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2023 (8) TMI 1172 - AT - Income TaxRectification of mistake - late deposit of the Employees contribution towards ESI and PF after the expiry of due date as specified in the relevant statutes -whether there is an apparent mistake in the order of the Tribunal passed? - HELD THAT - Section 254(2) empowers the Tribunal to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendment, if the mistake is brought to its notices by the assessee or the AO. The Bench also noted that the Department has simply relied upon the Judgement of Hon ble Supreme Court in the case of M/s. Checkmate Services Pvt. Ltd. 2022 (10) TMI 617 - SUPREME COURT but it has not mentioned that there is apparent mistake in the order of the ITAT passed in the case of Shri Suman Solanki 2022 (8) TMI 923 - ITAT JAIPUR wherein some amendment/ rectification is required. The order was passed by the Bench in the case of the assessee on 12-05-2022 in accordance with that time, situation and prevailing interpretation of law by various Hon ble High Courts including binding judgment of jurisdictional High Court and ITAT Benches across the country wherein the Bench does not find any infirmity or apparent mistake. Bench feels hesitation to concur with the submission of the Department to amend its order. Hence, the Misc. Application filed by the Department is dismissed.
Issues Involved:
1. Maintainability of the Miscellaneous Application (M.A.) filed by the Department. 2. Merits of the ITAT's original order regarding the addition made under section 36(1)(va) of the Income Tax Act. Summary: Issue 1: Maintainability of the Miscellaneous Application - The Department filed a Miscellaneous Application against the ITAT Jaipur Bench order dated 12-05-2022 for rectification of mistake under section 254(2) of the Income Tax Act. The application was filed on 15-02-2023, which was beyond the six-month statutory period, expiring on 30-11-2022. The delay was 77 days. - The Assessee argued that the M.A. was not maintainable due to being barred by limitations, citing ITAT Jaipur's decision in Kishan Mal Goyal v. ITO and Vinod Kumar vs. ITO, which held that the ITAT has no power to condone the delay in filing the M.A. - The Bench noted the delay and found no sufficient cause for the late filing, thus dismissing the application for condonation of delay. Issue 2: Merits of the ITAT's Original Order - The original ITAT order dated 12-05-2022 deleted the addition of Rs. 42,22,723/- made by the AO under section 36(1)(va) on account of late deposit of employees' PF/ESI contributions, holding that the Assessee paid the same before the filing of the return of income under section 139(1). - The Department contended that the decision was not acceptable in light of the Supreme Court's judgment in M/s. Checkmate Services Pvt. Ltd. vs. CIT, which held that the essential condition for deduction is that the amount must be deposited on or before the due date. - The Assessee argued that the ITAT's order was based on the prevailing interpretation of law by various High Courts, including the jurisdictional Rajasthan High Court, which allowed such deductions if payments were made before the due date of filing the return under section 139(1). - The Bench found no apparent mistake in the ITAT's original order, as it was passed in accordance with the law and prevailing interpretations at that time. The Department's reliance on the Supreme Court judgment did not constitute a mistake apparent from the record. Conclusion: - The Miscellaneous Application filed by the Department was dismissed both on the grounds of being barred by limitations and on merits, as no apparent mistake was found in the original ITAT order. The order was pronounced in the open court on 17/07/2023.
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