Assistant Commissioner of Income-Tax, Circle -1, , Nashik V. Sunsuba Powerdeal Ltd, Nashik

MA 73/PUN/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0899 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-10-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 27-03-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 139(1)

Judgement Text

आयकर अपीलीय अधिकरण “बी” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER धिधिि आिेदन सं. / MA No.73/PUN/2023 (Arising out of ITA No. 666/PUN/2021) धनिाारण िर्ा / Assessment Year : 2018-19 Asstt. Commissioner of Income Tax, Circle – 1, Nashik .......अपीलार्थी / Appellant बनाम / V/s. Sunsuba Powerdeal Ltd., 29A, First Floor, Vasant Market, Canada Corner, Near Dongare Vasati Gruha, Nashik – 422005 PAN : AARCS0951J ......प्रत्यर्थी / Respondent Assessee by : Shri Sanket M. Joshi Revenue by : Shri Ajay Modi सुनवाई की तारीख / Date of Hearing : 06-10-2023 घोषणा की तारीख / Date of Pronouncement : 09-10-2023 आदेश / ORDER PER S.S. VISWANETHRA RAVI, JM : This Miscellaneous application by the Revenue is directed against the captioned order passed by the Tribunal on 01-09-2022 in relation to the assessment year 2018-19. 2. The facts of the case, in a nutshell, are that the Assessing Officer (AO) made disallowance on the ground that the assessee deposited 2 MA No. 73/PUN/2023, A.Y. 2018-19 belatedly the Employees’ share of EPF and ESI etc. The Tribunal in its order u/s. 254(1) observed that the depositing of the Employees’ share was prior to the due date of filing the return u/s. 139(1) and hence deduction under section 36(1)(va) was allowed. In reaching this conclusion, the Tribunal primarily relied on the judgment of Hon’ble Himachal Pradesh High Court in CIT Vs. Nipso polyfabriks Ltd. (2013) 350 ITR 327 (HP). 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. 3. We have heard both the parties and perused the material available on record. The admitted fact in this case is that the Tribunal allowed deduction u/s. 36(1)(va) of the Act on the premise that the deposits were made prior to the due date u/s 139(1) of the Act. Such a view has since been overturned by the Hon’ble Supreme Court in Checkmate Services P. Ltd. & Ors. VS. CIT & Ors. (2022) 448 ITR 518 (SC), rendering the earlier order passed u/s. 254(1) as erroneous, but however, the ld. AR submits that there were mistakes in audit report which requires examination by the AO. The ld. AR drew our attention to the legal compilation at Sr. No. 5 by referring to para 17 in the case of Cementile Industries & Ors. reported in 220 TTJ 801 (Pune-Trib.) and argued that in similar circumstances, the Tribunal remanded the issue to the file of AO for his fresh examination for verification of factual position regarding the mistakes in audit report. On perusal of the said order, we note that considering the assessee’s 3 MA No. 73/PUN/2023, A.Y. 2018-19 submissions about the mistakes in audit report, the Tribunal directed the AO to examine the said mistakes, if warranted, as per the correct figures to make disallowance. Therefore, following the same, we deem it proper to recall the order dated 01-09-2022 passed in ITA No. 666/PUN/2021 for A.Y. 2018-19 in remanding the issue to the file of AO for its fresh consideration. The AO shall examine the mistakes in audit report and pass order, in accordance with law. Thus, the Miscellaneous Application filed by the Revenue is allowed for statistical purpose. 4. In the result, the Miscellaneous Application is allowed for statistical purpose. Order pronounced in the open court on 09 th October, 2023. Sd/- Sd/- (Inturi Rama Rao) (S.S. Viswanethra Ravi) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; दिनाांक / Dated : 09 th October, 2023. रदव आदेश की प्रधिधलधप अग्रेधर्ि / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The Pr. CIT concerned, Pune. 4. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, “बी” बेंच, पुणे / DR, ITAT, “B” Bench, Pune. 5. गार्ड फ़ाइल / Guard File. //सत्यादपत प्रदत// True Copy// आिेशानुसार / BY ORDER, वररष्ठ दनजी सदचव / Sr. Private Secretary आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune