DY. COMMISSIONER OF INCOME TAX, CIRCLE-16(2) , MUMBAI V. M/S. SUPER TILES & MARBLES PVT. LTD, MUMBAI

MA 402/MUM/2022

AI Insights

The case involves the Deputy Commissioner of Income Tax, Circle-16(2) as the appellant and M/s. Super Tiles and Marbles Pvt. Ltd. as the respondent. The core issue revolves around the eligibility of deduction for employee's contributions to PF & ESI under section 43B of the Income Tax Act, 1961, when such contributions are remitted beyond the prescribed due dates but before the due date of filing the income tax return. Initially, the Tribunal's decision favored the assessee based on earlier decisions. However, following a Supreme Court ruling that reversed this position, the Tribunal recalled its earlier order and scheduled a new hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 302389 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-02-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 09-02-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 15-12-2022
• Other Referred Cases: Kalpesh Synthetics Pvt. Ltd vs. DCIT, CIT vs. Ghatge Patil Transport Ltd., 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, ‘E‘ BENCH MUMBAI BEFORE: SHRI M.BALAGANESH, ACCOUNTANT MEMBER & SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER MA No.401/Mum/2022 (Arising out of ITA No.1949/Mum/2021) (Asse ssment Year :2018-19) & MA No.402/Mum/2022 (Arising out of ITA No.1950/Mum/2021) (Asse ssment Year :2019-20) Dy. Commissioner of Income Tax, Circle-16(2) Room No.625, 6 th Floor Aayakar Bhavan Mumbai – 400 020 Vs. M/s. Super Tiles and Marbles Pvt. Ltd. 107, Nirman Kendra Famous Studio Lane Mumbai – 400 011 PAN/GIR No.AAACS9361B (Appellant) .. (Respondent) Assessee by None Revenue by Ms. Samruddhi Hande Date of Hearing 10/02/2023 Date of Pronouncement 10/02/2023 आदेश / O R D E R PER M. BALAGANESH (A.M): By virtue of these Miscellaneous Applications, the Revenue seeks to recall the order passed by this Tribunal in ITA No. 1949/Mum/2021 & 1950/Mum/2021 dated 14/06/2022. 2. None appeared on behalf of the assessee. We have heard ld.DR and perused the materials available on record. We find that this Tribunal vide its order dated 14/06/2022 by placing reliance on the Co-ordinate Bench MA No. 401 & 402/Mum/2022 M/s. Super Tiles and Marble Pvt. Ltd. 2 decision of this Tribunal in the case of Kalpesh Synthetics Pvt. Ltd vs. DCIT reported in 137 taxmann.com 475 dated 27/04/2022 and also by placing reliance on the decision of the Hon’ble Jurisdictional High Court in the case of CIT vs. Ghatge Patil Transport Ltd. reported in 368 ITR 749 had held that the employee’s contribution to PF & ESI even if remitted beyond the due date prescribed under the respective acts but remitted before the due date of filing of return of income u/s.139(1) of the Act would be eligible for deduction u/s.43B of the Act. Accordingly, the issue was decided in favour of the assessee. However, the Revenue in its Miscellaneous Application had drawn our attention to the recent decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. vs.CIT reported in 143 taxmann.com 178 wherein the very same issue has been decided in favour of the Revenue. The law is very well settled that the subsequent decision of the Hon’ble Supreme Court would pave way for rectification of the order of the Tribunal u/s.254(2) of the Act. Accordingly, we find force in the Miscellaneous Application preferred by the Revenue in this regard. Hence, we deem it fit to recall the order passed by this Tribunal in ITA No.1949/Mum/2021 & ITA No.1950/Mum/2021 dated 14/06/2022 in its entirety. In view of these Miscellaneous Applications of the Revenue are allowed and appeals are recalled for fresh hearing on 12/04/2023. Notice to be issued to both the parties. 3. In the result, Miscellaneous Applications of the Revenue are allowed. Order pronounced on 10/02/2023 by way of proper mentioning in the notice board. Sd/- (RAHUL CHAUDHARY) Sd/- (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 10/02/2023 MA No. 401 & 402/Mum/2022 M/s. Super Tiles and Marble Pvt. Ltd. 3 KARUNA, sr.ps Copy of the Order forwarded to : BY ORDER, (Asstt. Registrar) ITAT, Mumbai 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy//