ACIT--3(1)(1), Mumbai V. M/s. Geekay Securities Services Private Limited, Mumbai

MA 406/MUM/2022

AI Insights

The case involves the Deputy Commissioner of Income Tax (DCIT) as the appellant and M/s. Geekay Securities Services Pvt. Ltd. as the respondent. The dispute originated from an order under section 143(1) of the Income-tax Act, 1961, passed by the National Faceless Appeal Centre (NFAC), which confirmed a disallowance of Rs. 1,21,39,702 for the Assessment Year 2017-18. The ITAT initially allowed the assessee's appeal, which was based on the argument that the employee's contribution to PF/ESI was deposited before the due date of filing the return, thus should be allowable under section 36(1)(va). However, following the Supreme Court's decision in Checkmate Services Pvt Ltd v. CIT, the revenue filed a Miscellaneous Application seeking recall of the ITAT's order, citing it as a mistake apparent from the record in light of the new judicial precedent.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123703 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-03-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 02-03-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 15-12-2022
• Other Referred Cases: Checkmate Services P. Ltd Vs. Commissioner of Income Tax-1
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(1)

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. 406/MUM/2022 [ARISING OUT OF ITA NO. 1842/MUM/2021 (A.Y: 2017-18)] DCIT – 3(1)(1) 6 th Floor, Aayakar Bhavan M.K. Road Mumbai – 400020 v. M/s. Geekay Securities Services Pvt. Ltd., G-11, Tulsani Chambers Free Press Journal Marg Nariman Point, Mumbai - 400021 PAN: AACCG1282D (Appellant) (Respondent) Assessee Represented by : Shri Gyaneshwar Katram Department Represented by : Shri Samual Pitta Date of Hearing : 03.03.2023 Date of Pronouncement : 15.03.2023 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. 1842/Mum/2021 dated 25.04.2022 for the A.Y.2017-18. 2. In the Miscellaneous Application, Revenue submitted as under: - 2 MA.No. 406/MUM/2022 M/s. Geekay Securities Services Pvt. Ltd., “1. The Hon'ble Income Tax Appellate Tribunal, Mumbai "H" Bench was pleased to pass an order in the above mentioned case on 25.04.2022 in ITA No.1842/Mum/2021 for A.Y. 2017-18. The appeal was filed by the Assessee. 2. This appeal by the assessee is directed against the order passed under section 143(1) of the Income-tax Act, 1961 dated 06.08.2019 for the A.Y. 2017-18 of the National Faceless Appeal Centre (NFAC) by the Ld. AO CPC Bangalore. Issues raised in the Miscellaneous Application The issues are in connection with the confirmation of the disallowance of Rs. 1,21,39,702/- for the A.Y.2017-18 under section 36(1)(va) of the Act. The contention of the assessee is that the Employee's Contribution 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 relied upon the various judicial pronouncement and allowed assessee's grounds of appeal. 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, this Miscellaneous Application is submitted before Hon'ble ITAT F 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 Pvt Ltd Vs. Commissioner of Income Tax-1 (CIVIL APPEAL NO. 2833 of 2016 dt. 12.10.2022). Hence this Miscellaneous Application is filed. 4. In this connection, the present Miscellaneous Application is moved before the Hon'ble ITAT requesting for restoration of appeal. 5. 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 account of delayed deposit of employees’ contribution to PF/Employees’ 3 MA.No. 406/MUM/2022 M/s. Geekay Securities Services Pvt. Ltd., 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. On the other hand, 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. 406/MUM/2022 M/s. Geekay Securities Services 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 revenue is allowed. Order pronounced in the open court on 15 th March, 2023. Sd/- Sd/- (AMIT SHUKLA) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 15/03/2023 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