I.T.O., Ward - 49(1), Kolkata, Kolkata V. Gargi Poddar, Kolkata

MA 49/KOL/2022

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The case involves a Miscellaneous Application (M.A. No. 49/KOL/2022) filed by the Income Tax Officer (ITO), Ward-49(1), Kolkata against Gargi Poddar, concerning the assessment year 2018-19. Initially, the Tribunal had allowed the assessee's appeal, deleting a disallowance of Rs. 45,58,960 on account of PF & ESI. However, following a Supreme Court decision in Checkmate Services Pvt. Ltd. Vs. CIT, which contradicted the Tribunal's earlier ruling, the Revenue filed a Miscellaneous Application to recall the Tribunal's order, citing an apparent mistake under Section 254(2) of the Income Tax Act, 1961. The Tribunal, acknowledging the change in legal precedent and the Supreme Court's authority, decided to recall its earlier order and scheduled the case for a new hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 128777 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-06-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-06-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 14-11-2022
• Other Referred Cases: Checkmate Services Pvt. Ltd. Vs. CIT, ACIT vs. Saurashtra Kutch Stock Exchange Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

आयकर अपीलीय अधिकरण कोलकाता 'बी' पीठ, कोलकाता म ें IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘B’ BENCH, KOLKATA श्री राज े श क ु मार, ल े खा सदस्य एवं श्री संजय शमा ा , न्याधयक सदस्य क े समक्ष Before SRI RAJESH KUMAR, ACCOUNTANT MEMBER & SONJOY SARMA, JUDICIAL MEMBER M.A. No. 49/KOL/2022 Arising out of I.T.A. No.: 555/KOL/2021 Assessment Year: 2018-19 ITO, Ward-49(1), Kolkata.........................................Appellant Vs. Gargi Poddar........................................................Respondent [PAN: AGQPP 6634 B] Appearances by: Sh. Vijay Kumar, Addl. CIT, appeared on behalf of the Revenue. Sh. D.K. Saha, A/R, appeared on behalf of the Assessee. Date of concluding the hearing : June 2 nd , 2023 Date of pronouncing the order : June 28 th , 2023 ORDER Per Rajesh Kumar, Accountant Member: This Miscellaneous Application has been filed by the Revenue against the order passed by the Tribunal in ITA No. 555/KOL/2021 for AY 2018-19 dated 04.05.2022 wherein the appeal of the assessee has been allowed on the issue of PF & ESI amounting to Rs. 45,58,960/-. M.A. No. 49/KOL/2022 Arising out of I.T.A. No.: 555/KOL/2021 Assessment Year: 2018-19 Gargi Poddar. Page 2 of 4 2. Ld. D/R submitted that in view of the decision of Hon'ble Supreme Court in the case of Hon’ble Supreme Court in Checkmate Services Pvt. Ltd. Vs. CIT reported in (2022) 143 taxmann.com 178 (SC) dated 12.10.2022, the decision of the Tribunal is said to be suffering from an apparent mistake and therefore, the same needs to be recalled. The Ld. D/R also referred to the provisions of Section 254(2) of the Income Tax Act, 1961 (in short the ‘Act’) and requested that the order passed by the Tribunal may kindly be recalled. 3. On the other hand, ld. A/R vehemently opposed the arguments of ld. D/R by submitting that there is no error in the order of the Tribunal as any subsequent decision of any judicial Court cannot render a decision which is reasoned and speaking one and is not having any apparent mistake. Ld. A/R submitted that the decision of the Hon'ble Supreme Court in the case of Chekmate Services Pvt. Ltd. (supra) cannot be said to have rendered the validly passed order to be suffering from apparent error. Therefore, ld. A/R submitted that the Miscellaneous Appeal filed by the Revenue may kindly be dismissed. 4. We have heard the rival submissions and perused the records placed before us including the decision of Hon'ble Supreme Court in the case of Chekmate Services Pvt. Ltd. (supra). We find that the Tribunal vide order dated 04.05.2022 has allowed the appeal of the assessee deleting the disallowance of Rs. 45,58,960/- on account of PF&ESI. Now, the Hon'ble Apex Court has decided the issue against the assessee in the case of Checkmate Services Pvt. Ltd. Vs. CIT (supra). Therefore, in view of this, the Revenue has moved a M.A. No. 49/KOL/2022 Arising out of I.T.A. No.: 555/KOL/2021 Assessment Year: 2018-19 Gargi Poddar. Page 3 of 4 miscellaneous petition seeking the recalling of the said order on the ground that any subsequent decision of the jurisdictional High court or of Supreme court on the issue would render the order passed by the tribunal to be suffering from apparent mistake. In our opinion, since the application has been filed within time of limitation and therefore, the order of the Tribunal is suffering from an apparent mistake because any decision of the Hon'ble Supreme Court or Hon'ble Jurisdictional High Court passed after the passing of the order of the Tribunal would render the order passed by the Tribunal as suffering from apparent mistake. This has been propounded by the decision of the Hon'ble Apex Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. reported in [2008] 305 ITR 227 (SC). Besides Article 141 & 142 of the Constitution of India lays down that the decision of the Hon'ble Supreme Court is the law of the land. 5. Considering the facts and circumstances of the case, we are inclined to recall the order dated 04.05.2022 passed by the Tribunal. Accordingly, the Miscellaneous Application filed by the Revenue is allowed. The appeal is posted for hearing before the regular Bench on 27.07.2023. Kolkata, the 28 th June, 2023 Sd/- Sd/- [Sonjoy Sarma] [Rajesh Kumar] Judicial Member Accountant Member Dated: 28.06.2023 Bidhan (P.S.) M.A. No. 49/KOL/2022 Arising out of I.T.A. No.: 555/KOL/2021 Assessment Year: 2018-19 Gargi Poddar. Page 4 of 4 Copy of the order forwarded to: 1. DCIT, Circle-49(1), Kolkata. 2. Gargi Poddar, FD 57/1A, Vidyasagar Pally, Baligari, North 24 Parganas-700 059. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata