Assistant Commissioner Of Income Tax, Circle-1(1), Bengaluru V. Arnold Consulting Private Limited, Bengaluru

MA 7/BANG/2023

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The case revolves around a dispute concerning the disallowance of deductions for delayed payment of employee's contributions to ESI and PF by M/s. Arnold Consulting Pvt. Ltd. The revenue authorities disallowed these deductions, which led to the assessee appealing to the Income Tax Appellate Tribunal. Initially, the Tribunal ruled in favor of the assessee, citing that the disallowance was not justified as the payments were made within the due date for filing the return of income under section 139(1) of the Act. However, following a Supreme Court decision in Checkmate Services Pvt Ltd vs CIT-1, which clarified the treatment of delayed employee PF contributions, the Tribunal rectified its order, aligning with the Supreme Court's interpretation that such delays result in permanent negation of the employer's claim for deduction under section 36(1)(va) of the Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129993 (ITAT-BANGALORE)
• Duration Of Justice: 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-01-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-01-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 21-12-2022
• Other Referred Cases: CHECKMATE SERVICES PVT LTD VS CIT-1, CIT Vs. Saurashtra Kutch Stock Exchange, Honda Siel Power Products Ltd. v. CIT
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 2; 139(1); 254(2)

Judgement Text

MP No.7/Bang/2023 M/s. Arnold Consulting Pvt. Ltd., Bangalore IN THE INCOME TAX APPELLATE TRIBUNAL “B’’ BENCH: BANGALORE BEFORE SMT. BEENA PILLAI, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER M.P. No.7/Bang/2023 (Arising out of ITA No.712/Bang/2022) Assessment Year: 2017-18 The ACIT Circle-1(1)(1) Bangalore Vs. M/s. Arnold Consulting Pvt. Ltd. 1328, 1 st Floor, PJR Arcade 24 th Main, Sector 2 HSR Layout Bengaluru PAN NO : AAKCA5371K APPELLANT RESPONDENT Appellant by : Shri Pavan Kumar, D.R. Respondent by : N O N E Date of Hearing : 06.01.2023 Date of Pronouncement : 06.01.2023 O R D E R PER BEENA PILLAI, JUDICIAL MEMBER: This miscellaneous petition filed by the revenue u/s 254(2) of the Income-tax Act,1961 ['the Act' for short] seeking rectification of order of the Tribunal in ITA No.712/Bang/2022 dated 20.09.2022. 2. In the aforesaid order dated 20.09.2022, the Tribunal held that the Revenue authorities were not justified in making a disallowance on delayed payment of employee’s contribution to ESI and PF of MP No.7/Bang/2023 M/s. Arnold Consulting Pvt. Ltd., Bangalore Page 2 of 5 Rs.45,34,701/- made by the assessee beyond the due date by invoking the provisions of section 36(1)(va) of the Act, but within the due date for filing return of income u/s.139(1) of the Act. On the above issue, it is not disputed that as per the decision of the Hon’ble Supreme Court rendered in the case of CHECKMATE SERVICES PVT LTD VS CIT-1 in CIVIL APPEAL 2833/2016 vide its judgment dated 12 October 2022 decided the issue on allowability/treatment of ‘delayed’ Employee PF Contribution payment in hands of assessee under provisions of Income Tax Act and held that Section 36(1)(va) and Section 43B(b) operate on totally different equilibriums and have different parameters for due dates, i.e., employee's contribution is linked to payment before the due dates specified in the respective Acts and employer's contribution is linked to the payment before the prescribed due date for filing of return u/s. 139(1) of the Act. The result of any failure to pay within the prescribed dates also leads to different results. In the case of employee's contribution, any failure to pay within the prescribed due date under the respective PF Act or Scheme will result in negating employer's claim for deduction permanently forever u/s.36(1)(va) of the Act. On the other hand, delay in payment of employer's contribution is visited with deferment of deduction on payment basis u/s.43B of the Act and is therefore not lost totally. Therefore, as per the above decision, the disallowance made by the Revenue authorities, were fully justified. 2.1. Through this miscellaneous petition, the revenue seeks an order to reverse the order of the Tribunal dated 20.09.2022 and hold that the disallowance of deduction by the revenue authorities u/s.36(1)(va) of the Act is fully justified and dismiss the appeal of the Assessee. MP No.7/Bang/2023 M/s. Arnold Consulting Pvt. Ltd., Bangalore Page 3 of 5 2.2 We note that the issues raised by the revenue in its miscellaneous petition has been decided by the Hon’ble Supreme Court in the case of CIT Vs. Saurashtra Kutch Stock Exchange case 219 CTR (SC) 90 has held that non-consideration of the decision of the jurisdictional high court/Supreme Court constitutes mistake apparent from record and is rectifiable within the meaning of section 254(2) of the Act. In Honda Siel Power Products Ltd. v. CIT 295 ITR 466, the Hon’ble Supreme Court explained the scope of rectification powers u/s/254(2) of the Act, as follows: “Scope of the Power of Rectification 12. As stated above, in this case we are concerned with the application under section 254(2) of the 1961 Act. As stated above, the expression "rectification of mistake from the record" occurs in section 154. It also finds place in section 254(2). The purpose behind enactment of section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its Order dated 10.9.2003 allowing the Rectification Application has given a finding that Samtel Color Ltd. (supra) was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under section 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. 13. "Rule of precedent" is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2) of the Income-tax Act, 1961. When prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the present case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the coordinate bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power. We are simply MP No.7/Bang/2023 M/s. Arnold Consulting Pvt. Ltd., Bangalore Page 4 of 5 proceeding on the basis that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case.” 2.3. Article 141 of the Constitution of India provides that the law declared by Hon’ble Supreme Court shall be binding on all courts within the territory of India. The law laid down by Supreme Court operates retrospectively and is deemed to the law as it has always been unless, the Supreme Court, says that its ruling will only operate prospectively. 2.4 In the light of the law as explained above, there is a mistake apparent on record in view of the decision of the Hon’ble Supreme Court in the case of Checkmate Services Pvt.Ltd. (supra) though rendered subsequent to the order passed by the Tribunal and has to be rectified by holding that the disallowance made by the revenue authorities u/s.36(1)(va) of the Act was justified. Consequently, the appeal by the Assessee will stand dismissed. The order of the Tribunal will stand modified /rectified accordingly. 3. In the result, the miscellaneous petition filed by the revenue stands allowed. Order pronounced in the open court on 6 th Jan, 2023 Sd/- (Laxmi Prasad Sahu) Accountant Member Sd/- (Beena Pillai) Judicial Member Bangalore, Dated 6 th Jan, 2023. VG/SPS MP No.7/Bang/2023 M/s. Arnold Consulting Pvt. Ltd., Bangalore Page 5 of 5 Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order Asst. Registrar, ITAT, Bangalore.