submitted as under: - “1. The Hon'ble Income Tax Appellate Tribunal, Mumbai "H" Bench was pleased to pass an order in the above mentioned case on 28.04.2022 in ITA No. 1829/Mum/2021 for A.Y. 2018-19. The appeal was filed by the Assessee. 2. This appeal by the assessee is directed against the order dated 08/09/2021 of the National Faceless Appeal Centre (NFAC) Delhi arising from order passed under section 143(1) of the Income-tax Act, 1961 for the assessment year 2018-19 by the Ld. AO CPC Bangalore. Issues raised in the miscellaneous application All the issues are in connection with the confirmation of the disallowance of Rs.4,37,188/- u/s 36(1)(va) of the Act. The contention of the assessee is that the Employee's Contribution of Rs.4,37,188/- was deposited before the due date of filing the return, therefore, the same amount is liable to be allowable u/s 36(1)(va) of the Act. The Hon'ble ITAT has relied on the case DCIT Vs. M/s. Maharashtra Tourism Development Corporation Ltd. in ITA. Nos. 6425/M/2017 decided on 27.07.2021 and has allowed the appeal of assessee. The issue involved in the said case has now attained finality in the latest judgment of Hon'ble Supreme Court in the case of Checkmate Services P. Ltd Vs. Commissioner of Income Tax-1 (CIVIL APPEAL NO. 2833 of 2016 dt. 12.10.2022) in favor of Revenue regarding payment towards contribution to employees provident fund. 3. Therefore, Miscellaneous Application is submitted before Hon'ble ITAT 'H' Bench in above mentioned case to get the present appeals restored in view of the latest judgment of Hon'ble Supreme Court in the case of Checkmate Services P. Ltd Vs. Commissioner of Income Tax-1 (CIVIL APPEAL NO. 2833 of 2016 dt. 12.10.2022). Hence this Miscellaneous Application is filed. 4. The appellant craves leave to add to, amend or withdraw the aforesaid ground of appeal.” 3. At the time of hearing, Ld. DR submitted that in this appeal, the Tribunal has deleted the addition made by the Assessing Officer on 3 MA.No. 356/MUM/2022 M/s. Mahabir Dyeing and Printing Mills Pvt. Ltd., 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 Checkmate Services Pvt Ltd v. CIT dated 12.10.2022, no deduction is allowable for delayed deposit of employees’ contribution to PF/ESI u/s. 36(1)(va) of the Act. 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 Checkmate Services Pvt Ltd v. CIT (supra). Accordingly, he submitted that order of the Tribunal need to be recalled. 4. The Ld. AR of the assessee objected for admission of the Miscellaneous Application. 5. Considered the rival submissions and material placed on record. In view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd v. CIT(supra), the finding of the Tribunal amounts to mistake apparent from record and, therefore, the order of the Tribunal on this appeal is recalled. Accordingly, we direct the 4 MA.No. 356/MUM/2022 M/s. Mahabir Dyeing and Printing Mills Pvt. Ltd., registry to fix the appeal for hearing in due course and inform the parties accordingly. 6. In the result, Miscellaneous Application filed by the assessee is allowed. Order pronounced in the open court on 08 th February, 2023. Sd/- Sd/- (AMIT SHUKLA) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 08/02/2023 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum