Income Tax Appellate Tribunal - Delhi
Acit,Circle,2(2), Delhi vs Ansal Api Infrastructure Ltd , New Delhi on 2 May, 2025
IN THE INCOME TAX APPELLATE TRIBUNAL,
DELHI BENCH: 'G (Friday)' NEW DELHI
BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER
AND
SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER
M.A. No.70/Del/2023
(Arising out of ITA No.1781/Del/2022)
Assessment Year: 2018-19
ACIT, Vs. M/s. Ansal API Infrastructure
Circle-2(2), Ltd.,
Delhi 115, Ansal Bhawan 16,
Kasturba Gandhi Marg,
New Delhi
PAN: AAHCA0833H
(Appellant) (Respondent)
Assessee by None
Department by Sh. Sahil Kumar Bansal, Sr. DR
And
M.A. No.436/Del/2022
(Arising out of ITA No.1640/Del/2020)
Assessment Year: 2018-19
DCIT, Vs. LDDN Impex,
Circle-36(1), E-37, SMA, Industrial Estate,
New Delhi GT Karnal Road, Karnal,
Haryana
PAN: AACFL3601J
(Appellant) (Respondent)
Assessee by None
Department by Sh. Sahil Kumar Bansal, Sr. DR
And
M.A. No.129/Del/2023
(Arising out of ITA No.1538/Del/2021)
Assessment Year: 2018-19
DCIT, Vs. Maharishi Ayurveda Products
Circle-16(1), Pvt. Ltd.,
M.A Nos. 70/Del/2023; 436/Del/2022;
129/Del/2023 and 202/Del/2023
Delhi Flat no. 40, Pocket -H, Ground
Floor, Sarita Vihar,
Delhi
PAN: AACCM5403A
(Appellant) (Respondent)
Assessee by Sh. Sanjay Kumar, CA
Sh. Akarsh Garg, Adv.
Sh. Archit Gupta, Adv.
Department by Sh. Sahil Kumar Bansal, Sr. DR
And
M.A. No.202/Del/2023
(Arising out of ITA No.1899/Del/2021)
Assessment Year: 2019-20
ITO, Vs. Breez Builders & Developers
Ward-5(1), Private Limited,
Delhi 903-905, JMD Megapolis
Sohna Road, Sector-48,
Gurgaon, Haryana
PAN: AAECB8383N
(Appellant) (Respondent)
Assessee by Sh. Amit Khattar, CA
Department by Sh. Sahil Kumar Bansal, Sr. DR
Date of hearing 02.05.2025
Date of pronouncement 02.05.2025
ORDER
PER SATBEER SINGH GODARA, JM
These Revenue's four miscellaneous applications M.A Nos.
70/Del/2023; 436/Del/2022; 129/Del/2023 and 202/Del/2023, seek to recall/rectify the tribunal's as many corresponding orders dated 25.08.2022, 19.07.2022, 28.02.2022 and 28.02.2022
2|Page M.A Nos. 70/Del/2023; 436/Del/2022;
129/Del/2023 and 202/Del/2023 respectively, deciding the issue of ESI/PF disallowance in assessees' favour thereby rejecting the department's contention.
2. Heard the Department as well as assessees' counsel.
3. Learned departmental representative Sh. Bansal vehemently argues that the tribunal's impugned identical findings deleting section 36(1)(va) disallowance(s) of ESI/PF are not sustainable in law going by their lordships' landmark decision in Checkmate Services Pvt Ltd Vs. CIT [2022] 143 taxmann.com 278 (SC); and, therefore, the same need to be recalled/rectified. He could hardly dispute the clinching fact that their lordships' above decision has come much after the tribunal's respective orders. That being the case, we find that the tribunal's learned co-ordinate bench's decision in DCIT Vs. Innovision Ltd., M.A. No. 31/Del/2023 has decided the very issues in assessee's favour and against the department as follows:
"2. As per respective the M.As, it is the contention of the Revenue that the ITAT had allowed the claim of the assessee towards belated deposit of employees contribution towards PF/ESIC. The issue stands subsequently settled in favour of the Revenue by the Hon'ble Supreme Court in the case of Checkmate Services P. Ltd. vs CIT 143 Taxmann.com 178 (SC). The Revenue thus seeks recalling the respective Tribunal orders passed prior to the delivery of the judgement in Checkmate Services P. Ltd. vs CIT (supra).
3. Identical issue has been adjudicated by the Co-ordinate Bench of the Tribunal in M.A. No.374/Del/2022 [in ITA No.754/Del/2022 for
3|Page M.A Nos. 70/Del/2023; 436/Del/2022;
129/Del/2023 and 202/Del/2023 the Assessment Year 2019-20] order dated 21.03.2025 which is extracted hereunder:-
"By way of this rectification application, the Revenue under Section 254(2) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') has requested for recalling of the Tribunal's order in ITA No.754/Del/2022 dated 19.05.2022.
