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TMI Blog2023 (1) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... d ESI to the extent it is not paid within due date prescribed under the PF Act, is not allowable u/s. 36(1)(va) of the Act. The Hon ble Supreme Court has also admittedly held that the provisions of section 43B of the Act would not apply to the provisions of section 36(1)(va) of the Act in respect of employees contribution. Respectfully following the decision of Hon ble Supreme Court in the case of Checkmate Services Pvt Ltd (supra), we are of the view that the delayed payment in respect of employees contribution to PF and ESI is not allowable. In the case of Nirakar Security Consultancy Services Pvt Ltd. [ 2022 (11) TMI 69 - ITAT CUTTACK] as the amount is not allowable under section 36(1)(va) of the Act and same is also not covered under section 43B of the Act, the amount of delayed contribution to PF and ESI in respect of employees contribution would be treated as income in the hands of the assessee u/.s.2(24)(x) and on subsequent payment of the same, it would be a business expenditure, which can be claimed u/s. 37(1) of the Act. We are not expressing any opinion in regard to his arguments as it has not been examined by the lower authorities. Liberty is also granted to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich can be detected without there being any necessity to re-argue the matter or to re-appraise the facts as appearing from the records. If the document is not taken into consideration by the lower authorities and is not produced before the Tribunal, when it considered the matter and passed the order, it cannot be said that the order of the Tribunal contains a mistake since it does not discuss such document. The following case citations decide the issue of mistake apparent from the record. Similarly, if a plea founded on a document is not at all raised before the Tribunal, it cannot be said that the order of the Tribunal contains an error apparent on the record - CIT v. Suman tea plywood Industries (p.) Ltd. [1997] 94 Taxman 305 (Cal). It has been held that the word mistake is an ordinary term but in taxation law, it has special significance or contextual connotation. Mistake means to understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault. Apparent means visible; capable of being seen; easily seen, plain. A mistake which can be rectified under section 254(2) of the Act is one which is patent, which is obvious and whose discovery is not depende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but it had committed a mistake in not considering material, which was already on record - Honda Siel Power Products Ltd. V. CIT [2007] 165 Taxman 307{SC). While exercising power of rectification under section 254(2), Tribunal can recall its order in entirety if it is satisfied that prejudice has resulted to party which is attributable to Tribunal's mistake, error, omission and which error is a manifest error and it has nothing to do with doctrine or concept of inherent power of review. When justification of an order passed by Tribunal recalling its own order is assailed in a writ petition, it is required to be tested on anvil of law laid down by Apex Court in Honda Siel Power Products Ltd. v. CIT [2007] 165 Taxman 307 and Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 173 Taxman 322 (SC). Decision rendered in Honda Siel Power Products Ltd.'s case{supra) by Apex Court is an authority for proposition that Tribunal, under certain circumstances, can recall its own order and there is no absolute prohibition - Lachman Dass Bhatia Hingwala (P.) Ltd. v. Asst. CIT [2011] 196 Taxman 563/ [2010] 8 taxman.com 301 (Delhi){FB). Conclusion in a judgment may be inappropriate. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Cuttack Bench was not obviously aware of this judgment which was not passed by that date. So, on 20.09.2022 Hon'ble ITAT, Cuttack Bench has not passed erroneous order. Hence, there is no ground to rectify the order. PRAYER It is therefore prayed before your honour not to recall/rectify the order made on 20.09.2022 in the case of ITA No. 07/CTK/2022. And for which act of your kindness the respondent as in duty bound shall ever pray. 3. It was submitted by the ld.Sr. DR that the issue was squarely covered by the decision of the Hon ble Supreme Court in the case of Checkmate Services (P.) Ltd Vs. CIT rendered in Civil Appeal No. 2833 of 2016 dated 12.10.2022, reported in [2022] 143 taxmann.com 178 (SC),, wherein it has been held that PF ESI which has not been paid before the due date under the respective Acts cannot be allowed in view of the provisions of Section 36(1)(va) r.w.s.2(24)(x) of the Act. It is submitted that once the Hon ble Supreme Court decides an issue, it is a law as is to be understood and as the Tribunal s order was not in conformity with the order of the Hon ble Supreme court in the case of Checkmate Services (P.) Ltd. (supra), the same is liable to be recalle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so admittedly held that the provisions of section 43B of the Act would not apply to the provisions of section 36(1)(va) of the Act in respect of employees contribution. Respectfully following the decision of Hon ble Supreme Court in the case of Checkmate Services Pvt Ltd (supra), we are of the view that the delayed payment in respect of employees contribution to PF and ESI is not allowable. 9. In the case of Nirakar Security Consultancy Services Pvt Ltd vs ITO in ITA No. 98/CTK/2022 for Assessment Year 2016-17, order dated 17.10.2022, the Co-ordinate Bench of this Tribunal after considering the arguments of ld AR, has restored the issue to the file of the Assessing officer with the following directions: 6. Liberty is granted to the ld AR to make all submissions in respect of allowability of disallowed contribution of the employees to PF and ESI under other relevant provisions in the interest of justice. This direction is being given because ld AR has submitted that as the amount is not allowable under section 36(1)(va) of the Act and same is also not covered under section 43B of the Act, the amount of delayed contribution to PF and ESI in respect of employees contribution would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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