WIRTGEN INDIA PRIVATE LIMITED,PUNE V. DEPUTY COMMISSIONER OF INCOME TAX, CPC, BANGALORE

MA 120/PUN/2023

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The case involves Wirtgen Indian Pvt. Ltd., which filed a Miscellaneous Application to recall an order of the Income Tax Appellate Tribunal that had dismissed their appeal due to a significant delay in filing. The original appeal challenged an upward adjustment of Rs.12,69,969 made by the DCIT, Bengaluru, concerning delayed payments of employees' contributions to PF and ESIC. The Tribunal initially dismissed the appeal, aligning with a Supreme Court decision in Checkmate Services P. Ltd. & Ors. vs. CIT & Ors., without considering the specific circumstances of Wirtgen Indian Pvt. Ltd., which included a technical glitch and payments made within a grace period.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 32520 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-08-2024
• Assessment Year: 2018-2019
• Appeal Filed On: 17-05-2023
• Other Referred Cases: Checkmate Services P. Ltd. & Ors. VS. CIT & Ors.
• Laws Referred To: Income Tax Act, 1961, General Clauses Act, 1897
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOURABH NAYAK
• Assessee Lawyers: KISHOR B PHADKE
• Section: 254(2); 10; 20

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “C”, PUNE BEFORE SHRI R. K. PANDA, VICE PRESIDENT AND MS ASTHA CHANDRA, JUDICIAL MEMBER MA No.120/PUN/2023 (Arising out of ITA No.560/PUN/2022) Assessment Year : 2018-19 Wirtgen Indian Pvt. Ltd. Gate No.301, 302, Bhandagaon Khor Road, Taluka Daund, Dist. Pune – 412214 Vs. DCIT, CPC, Bengaluru PAN : AAACW2816R (Applicant) (Respondent) Assessee by : Shri Kishor B Phadke Department by : Shri Sourabh Nayak Date of hearing : 09-08-2024 Date of pronouncement : 04-11-2024 O R D E R PER R. K. PANDA, VP : The assessee through this Miscellaneous Application has requested the Tribunal to recall the order passed by it dismissing the appeal of the assessee on the ground that the case of the assessee is squarely covered by the decision of the Hon'ble Supreme Court in the case of Checkmate Services P. Ltd. & Ors. VS. CIT & Ors. 2. The Ld. Counsel for the assessee referring to the contents of the Miscellaneous Application submitted that against the order of the CPC, Bangalore making an upward adjustment of Rs.12,69,969/- on account of delay in payment of 2 MA No.120/PUN/2023 employees’ contribution towards PF and ESIC, the assessee preferred an appeal before the CIT(A) with a delay of 622 days. He submitted that the CIT(A) without condoning the delay, dismissed the appeal as invalid on the ground that the same was not filed within the stipulated time as per the statute. Against the order of the CIT(A) dismissing the appeal on account of delay, the assessee preferred an appeal before the Tribunal. However, on the date of hearing i.e. 21.11.2022, none appeared on behalf of the assessee but the Tribunal decided the appeal of the assessee along with a bunch of 20 more appeals by following the decision of the Hon'ble Supreme Court in the case of Checkmate Services P. Ltd. & Ors. VS. CIT & Ors (supra). 3. He submitted that in the instant case, the assessee has deposited an amount of Rs.11,80,699/- and Rs.220/- towards employees’ contribution to Provident Fund and ESIC respectively on 17.07.2017 instead of the due date i.e. 15.07.2017 owing to technical glitches faced by the assessee in the portal. Further, 15.07.2017 and 16.07.2017 being Saturday and Sunday respectively, the assessee deposited the amount on 17.07.2017 which is also within the grace period of 5 days from the date of 15.07.2017. However, the Tribunal decided the appeal with bunch of another 20 appeals on the ground that the facts of the assessee are identical to the facts of other cases. Since the facts of the instant case are different from the facts of the cases decided by the Tribunal, therefore, a mistake apparent from record has occurred which requires rectification u/s 254(2) of the Income Tax Act, 1961. He 3 MA No.120/PUN/2023 accordingly submitted that the order of the Tribunal be recalled and the appeal be heard afresh. 4. The Ld. DR on the other hand strongly opposed the Miscellaneous Application filed by the assessee and submitted that although the CIT(A) has dismissed the appeal on account of delay in filing of the appeal by 622 days, the fact remains that the CPC had made an upward adjustment of Rs.12,69,969/- on account of delay in depositing the employees’ contribution of PF and ESIC. Therefore, there is no need to recall the order of the Tribunal and the Miscellaneous Application should be dismissed. 5. We have heard the rival arguments made by both the sides and perused the record. We find that the assessee has filed the appeal before the Tribunal basically challenging the order of the CIT(A) in dismissing the appeal on account of delay in filing of the appeal by 622 days and thereby confirming the addition of Rs.12,69,969/- made by the DCIT, Bangalore. A perusal of the order of the Tribunal shows that the case of the assessee was decided along with a bunch of another 20 appeals i.e. total 21 appeals. A perusal of the grounds raised by the assessee before the Tribunal shows that it was against the order of the CIT(A) dismissing the appeal on account of delay in filing of the appeal by 622 days and thereby confirming the addition of Rs.12,69,969/- proposed by the DCIT, CPC, Bangalore. A perusal of the submission made by the assessee along with the evidence also shows that the payments were made on 17.07.2017 as against the stipulated date of 15.07.2017 and 15.07.2017 and 16.07.2017 are Saturday and 4 MA No.120/PUN/2023 Sunday respectively, and therefore, as per section 10 of the General Clauses Act, 1897 if the last date prescribed for an act to be done falls on a day on which the office is closed then the act shall be considered as done in due time if it is done on the next day afterwards on which the office is open. Even otherwise also, prima facie it appears that the payment is made within the grace period of 5 days i.e. before 20.07.2017 as prescribed under the PF and ESI Acts. Further, the grounds before the Tribunal were against dismissal of the order by the CIT(A) on account of delay in filing of the appeal. It is also an admitted fact that none appeared on behalf of the assessee and therefore, it is an ex-parte order by the Tribunal. Thus, in our opinion, a mistake appeared on record has occurred which requires rectification. We, therefore, deem it proper to recall the order of the Tribunal and the appeal is fixed for hearing on 02.12.2024. No separate notice of hearing shall be issued by the Registry as the above order is deemed to be service of notice for hearing. The Miscellaneous Application filed by the assessee is accordingly allowed. 6. In the result, the Miscellaneous Application filed by the assessee is allowed. Order pronounced in the open Court on 4th November, 2024. Sd/- Sd/- (ASTHA CHANDRA) (R. K. PANDA) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; दिन ांक Dated : 4th November, 2024 GCVSR 5 MA No.120/PUN/2023 आदेश की प्रतितिति अग्रेतिि/Copy of the Order is forwarded to: 1. अपीलार्थी / The Appellant; 2. प्रत्यर्थी / The Respondent 3. 4. The concerned Pr.CIT, Pune DR, ITAT, ‘C’ Bench, Pune 5. गार्ड फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अधिकरण ,पुणे / ITAT, Pune S.No. Details Date Initials Designation 1 Draft dictated on 01.11.2024 Sr. PS/PS 2 Draft placed before author 01.11.2024 Sr. PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member AM/AM 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of Order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order "