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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC” MUMBAI
Before: SHRI KULDIP SINGH & SHRI OM PRAKASH KANT
By way of this Miscellaneous By way of this Miscellaneous Application, the Revenue is , the Revenue is seeking rectification/ tion/recall of the order of the Tribunal dated recall of the order of the Tribunal dated 30.05.2022 passed in 30.05.2022 passed in for assessment year 30.05.2022 passed in ITA No. 186/Mum/2022 for assessment year 2017-18.
Before Before Before us, us, us, the the the Ld. Ld. Ld. Departmental Departmental Departmental Representative Representative Representative (DR) (DR) (DR) submitted that order of the Tribunal submitted that order of the Tribunal was received by the Pr. CIT was received by the Pr. CIT-2, Mumbai Mumbai Mumbai on on on 20.09.2022 20.09.2022 20.09.2022 and and and therefore, therefore, therefore, the the the Miscellaneous Application filed on 20.01.2023 is well within the filed on 20.01.2023 is well within the limitation limitation period for filing the miscellaneous application u/s 254(2) of the Act i.e. six for filing the miscellaneous application u/s 254(2) of the Act i.e. for filing the miscellaneous application u/s 254(2) of the Act i.e. month from the date on which month from the date on which this order came to the knowledge of this order came to the knowledge of the Revenue as held by the Hon’ble Bombay High Court in the case the Revenue as held by the Hon’ble Bombay High Court in the case the Revenue as held by the Hon’ble Bombay High Court in the case of Daryapur Shetkari Sahkari Ginning and Pressing Factory v. Daryapur Shetkari Sahkari Ginning and Pressing Factory v. Daryapur Shetkari Sahkari Ginning and Pressing Factory v. ACIT [2021] 123 taxmann.com 301 (Bombay) ACIT [2021] 123 taxmann.com 301 (Bombay). Accordingly, the Accordingly, the Miscellaneous Application Miscellaneous Application is admitted for adjudication. ed for adjudication.
We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in dispute. In this case, the Tribunal had allowed the appeal of the dispute. In this case, the Tribunal had allowed the appeal of the dispute. In this case, the Tribunal had allowed the appeal of the assessee on the issue of claim of assessee on the issue of claim of employee’s contribution to PF/ESI contribution to PF/ESI deposited after due date under the deposited after due date under the relevant Act but before filing of but before filing of return of income following return of income following the decision of the Hon’ble Bombay High the decision of the Hon’ble Bombay High Court in the case of CIT v. Ghatga Patil Transport Ltd. in Income CIT v. Ghatga Patil Transport Ltd. in Income CIT v. Ghatga Patil Transport Ltd. in Income Tax Appeal No. 1002 & 1034 of 2012 Tax Appeal No. 1002 & 1034 of 2012 and decision of the decision of the Tribunal
M/s Magnesita Refractories Pvt. Ltd. M/s Magnesita Refractories Pvt. Ltd. 3 M.A No. 70/Mum/2023 & M.A No. 70/Mum/2023 & ITA No. 186/Mum/2022 in the case of Kalpesh Kalpesh Synthetic Pvt. Ltd. v. DCIT Pvt. Ltd. v. DCIT ITA No. 1785/Mum/2021 for assessment year 2018 for assessment year 2018-19. However, we find 19. However, we find that the Hon’ble Supreme Court in order dated 12.10.2022 in the that the Hon’ble Supreme Court in order dated 12.10.2022 in the that the Hon’ble Supreme Court in order dated 12.10.2022 in the case of Checkmate Checkmate Checkmate Services Services Services Pvt. Pvt. Pvt. Ltd. Ltd. Ltd. v. v. v. CIT CIT CIT in in in 143 143 143 taxmann.com 178 (SC) taxmann.com 178 (SC) has held that employee’s contribution to s contribution to PF/ESI deposited/paid after due date under the respective Act is PF/ESI deposited/paid after due date under the respective Act PF/ESI deposited/paid after due date under the respective Act not deductible u/s 36(1)(va) of the Act. Since, the decision of the not deductible u/s 36(1)(va) of the Act. Since, the decision of the not deductible u/s 36(1)(va) of the Act. Since, the decision of the Hon’ble Supreme Court operates from the da Hon’ble Supreme Court operates from the date on which te on which relevant provisions have been have been introduced under the relevant Act and relevant Act and therefore, this being a mistake of the law therefore, this being a mistake of the law, we recall the order of the we recall the order of the Tribunal Tribunal Tribunal for for for adjudication. adjudication. adjudication. Accordingly, Accordingly, Accordingly, the the the Miscellaneous Application of the Revenue is allowed. of the Revenue is allowed.
