Shri Dharmendra Hirubhai Patel, Surat V. Dy. Commissioner of Income Tax, CPC, Bangluru, Surat

MA 43/SRT/2022

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8999 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-11-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-09-2022
• Assessment Year: 2018-2019
• Appeal Filed On: 23-08-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SIDDHI PATEL
• Section: 43B; 143(1); 139(1); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM MA No.43/SRT/2022 [Arising out of ITA No.139/SRT/2021] Assessment Year: (2018-19) (Physical Court Hearing) Dharmendra Hirubhai Patel, Motawada Street, At & Post. Hazira, Tal: Choryasi, Surat-394270. Vs. The DCIT, CPC, Bengaluru. (Appellant) (Respondent) èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AMHPP6575A Assessee by Shri Siddhi Patel, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 23/09/2022 Date of Pronouncement 03/11/2022 आदेश / O R D E R PER DR. A. L. SAINI, AM: By way of captioned application, the assessee has sought to point out that a mistake apparent from record within the meaning of section 254(2) of the Income Tax Act, 1961(in short ‘the Act’) has crept in the order of the Tribunal dated 27.06.2022. 2. The case of the assessee in this Miscellaneous Application, which is stated by the assessee in written submission, is reproduced below: “1. In this case the assessee had filed return of income u/s. 139(1) of the Act on 21.09.2018 declaring total income at Rs.8,73,630/- for the captioned assessment year. Thereafter, Intimation order u/s. 143(1) of the Act was passed on 17.05.2019 determining total income amounting to Rs.40,04,860/- thereby wrongly made addition of Rs.31,31,235/- in respect of both Employees and employer contribution u/s 36(1)(va) of the Act instead of only employees contribution towards Provident fund and ESIC. Copy of intimation order u/s 143(1) of the Act is enclosed herewith marked as Annexure-1. 2. Aggrieved by the same, the assessee has preferred an appeal before Hon'ble CIT(A) on 24.05.2019. However, Hon'ble CIT(A) has disallowed the appeal filed by the assessee vide his order dated 30.07.2021. Copy of the order is enclosed herewith marked as Annexure-2. Page | 2 MA.43/SRT/2022/AY.2018-19 Dharmendra H. Patel 3. Further, aggrieved by the same, the assessee preferred 2 nd appeal before the Hon'ble ITAT bench on 07.09.2021. Hon'ble ITAT Surat bench has pronounced an order on 27.06.2022 in respect of the captioned appeal dismissing the same for statistical purpose. Copy of the order is enclosed herewith marked as Annexure-3. 4. However, Sir, the assesses would like to bring to your kind attention that during the course of hearing held on 14.06.2022, the Hon'ble bench has instructed the AR of the assessee to submit an additional submission mentioning details of wrongful disallowance with respect late payment of P.F./ESIC contribution made by employer along with P.F./ESIC contribution of employee by the CPC in tabular format. CPC vide its intimation order u/s 143(1) has wrongly made addition of Rs. 31,31,235/- in respect of both Employees and employer contribution u/s 36(1)(va) of the Act instead of only employees contribution towards Provident fund and ESIC. Hence, to justify the same, the assessee had submitted his additional submission on 16.06.2022 to the Hon'ble Bench through e-mail. Copy of the submission along with snapshot of read receipt is enclosed herewith marked as Annexure-4. Despite of the above submission as well as additional submission was not considered while pronouncing the aforesaid ITAT order on 27.06.2022 which is incorrect. It is to be noted that only employees contribution amounting to Rs.13,25,557/- shall be disallowed (if CIT(A) order is upheld) instead of total contribution of Rs. 31,31,235/- (which includes employer contribution). Based on the above fact, the assessee was hoping that the same shall not be disallowed in anyway, being not a litigative issue and as per the law only. In view of the above facts, Miscellaneous Application (M.A.) is submitted on the issue of wrongful disallowance of employer contributions towards PF/ESIC before your honour for kind consideration. Thus, we hereby request the Hon'ble bench to pass the necessary order by allowing employers contribution amounting to Rs.18,05,678/- and oblige.” 3. The Learned Counsel for the assessee argued that main contention of the assessee in this Miscellaneous Application is that the Tribunal has not considered the employer contribution differently and treated at par with employee contribution. Therefore Ld. Counsel contended that the employer`s contribution paid within the time limit prescribed under section 139(1) r.w.s. 43B of the Act, has to be considered by Tribunal separately, and it should not be merged with employees’ contribution. The quantum of amount of Rs.18,05,678/-pertains to employer`s contribution. The chart submitted by the assessee, containing employees` contribution and employer`s contribution to PF and ESIC, is reproduced below: Page | 3 MA.43/SRT/2022/AY.2018-19 Dharmendra H. Patel From the above chart, it is clear that employer`s contribution to the tune of Rs.18,05,678/- should not be merged with employees contribution, thus there is mistake apparent in the order of the Tribunal which should be rectified. 4. On the other hand, Learned Departmental Representative (Ld. DR) for the Revenue submitted that there is no mistake apparent from record. Moreover, Ld. DR pointed out that it is not clear whether employer`s contribution was paid within the due date of filing return of income under Page | 4 MA.43/SRT/2022/AY.2018-19 Dharmendra H. Patel section 139(1) of the Act, therefore assessee cannot claim the deduction under section 43B of the Act. This way, the employer`s contribution to PF and ESIC may also be disallowed and hence there is no mistake apparent from record from the order of the Tribunal. 5. We have heard both the parties and perused the material available on record. We note that the employer’s contribution has been covered under section 43B r.w.s. 139(1) of the Act, if it is paid before the due date of filling return of income, then in that situation it should be allowed. That is, such contribution should be allowed on actual payment basis. We note that late payment of employees contribution to PF and ESIC, is covered against the assessee by the judgment of the Hon'ble jurisdictional Gujarat High Court in the case of State Road Transport Corporation (GSRTC) 41 taxmann.com 100 (Guj), which is approved by the Hon`ble Supreme Court in the case of CHECKMATE SERVICES P. LTD, vide CIVIL APPEAL NO. 2833 OF 2016, dated 12.10.2022. 6. However, the employer’s contribution has been covered under section 43B r.w.s. 139(1) of the Act, and if it is paid before the due date of filling return of income, then in that situation it should be allowed, hence we find that there is mistake apparent from record. The Tribunal has not considered the employer’s contribution differently, which is claimed by the assessee to be paid before the due date of filing return of income, therefore we recall the order of Tribunal for limited purpose to adjudicate the issue in relation to employer’s contribution. Hence, the order of the Tribunal is hereby recalled for limited purpose to adjudicate the issue relating to employer’s contribution of Rs.18,05,678/-to the extent mentioned above. The registry is directed to fix the appeal of the assessee for hearing in due course and both the parties be informed. 7. In the result, the Miscellaneous Application filed by the assessee is allowed to the extent indicated above. Page | 5 MA.43/SRT/2022/AY.2018-19 Dharmendra H. Patel Order is pronounced in the open court on 03/11/2022 by placing the result on the Notice Board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 03/11/2022 SAMANTA Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat