S. 254(2) : Appellate Tribunal-Rectification of mistake apparent from the record-Deduction of the amount deposited on account of employees’ contribution to PF and ESIC after due dates specified in PF /ESIC Acts, but before the due date filing of return as prescribed in Section 139(1) of the Act- Tribunal allowed the deduction relying on the judgement of Jurisdictional-Rectification application of the Revenue is dismissed. [S. 36(1)(va), 43B , 139(1), 254(1)]
The Revenue filed the miscellaneous application on the ground that the issue of claim of deduction of the amount deposited on account of employees’ contribution to PF and ESIC after due dates specified in PF /ESIC Acts, but before the due date filing of return as prescribed in Section 139(1) of the Act is not allowable, in view of the subsequent judgment of the Hon’ble Supreme Court in the case of Checkmate Services P Ltd. v. CIT (2022 ) 143 Taxmann.com 178/ 448 ITR 518 (2023) 290 Taxman 19 (SC) vide judgment and order dated 12/10/2022 has decided the controversy in favour of the department . The assessee contended that once the matter has attained finality, then based on subsequent judgment of a Higher Court, cannot be the ground to recall or to review the order within the scope and ambit of Section 254(2). The Honourable Tribunal after referring the Judgement of the Apex Court in CIT v. Reliance Telecom Ltd. (2022) 440 ITR 1 (SC) powers u/s. 254(2) of the Income Tax are akin to Order XLVII Rule 1 CPC, then it cannot be held that scope of power u/s.254(2) is beyond and much larger than scope of review as given in the Order XLVII Rule 1 of CPC. In fact, the scope of Section 254(2) is much limited and the scope of review is much wider. Accordingly, in view of the law laid down by the Hon’ble Constitutional Bench of the Hon’ble Supreme Court and several other judgments of Hon’ble Supreme Court held that order of the Tribunal cannot be recalled based on the subsequent judgment of the Hon’ble Supreme Court when the order of the Tribunal had attained finality between the parties. Accordingly the the Miscellaneous Application filed by the department is dismissed. ( MA No.167/MUM/2023 (Arising out of ITANo.1634/Mum/2021) dt.29-5 -2024 ) (AY.2019-20)
Dy. CIT v. ANI Integrated Services Ltd. (Mum.)(Trib.); www.itatonline .org
(Coram : Hon’ble Shri B R Baskaran, AM and Hon’ble Shri Amit Shukla, JM)