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TMI Blog2024 (7) TMI 1531X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Now coming to the submission of assessee that the bench agreed to remit the case back to the AO cannot be a reason to allow the present Miscellaneous petition for the simple reason that the decision relied by the ld. AR are distinguishable on facts therefore a conscious decision by the bench that no purpose could be served to the assessee by remitting the issue to the AO. In our opinion there is nothing left to the AO to verify as the Auditor had rightly pointed out the several delayed payment of PF ESI in sl. No. 20(b) of Form 3CD accepted by the Assessee which are contrary to the dictum laid down by the Hon ble Supreme Court as observed in para 10.2 in the case of Manikandan Vazhukkappara Kumaran [ 2023 (11) TMI 1294 - ITAT BANGALORE] . Thus we are of the firm opinion that section 254(2) can be invoked only with a view to rectifying any mistake apparent from record. The assessee cannot seek a review of the order passed by the Tribunal through a miscellaneous application u/s.254(2) of the Act, as held by the Hon ble Supreme Court in the case of Reliance Telecom Limited [ 2021 (12) TMI 211 - SUPREME COURT ] We further clarify that if the assessee is of the opinion that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bench to remit this case back to the Assessing Officer on above finding. However, it has come to our attention that the ITAT erroneously followed the judgement in ITA No.577/BANG/2023 and dismissed the case, without appreciating that there is a more recent ITAT case, ITA No. 806/BANG/2023, wherein the Hon'ble bench remitted the matter back to the Assessing Officer to consider the payment made to the ESI AND PF account i.e 15 days from the end of the month in which salary is paid. Accordingly, there is a mistake crypt in the above order of Hon'ble Tribunal and to the extent mentioned above, the order of Hon'ble Tribunal Date 27/6/2024 requires rectification. Accordingly for personal opportunity in the above matter. 2. Before us, the learned AR of the assessee vehemently submitted that the ITAT wrongly relied on the case laws, which was not the matter in hand as per the grounds of Appeal filed. She also submitted that at the time of argument the assessee relied upon the more recent decision of the ITAT in ITA No.806/Bang/2023 dated 14/12/2023, wherein similar issue was remitted back to the Assessing Officer for necessary verification. She further submitted that during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kkappara Kumaran in ITA No.577/Bang/2023 dated 29.11.2023. On going through the para-5 of the Order in ITA no. 276/Bang/2024 dated 27/06/2024, we find that we have mistakenly mentioned that ld. DR is relying on the decision of the ITAT A Bench Bangalore in the case of Sri Elavarthy Ramana Reddy vs. DCIT in ITA No. 806/Bang/2023 vide Order dated 14/12/2023 whereas in fact the ld. DR has relied on the decision in the case of Manikandan Vazhukkappara Kumaran in ITA No.577/Bang/2023 dated 29.11.2023 the decision of the ITAT A Bench Bangalore in the case of Sri Elavarthy Ramana Reddy vs. DCIT in ITA No. 806/Bang/2023 vide Order dated 14/12/2023 in fact is relied only by the AR of the Assessee. Since this being a mistake apparent on the face of the record needs rectification, we are of the opinion that the same is rectifiable under the provisions contained in section 254(2) of the Act. Now after rectification the Para-5 of the Order dated 27/06/2024 read as under- 5. The Ld.DR on the other hand, supported the order of the Appellate Authority and by relying on the decision of Hon ble Supreme Court in case of CHECKMATE SERVICES LTD VS CIT-1 (2023) 6 SCC 45 vehemently submitted that the ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 so on so forth for July to October. (ii) Now in the case of MTR Maiya s, it is noticed that the contention of the assessee that no disallowance u/s 143(1)(a) of the Act could be made towards employees contribution to epf esi was rejected by the ITAT. Further it is also noticed that the due dates for depositing the employee s contribution to the relevant statutory A/c is taken to be date on which salary is paid by relying on the decision of Calcutta Bench of the Tribunal in the case of Kanoi Paper Industries Ltd. [2002] 75 TTJ 48 (Cal) which is much earlier than the decision of the Apex Court in the case of Checkmate Services (P.) Ltd vs CIT-1, (2022) 143 taxmann.com 178 (SC) which is now a binding precedent. We find that the Tribunal in its order dated 27.06.2024 has considered all the relevant facts and passed a detailed reasoned order by relying on the case of Manikandan Vazhukkappara Kumaran (Supra) . We find no apparent error in the order of the Tribunal warranting any rectification on this ground. Merely because the tribunal has followed the decision of the same Tribunal which are already there in public domain, there is no mistake which requires rectification. The content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee with drew the same in the instant case. 7. Now coming to the submission of the AR of the assessee that the bench agreed to remit the case back to the AO cannot be a reason to allow the present Miscellaneous petition for the simple reason that the decision relied by the ld. AR are distinguishable on facts therefore a conscious decision by the bench that no purpose could be served to the assessee by remitting the issue to the AO. In our opinion there is noth ..... 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