Deputy Commissioner of Income-Tax, CPC, , Bengaluru V. Supreme Equipments P Ltd, Nashik

MA 68/PUN/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 1095 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-03-2024
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-02-2024
• Assessment Year: 2018-2019
• Appeal Filed On: 27-03-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R.Y. BALAWADE
• Assessee Lawyers: VIRTUE OF CERTAIN JUDGMENTS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE “A” BENCH : PUNE BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER M.A.No.68/PUN./2023 Arising out of I.T.A.No.254/PUN./2021- Assessment Year 2018-2019 The DCIT, CPC, Bengaluru. vs. Supreme Equipments Pvt. Ltd., B-19, Supreme Equipment Pvt. Ltd., NICE, MIDC, Satpur, Nashik – 422 007. Maharashtra. PAN AAOCS5679N (Applicant) (Respondent) For Revenue : Shri R.Y. Balawade, Addl. CIT For Assessee : -None- Date of Hearing : 15.03.2024 Date of Pronouncement : 19.03.2024 ORDER PER DR. DIPAK P. RIPOTE, A.M. : This Revenue’s miscellaneous application M.A.No.68/PUN./2023 filed u/s.254(2) of the of the Income Tax Act, 1961 (in short "the Act"), seeks to recall/rectify our order dated 19.09.2022 allowing assessee’s main appeal ITA.No.254/PUN./2021 for assessment year 2018-2019. Case called twice. None appears at assessee’s behest. It is accordingly proceeded ex-parte. 2. It emerges at the outset that this tribunal’s impugned order dated 19.09.2022 has reversed both the 2 MA.No.68/PUN./2023 learned lower authorities action invoking sec.sec.36(1)(va) of the Act disallowing a sum of Rs.1,80,649/- on account of assessee’s failure in not having paid/remitted the corresponding dues of employee’s contribution towards ESI & PF within the time allowed as per the respective Act. There would hardly be any dispute that the hon’ble apex court’s recent landmark decision in Checkmate Services P. Ltd. & Ors. vs. CIT & Ors. (2022) 448 ITR 518 (SC) has settled the law that such a disallowance is very much warranted as the concerned assessee has to remit the same before the due date under the corresponding statue(s). That being the case, we treat our impugned order has an apparent mistake u/sec.254(2) of the Act and recall our order dated 19.09.2022 in very terms. 3. Coupled with this tribunal’s recent order in M.A.No.50/PUN./2023 in ITA.No.405/Pun./2021 dated 04.08.2023 DCIT vs. Shankar Morappa & Co. Pune has already accepted the Revenue’s very contentions as under : “2. The facts of the case are that the Assessing Officer (AO) made disallowance of Rs.10,54,797/- in the intimation u/s.143(1) of the Act on the ground that the assessee deposited the Employees’ share of EPF and ESI etc. belatedly. The Tribunal in its order u/s.254(1) observed that the Employees’ share was deposited prior to the due date of filing return u/s.139(1) and hence deduction was allowable 3 MA.No.68/PUN./2023 under section 36(1)(va) of the Act. In reaching this conclusion, the Tribunal relied on the judgment of Hon’ble Himachal Pradesh High Court in CIT Vs. Nipso polyfabriks Ltd. (2013) 350 ITR 327 (HP). 3. The Revenue has moved the instant Miscellaneous Application urging that the view taken by the Hon’ble Himachal Pradesh High Court in Nipso polyfabriks Ltd. has since been overruled by the Hon’ble Supreme Court in Checkmate Services P. Ltd. & Ors. VS. CIT & Ors. (2022) 448 ITR 518 (SC), holding that the deduction of the Employees’ share can be allowed u/s.36(1)(va) only if it is deposited before the time limit under the respective statutes and not by the due date u/s.139(1) of the Act. It was, thus, urged by the ld. DR that the order earlier passed by the Tribunal granting the deduction, required rectification. No serious objection was taken by the ld. AR to the grievance of the Revenue. 4. We have heard the rival submissions and perused the relevant material on record. There is no dispute on the fact the law prevalent at that time of passing the order u/s.254(1) was in favour of the assessee by virtue of certain judgments, including Nipso polyfabriks Ltd., granting deduction 4 MA.No.68/PUN./2023 u/s.36(1)(va) of the employees’ share of EPF etc. even if the deposit was made after the due date under respective Acts but before the time limit provided for filing the return u/s.139(1) of the Act. Such favourable view has since been reversed by the Hon’ble Supreme Court in the case of Checkmate Services P. Ltd.(SC). In view of the latest judgment of the Hon’ble Supreme Court, which is binding under Article 141 of the Constitution, the benefit of deduction allowed by the Tribunal in its order u/s 254(1), requires rectification. Making necessary rectification, we hold that the disallowance made by the AO has to be sustained. It is ordered accordingly. 5. In the result, the Miscellaneous Application is allowed.” 4. We thus allow the Revenue’s instant M.A.No.68/PUN./2023 in same terms. Since the miscellaneous application of the Revenue is allowed by respectfully following the decision of hon’ble apex court’s recent landmark decision in Checkmate Services P. Ltd. (supra), consequently, the appeal I.T.A.No.254/PUN./2021 filed by the assessee which was allowed by this tribunal vide order dated 19.09.2022 earlier, is now dismissed. A copy of 5 MA.No.68/PUN./2023 this order be placed in the respective appeal file of the assessee. Order pronounced in the open Court on 19.03.2024. Sd/- Sd/- [SATBEER SINGH GODARA] [DR. DIPAK P. RIPOTE] JUDICIAL MEMBER ACCOUNTANT MEMBER Pune, Dated 19 th March, 2024 VBP/- Copy to 1. The applicant 2. The respondent 3. The CIT(A), Pune concerned. 4. The Pr. CIT, Pune concerned. 4. D.R. ITAT, Pune “A” Bench, Pune. 5. Guard File. //By Order// //True Copy // Assistant Registrar, ITAT, Pune Benches, Pune.