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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 ..... y reference. 1. The learned CIT(A) erred in passing the order in the manner he did. 2. The learned CIT (A) ought to have appreciated that the amount of Employee's share to ESI and PF was paid within the due date as per EPF and ESI act. Hence disallowance as made is bad in law. 3. The learned CIT(A) ought to have appreciated that as per clause 38 of Employees provident fund scheme 1952, payment of contribution of employees share should be made within 15 days from the end of the month during which disbursement of salary. 4. Without prejudice, the impugned additions are excessively arbitrary and unreasonable and liable to be deleted in full. 5. For these and such other grounds that may be urged at the time of hearing the appellant prays that the appeal may be allowed. At the time of argument, we relied on the ITAT judgement in ITA No.95/BANG/2023, wherein similar issue was remitted back to the Assessing Officer by the honble bench to verify the payment made to ESI and PF account are within 15 days from end of the month on which salary is paid as per month mentioned in PF and ESI Act. During the course of the argument, it was also agreed by the bench to remit this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. The main contention of the AR of the Assessee is that the Tribunal has wrongly relied on the decision in the case of Manikandan Vazhukkappara Kumaran in ITA No.577/Bang/2023 dated 29.11.2023 whereas during the course of argument the AR relied on the decision in the case of M/s MTR Maiya's in ITA No.95/Bang/2023. On going through the sl. no. 20(b) of the Form 3CD (Pg-3 to 7 of PB) we find that there are certain delayed payment of Employee's contribution of Provident Fund & ESI as reported by the Tax auditor. The ld. AR in the present application is attempting to reargue the issue by placing reliance on the decision in the case of M/s MTR Maiya's in ITA No.95/Bang/2023 which is not permissible u/s 254(2) of the I. Tax act, 1961. 5. The ld. AR of the assessee has alleged that the two decisions relied upon by the assessee has not been considered by the tribunal in the impugned Order dated 27/06/2024 as detailed below- (i) ITAT order in the case of Elavarthy Ramana Reddy (ITA no. 806/bang/2024) (ii) ITAT order in the case of MTR Maiya's (ITA no.95/bang/2023) Whereas at the time of hearing the ld. DR strongly relied upon the decision in the case of Manikandan Vazhukkappara Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case for the following reasons- (i) In the case of Elavarthy Ramana Reddy it is 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, however the dictum laid down by the Hon'ble Supreme Court in the case of Checkmate Services (P.) Ltd vs CIT-1, (2022) 143 taxmann.com 178 (SC) is that section 38 of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 makes it obligatory for the employer before paying an employee the wages or salary to deduct the employees' contribution. Thus, to analyze in the form of an example assuming a circumstance that the employer does not make payment of salary/wages to the employees for 2 to 3 consecutive months. This does not mean that the employer gets the benefit of depositing the employees' contribution of such months for which the salary was not paid on time to such employees will get shifted. That would render the entire provision otiose and is not the intention of the legislature also. In this particular decision the Tribunal has extracted the table where in it is apparently clear that the salary for the month of June has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is beyond the scope and ambit of the powers under section 254(2) of the Act. While allowing the application under section 254(2) of the Act and recalling its earlier order dated 6-9-2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under section 254(2) of the Act, the Appellate Tribunal is not required to re- visit its earlier order and to go into detail on merits. The powers under section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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