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Infantry Security and Facilities through, proprietor Tukaram M. Surayawanshi v. ITO ( Bom)( HC) www.itatonline.org .

S. 254(2): Appellate Tribunal-Rectification of mistake apparent from the record – Review – Statutory dues like the Provident Fund and Employees State Insurance -Payments were made before due date of filing of return – Allowed by the Tribunal – Corporation – Not deposited before due date of respective Acts – Delay of 92 days in filing miscellaneous application- Tribunal allowed the miscellaneous application of the Revenue of the basis of Subsequent Judgement of Supreme Court in Checkmate Services Private Limited v. CIT (2022) 448 ITR 518 /290 Taxman 19 ( SC) – On writ against the order of the Tribunal allowing the miscellaneous application of the Revenue is quashed and set aside – Tribunal cannot review the order based on the subsequent decision of Supreme Court – Tribunal has no power to condone the delay in filing the miscellaneous application. [ S. 2(24)(x),36(1)(va ) 43B ,139(1), Art. 226 , Civil Procedure Code , 1908 , Order XLVII, Rule 1 . ]

The assessing officer  disallowed the certain amounts in regard to the payment of the statutory dues like the Provident Fund and Employees State Insurance Corporation under Section 36(1)(va) of the Income- Tax Act, on the ground that  the payments were not made within the statutory period of respective Acts  ,though the payments were made before due date of filing of return . CIT(A) allowed the claim on the ground that the payments were made before due date of filing of the return . Order of CIT(A) is   affirmed by the Tribunal .  The order of the Tribunal was dated 26 th July 2022.  Subsequently the Honourable Supreme Court in Checkmate Services Pvt Ltd  v. CIT  (2022) 448 ITR 518 /290 Taxman 19 ( SC)  held that  the payment is not allowable as deduction unless the payments are made within specified dates of the Respective Acts . The order of the Supreme Court is dated 12 -10 -2022 . The Revenue has filed Miscellaneous application   before the Tribunal to  rectify the order of the Tribunal based on the Judgement of Supreme Court in   Checkmate  Services Pvt Ltd  v. CIT  (2022) 448 ITR 518 /290 Taxman 19 ( SC) .The miscellaneous application of the Revenue was delayed by 92 days . The Tribunal allowed the Miscellaneous application of the Revenue . The petitioner filed writ petition and contended that the Tribunal has no power to condone the delay in  filing the Miscellaneous application and also the Tribunal cannot review the order based on the subsequent decision of Supreme Court .   Allowing the petition the Court held that the Tribunal  was in a patent error in exercising jurisdiction under Section 254(2) and setting a side the original order . Order of the Tribunal is quashed on ground of delay as well as on merits .

 

 

 

 

 

 

Referred  Sanjay Kumar Agrawal v. State Tax Officer (1) and Another 2024) 2 Supreme Court Cases 362. ,  Beghar Foundation v. Justice K. S. Puttaswamy   [2021] 278 Taxman 1. (SC) , CIT  v. Income Tax Appellate Tribunal [2017] 85 taxmann.com 42 (Bom) (HC) ,Dy.CIT  v. ANI Integrated Services Ltd [2024] 162 taxmann.com 889 /207 ITD 91 (Mum)(  Trib). (WP Nos . 17175 of 2024 / 17176 of 2024/17177 of 2024 dt .3-12 -2024 ) (AY. 2017 -18 , 2018 -19 , 2019 -20 )

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