Income Tax Appellate Tribunal - Pune
Income Tax Officer, Ward-1, ... vs Prakash Dhondiram Koli, Kolhapur on 4 September, 2024
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE "B" BENCH : PUNE
BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER
AND
SHRI G D PADMAHSHALI, ACCOUNTANT MEMBER
M.A.No.239/PUN./2023
Arising out of
I.T.A.No.621/PUN./2023 - Assessment Year 2018-2019
Shri Prakash Dhondiram Koli,
At & Post June Pargaon, Tal
The Income Tax Officer, Hatkannagale, Dist. Kolhapur
Ward-1, ICHALKARANJI. vs. PAN AZHPK7510P
Maharashtra.
(Applicant) (Respondent)
For Revenue : Shri Pramod S. Shingte
For Revenue : Shri Shashank Deogadkar
Date of Hearing : 07.06.2024
Date of Pronouncement : 04.09.2024
ORDER
PER SATBEER SINGH GODARA, J.M. :
This Revenue's miscellaneous application M.A.No.239/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 10.10.2022 allowing assessee's main appeal ITA.No.621/PUN./2021 for assessment year 2018-2019.
2. Delay of 116 days in filing the instant miscellaneous application is condoned as per assessee's solemn averments in light of Collector, Land Acquisition vs., MST Katiji [1987] 167 ITR 471 (SC) having settled the law long back that all such 2 M.A.No.239/PUN./2023 technical aspects must make a way for the cause of substantial justice.
3. Coming to the Revenue's sole substantive grievance pleaded in the instant miscellaneous application that the tribunal has committed an apparent mistake in deleting the impugned disallowance(s) thereby holding that the corresponding PF & ESI dues had been deposited before the due date of filing return u/sec.139(1) of the Act than under the corresponding statute. We note that the same issue is no more res integra in light of 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 against the taxpayer. 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 10.10.2022 in very terms.
4. 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 3 M.A.No.239/PUN./2023 the Employees' share was deposited prior to the due date of filing return u/s.139(1) and hence deduction was allowable 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) 4 M.A.No.239/PUN./2023 was in favour of the assessee by virtue of certain judgments, including Nipso polyfabriks Ltd., granting deduction 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."
5. We thus allow the Revenue's instant M.A.No.239/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.621/PUN./2021 filed by the assessee which was allowed by this tribunal vide 5 M.A.No.239/PUN./2023 order dated 10.10.2022 earlier, is now dismissed. A copy of this order be placed in the respective appeal file of the assessee.
Order pronounced in the open Court on 04.09.2024.
Sd/- Sd/-
[GD PADMAHSHALI] [SATBEER SINGH GODARA]
ACCOUNTANT MEMBER JUDICIAL MEMBER
Pune, Dated 04th September, 2024
VBP/-
Copy to
1. The appellant
2. The respondent
3. The Pr. CIT, Pune concerned
4. D.R. ITAT, "B" Bench, Pune.
5. Guard File.
//By Order//
//True Copy //
Sr. Private Secretary, ITAT, Pune Benches, Pune.