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Income Tax Appellate Tribunal, ‘A’ BENCH, KOLKATA
Before: Shri Rajpal Yadav, Vice-(KZ) & Shri Rajesh Kumar
Per Rajpal Yadav, Vice-President (KZ):- In this appeal, Revenue has challenged the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal
(A.Y. 2019-2020) Shibdas Sen Centre (NFAC), Delhi dated 2nd August, 2022 passed for Assessment Year 2019-20.
This appeal has been presented in the Tribunal on 12.12.2023. It is time barred by 436 days. The Revenue has filed an application for condonation of delay along with the affidavit of Shri Sudip Chatterjee. Without looking into all these aspects, we are of the view that otherwise this appeal is not maintainable because the ld. CIT(Appeals) has deleted the addition of Rs.7,22,174/-, which was claimed by the assessee as contributions towards PF and ESI. The stand of the Revenue is that in view of the judgment of the Hon’ble Supreme Court in the case of Checkmate Services (P) Limited –vs.- CIT reported in 143 taxmann.com 178, this deduction was not admissible to the assessee. The tax effect on the total alleged addition of Rs.7,22,174/- is Rs.2,81,728/-. The CBDT vide its Circular No. 17 of 2019 issued on 8th August, 2019 has prohibited its field staff from challenging any order of the ld. CIT(Appeals) before the Tribunal where tax effect by virtue of relief given by the ld. CIT(Appeals) is less than Rs.50 lakhs. Here the question of merit cannot be agitated. The only question is whether the quantum of relief given by the ld. CIT(Appeals) is less than Rs.50 lakhs or not. The issue might be covered in favour of the Revenue but all these issues have been considered by Board’s Circular while laying guidelines for not challenging the order of ld. CIT(Appeals) on merit because Board must be of the view that cost of litigation
(A.Y. 2019-2020) Shibdas Sen is more than the recovery of taxes. The order of the ld. CIT(Appeals) could only be challenged if relief granted by the ld. 1st Appellate Authority does fall within the exemptions provided at Serial No. 10 of the Board Circular. In this exemption, no such item is being provided, that if disallowance out of non-payment of PF & ESI within the time limit is deleted by the ld. CIT(Appeals) would be challenged on merit before the Tribunal. Since the issue does not fall within the exemption clause, therefore, in view of the Circular, the Revenue cannot challenge the order of ld. CIT(Appeals) on merit. On due consideration of that fact, there is no need to consider the plea, whether the delay is to be condoned or not because, it failed to cross the threshold issue of maintainability of appeal otherwise in view of the CBDT Circular.