2. The application in hand has been filed by the Revenue on the basis that the appeal of the assessee was allowed on the PF and ESI issue and now by virtue of the judgement of the Hon'ble Supreme Court in Checkmate Services P. Ltd. vs. CIT, 143 Taxmann.com 178, the issue is covered in favour of the Revenue and the disallowance was justified. The Hon'ble Bombay High Court in Writ Petition 17175 OF 2024 Infantry Security and Facilities through, proprietor Tukaram M. Surayawanshihas Versus The Income Tax Officer, Ward 4(5) order dated 3rd December held as follows:-
"14. In our clear opinion, the question would be required to be answered against the Revenue and in favour of the assessee. The reasons for which we discuss hereunder. In such context, at the outset, we may observe that the petitioner had succeeded before the Tribunal on the basis of the position in law as it prevailed on the day the decision was rendered on the petitioner's appeal on 26 July 2022. Subsequent to the said orders passed by the Tribunal, on 12 October 2022, the Supreme Court rendered its decision in "Checkmate Services Private Limited" (Supra), whereby the Supreme Court held that the deduction of the employees' share can be allowed under Section 36(1)(va) of the IT Act, only if such share was deposited before the time limit under the respective statutes and not before the due date under Section 139(1) of the IT Act. In the fact situation, certainly it cannot be said that the Tribunal has overlooked the existing position in law, as laid down by the Supreme Court or the High Court, so as to bring about a situation that the law declared by the Supreme Court was not followed by the Tribunal and/or the decision of the Tribunal is contrary to the law as laid down by the Supreme Court. Such decision of the Supreme Court which never existed when the Tribunal passed the original order could never have been applied by the Tribunal, and hence it cannot be said that there was any mistake on the face of the record, so as to confer jurisdiction on the Tribunal to exercise its jurisdiction under Section 254(2) of the IT Act."
3. In the light of the above, we noted that on the issue of late payment of PF and ESI under the respective statutes, beyond the due date as prescribed under the statutes, is highly debatable issue, because
4|Page M.A Nos. 70/Del/2023; 436/Del/2022;
129/Del/2023 and 202/Del/2023 following decisions of Hon'ble High Courts have decided in favour of the assessee:-
(i) CIT Vs. Sabari Enterprises (2008) 298 ITR 141 (Karn), affirmed in (2009) 319 ITR 306 (SC).
(ii) CIT Vs. Nipso Polyfabriks Ltd. (2013) 350 ITR 327 (HP).
(iii) CIT Vs. Mark Auto Industries Ltd. - (2013) 358 ITR 43 (Punj).
(iv) CIT Vs. State Bank of Bikaner & Jaipur Jaipur Vidyut Vitaran Nigam Ltd. (2014) 363 ITR 70 (Raj).
(v) CIT Vs. Jaipur Vidyut Vitaran Nigam Ltd. Rajasthan Rajya Vidyut Utpadan Nigam Ltd. (2014) 363 ITR 307 (Raj).
(vi) CIT Vs. Kichha Sugar Co.Ltd. (2013) 356 ITR 351 (Uttarakhand).
(vii) CIT Vs. Hemla Embroidery Mills (P) Ltd. (2014) 366 ITR 167, 169 (Punj).
4. Following Hon'ble High Courts have decided in favour of the Revenue :-
(i) CIT Vs. Gujarat State Road Transport Corporation (2014) 366 ITR 170, 186 (Guj).
(ii) CIT Vs. Merchem Ltd. (2015) 378 ITR 443, 461 (Ker).
(iii) Popular Vehicles & Services Pvt.Ltd. Vs. CIT (2018) 406 ITR 150 (Ker).
(iv) CIT Vs. Harrisons Malayalam Ltd. (2019) 414 ITR 718 (Ker).
5. It means that there is a debate between the High Courts whether the belated payments, beyond the due date provided under the respective statutes is the due date of making payment of PF & ESI or the due date of filing of return of income under Section 139(1) of the Act. On this proposition, since the issue became highly debatable and Hon'ble Calcutta High Court in Jiyajeerao Cotton Mills Ltd. Vs. ITO (1981) 130 ITR 710, 731(Cal) has narrated that the principle of retrospective legislation is not applicable to the decisions of the Supreme Court declaring the law or interpreting a provision in a statute. The law is laid down or a provision in a statute is interpreted by the Supreme Court only when there is a debate or doubt on the interpretation of any provision of a statute requiring interpretation by the Supreme Court or when there is a conflict of judicial opinion on a provision of a statute between the different High Courts of India which is required to be resolved and settled by the Supreme Court. The law laid down by the Supreme Court cannot be said to have retrospective operation in the sense that although a debate or doubt or a conflict of judicial opinion is resolved and settled by the Supreme Court, yet still that does not obliterate the existence of such debate or doubt or conflict that existed prior to the decision of the Supreme Court setting at rest such debate or doubt or conflict.
6. In view of the above, we are of the view that only a glaring and obvious mistake of law can be corrected under Section 254(2) of the
5|Page M.A Nos. 70/Del/2023; 436/Del/2022;
129/Del/2023 and 202/Del/2023 Act but a decision on a debatable point of law cannot be corrected by way of rectification. If the rectification was made at a time when the issue was debatable, it cannot be supported by reference to the Supreme Court's decision settling the issue which is rendered after the rectification. No contrary decision was pointed out before us during the course of hearing by the Revenue. Hence, we are of the view that the Revenue's miscellaneous application deserves to be dismissed.
7. In the result, the miscellaneous application of the Revenue is dismissed."
4. We accordingly reject the Revenues four instant applications in very terms.
5. These Revenue's four instant miscellaneous applications M.A Nos. 70/Del/2023; 436/Del/2022; 129/Del/2023 and 202/Del/2023 are dismissed in above terms. Copy of this common order be placed in the respective case files.
Order pronounced in the open court on 2nd May, 2025 Sd/- Sd/-
(S. RIFAUR RAHMAN) (SATBEER SINGH GODARA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 2nd May, 2025.
RK/-
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR
Asst. Registrar, ITAT, New Delhi
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