Since both parties aggrieved for argu Since both parties aggrieved for arguing the appeal on the the appeal on the issue in dispute therefore, n dispute therefore, both parties were heard heard on merit of appeal.
Before Before Before us, us, us, the the the Ld. Ld. Ld. Departmental Departmental Departmental Representative Representative Representative (DR) (DR) (DR) submitted that in view of the Tribunal in the case of M/s. Salasar submitted that in view of the Tribunal in the case of submitted that in view of the Tribunal in the case of Balaji Ship Breakers Pvt. Ltd. Balaji Ship Breakers Pvt. Ltd. in A No. 1947/Mum/2021for assessment year 2018 t year 2018-19, the Tribunal has held that the claim of 19, the Tribunal has held that the claim of the assessee being incorrect claim the assessee being incorrect claim and hence same is liable to be same is liable to be disallowed u/s 143(1) of the Act. The relevant finding of the disallowed u/s 143(1) of the Act. The relevant finding of the disallowed u/s 143(1) of the Act. The relevant finding of the Tribunal(supra) is reproduced as under: reproduced as under:
“7. Ergo, once there is incorrect claim apparent from the 7. Ergo, once there is incorrect claim apparent from the 7. Ergo, once there is incorrect claim apparent from the return of income, then the section provides that adjustment return of income, then the section provides that adjustment return of income, then the section provides that adjustment
M/s Magnesita Refractories Pvt. Ltd. M/s Magnesita Refractories Pvt. Ltd. 4 M.A No. 70/Mum/2023 & M.A No. 70/Mum/2023 & ITA No. 186/Mum/2022 has to be made. The Auditor in the audited accounts only has to be made. The Auditor in the audited accounts only has to be made. The Auditor in the audited accounts only points out the date of payment and the due date prescribed points out the date of payment and the due date prescribed points out the date of payment and the due date prescribed under the respective Ac under the respective Act (PF and ESI Act) and it is incumbent t (PF and ESI Act) and it is incumbent upon the assessee that, while computing the income he has upon the assessee that, while computing the income he has upon the assessee that, while computing the income he has to disallow the said payment, if it has been made beyond the to disallow the said payment, if it has been made beyond the to disallow the said payment, if it has been made beyond the due date. Thus, in view of the judgment of Hon’ble Apex due date. Thus, in view of the judgment of Hon’ble Apex due date. Thus, in view of the judgment of Hon’ble Apex Court, such claim cannot be allowed as it Court, such claim cannot be allowed as it is an incorrect is an incorrect claim and therefore, it falls within scope of prima facie claim and therefore, it falls within scope of prima facie claim and therefore, it falls within scope of prima facie adjustment u/s.143(1). Accordingly, we confirm the order of adjustment u/s.143(1). Accordingly, we confirm the order of adjustment u/s.143(1). Accordingly, we confirm the order of the ld. CIT (A) holding that once the Hon’ble Apex Court has the ld. CIT (A) holding that once the Hon’ble Apex Court has the ld. CIT (A) holding that once the Hon’ble Apex Court has settled the issue, then that is the law which is applicable settled the issue, then that is the law which is applicable settled the issue, then that is the law which is applicable retrospectively and therefore, any such claim of payment on etrospectively and therefore, any such claim of payment on etrospectively and therefore, any such claim of payment on account of employees’ contribution to PF & ESI beyond the account of employees’ contribution to PF & ESI beyond the account of employees’ contribution to PF & ESI beyond the due dates given in the respective acts as given in 36(1)(va) is due dates given in the respective acts as given in 36(1)(va) is due dates given in the respective acts as given in 36(1)(va) is incorrect claim which needs to be disallowed / adjusted even incorrect claim which needs to be disallowed / adjusted even incorrect claim which needs to be disallowed / adjusted even within the sco within the scope of prima facie dispute u/s.143(1). Therefore, pe of prima facie dispute u/s.143(1). Therefore, disallowance has rightly been made by CPC, Bangalore disallowance has rightly been made by CPC, Bangalore disallowance has rightly been made by CPC, Bangalore.” 5.1 In view of the above In view of the above decision of Tribunal (supra) decision of Tribunal (supra), even the claim of employee’s contribution to PF/ESI paid after due date s contribution to PF/ESI paid after due date s contribution to PF/ESI paid after due date under the relevant Act is under the relevant Act is not allowable u/s 143(1) of the Act. allowable u/s 143(1) of the Act. Therefore, the grounds of appeal are accordingly dismissed. Therefore, the grounds of appeal are accordingly dismissed. Therefore, the grounds of appeal are accordingly dismissed.
In the result, the the Miscellaneous Application of the Revenue is of the Revenue is allowed, whereas the the appeal of the assessee is dismissed. appeal of the assessee is dismissed.