DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-6(2), MUMBAI V. THE FREYSSINET PRESTRESSED CONCRETE CO. LTD, MUMBAI

MA 380/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6135 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-10-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 10-08-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 16-05-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order
• Section: 43B; 143(3); 139(1); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL "F" BENCH, MUMBAI SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER MA No. 380/MUM/2023 (Arising out of ITA No. 1328/Mum/2022) (Assessment Year: 2015-16) The Assistant Commissioner of Income Tax, Circle - 6(1)(2), Mumbai, Room No. 506, 5 th Floor, Aayakar Bhavan, Mumbai - 400020 ................ Appellant The Freyssinet Prestressed Concrete Co. Ltd., 6-B, Sterling Centre, 6 th Floor, Dr. Annie Besant Road, Worli, Mumbai - 400018 [PAN: AAACT2145C] Vs ................ Respondent Appearance For the Appellant/Department For the Respondent/Assessee : : Shri Manoj Kumar Sinha Shri Fenil Bhat Date Conclusion of hearing Pronouncement of order : : 11.08.2023 26.10.2023 O R D E R Per Rahul Chaudhary, Judicial Member: 1. The present Miscellaneous Application has been filed by the Revenue for rectification of order, dated 30/09/2022, passed by the Tribunal in ITA No. 1328/Mum/2022, pertaining to the Assessment Year 2015- 2016. Since the application has been filed within a period of six months from the date of receipt of order, the same is treated as having been filed within limitation in terms of Section 254(2) of the Act. MA No. 380/Mum/2023 Assessment Year: 2015-16 2 2. Vide order, dated 30/09/2022, passed in ITA No. 1328/Mum/2022, Ground No. 1 & 2 raised in appeal by the Assessee were allowed. The addition of INR 11,36,761/- made by the Assessing Officer, vide Assessment Order, dated 19/12/2017, passed under Section 143(3) of the Act on account deposits of Employees’ Contribution to Provident Fund and Employees’ State Insurance Corporation after lapse of time prescribed in the applicable statute was deleted since the aforesaid deposit, though delayed, were made before the due date of filing return specified under Section 139(1) of the Act. 3. Subsequently, in the case of Checkmate Services Private Ltd. v. CIT- 1:[2022] 448 ITR 518 (SC)[12-10-2022], the Hon’ble Supreme Court has held that where an assessee failed to deposit Employees' Contribution towards Provident Fund and Employees’ State Insurance within due date prescribed in respective statutes, deduction under Section 36(1)(va) of the Act was not allowable. The non-obstante clause contained in Section 43B of the Act would not apply in the case of employees’ contribution deducted from the salary of employees and held in trust by assessee-employer. Therefore, such assessee- employer would not be absolved from the liability to deposit employees’ contribution on or before the due date specified in the respective statutes as a pre-condition for claiming deduction under Section 36(1)(va) of the Act. In view of the above judgment of the Hon’ble Supreme Court in the case of Saurashtra Kutch Stock Exchange Ltd (supra), the law laid down by the Hon’ble Supreme Court in the case of Checkmate Services Private Ltd. (supra) shall apply retrospectively. 4. A subsequent decision of the Hon’ble Supreme Court can validly form the basis for rectification under Section 254 of the Act in view of the MA No. 380/Mum/2023 Assessment Year: 2015-16 3 judgment of the Hon’ble Supreme Court in the case of Assistant Commissioner of Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd.: 2008] 305 ITR 227 (SC) and the decisions of the Tribunal in the case of Kailashnath Malhotra Vs. Joint Commissioner of Income-tax, Special Range 56, Mumbai [2009] 34 SOT 541 (Mum.) (TM), and Assistant Commissioner of Income-tax Vs. Hughes Services (FE) Pte. Ltd.: [2009] [2005] 93 ITD 77 (Delhi)(TM). The view taken by the Tribunal vide order dated, 30/09/2022, being contrary to view taken by the Hon’ble Supreme Court in the case of Checkmate Services Private Ltd. (supra) constitutes a mistake apparent on record. Accordingly, we allow the rectification application preferred by the Revenue. Accordingly, order dated 30/09/2022, is recalled for adjudication of Ground No. 1 & 2 raised in the appeal. The registry is directed to list the appeal for hearing before the regular bench in due course after notice to both the parties. 5. In result, the Miscellaneous Application preferred by the Revenue is allowed. Order pronounced on 26.10.2023. Sd/- Sd/- (Prashant Maharishi) Accountant Member (Rahul Chaudhary) Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 26.10.2023 Alindra, PS MA No. 380/Mum/2023 Assessment Year: 2015-16 4 आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त/ The CIT 4. प्रध न आयकर आय क्त / Pr.CIT 5. दिभ गीय प्रदिदनदध, आयकर अपीलीय अदधकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. आिेश न स र/ BY ORDER, सत्य दपि प्रदि //True Copy// उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदधकरण, म ुंबई / ITAT, Mumbai