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TMI Blog2024 (12) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent on the face of the order, the Tribunal could substitute its original order? - HELD THAT:- As recently a bench of the Tribunal in the case of ANI Integrated Services Ltd [ 2024 (7) TMI 881 - ITAT MUMBAI] had the occasion to consider the very issue as raised by the Revenue in light of the decision rendered by the Supreme Court in Checkmate Services Private Limited (Supra). In such case similar applications were filed by the Revenue praying that the Tribunal set aside its orders in relation to Employees State Insurance Corporation ( ESIC for short) (for the Assessment Year 2019-20) considering the changed position in law in Checkmate Services Private Limited (Supra). Tribunal by its decision in ANI Integrated Services Limited [ 2024 (7) TMI 881 - ITAT MUMBAI] did not accept the contentions as urged on behalf of the Revenue and rejected the Miscellaneous Applications filed by the Revenue, also considering the decision in Beghar Foundation [ 2021 (2) TMI 504 - SUPREME COURT] and the scope of its limited jurisdiction under Section 254 (2) of the IT Act. We are in complete agreement with the view taken by the Tribunal in ANI Integrated Services Ltd (Supra) and which is on the ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the IT Act and approached the Tribunal by filing Miscellaneous Application Nos. 111, 112 and 113 of 2023, praying that the original orders dated 26 July 2022 passed by the Tribunal, allowing the petitioner s appeal, be set aside on the ground that the view taken by the Tribunal qua setting aside of the additions as made by the assessing officer, cannot be accepted to be a correct view, in view of the decision of the Supreme Court in Checkmate Services Private Limited (Supra) which was rendered subsequent to the orders passed by the Tribunal. It was contended that in such decision the Supreme Court has held that deduction of employees share can be allowed under Section 36 (1) (va), only if, it is deposited before the time limit under the respective statute and not before the due date under Section 139 (1) of the IT Act. In this view of the matter, it was urged by the Revenue in the Miscellaneous Applications that due to such change in law, the basis of the order dated 26 July 2022 passed by the Tribunal has vanished and accordingly the same will be required to be set aside, by allowing the Miscellaneous Applications filed under Section 254 (2) of the IT Act. 6. The petitioner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioner of Income Tax (IT-4) vs. Income Tax Appellate Tribunal [2017] 85 taxmann.com 42 (Bombay)., Deputy Commissioner of Income Tax vs. ANI Integrated Services Ltd [2024] 162 taxmann.com 899 (Mumbai-Tribunal)., as also the decision of the Constitution Bench of the Supreme Court in Beghar Foundation vs. Justice K. S. Puttaswamy [2021] 123 taxmann.com 344/278 Taxman 1. 9. On the other hand, learned counsel for the Revenue has supported the impugned order. He would fairly submit that now the parameters of the jurisdiction of the Tribunal under Section 254 (2) of the IT Act are well settled, while not disputing the principles of law as held in the decision cited on behalf of the petitioner. He would also submit that the decision in the case of Checkmate Services Private Limited (Supra), was rendered subsequent to the decision of the Tribunal allowing the petitioner s appeal vide order dated 26 July 2022 and hence, such decision certainly was not available when the Tribunal disposed of the petitioner s appeal subject matter of the Miscellaneous Applications filed by the Revenue. 10. Having heard the learned counsel for the parties and having perused the record, we find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be granted by the Appellate Tribunal, where such appeal is not so disposed of within the said period of stay as specified in the order of stay, unless the assessee makes an application and has complied with the condition referred to in the first proviso and the Appellate Tribunal is satisfied that the delay in disposing of the appeal is not attributable to the assessee, so however, that the aggregate of the period of stay originally allowed and the period of stay so extended shall not exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee. (2B) The cost of any appeal to the Appellate Tribunal shall be at the discretion of that Tribunal. (3) The Appellate Tribunal shall sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court held that the deduction of the employees share can be allowed under Section 36 (1) (va) of the IT Act, only if such share was deposited before the time limit under the respective statutes and not before the due date under Section 139 (1) of the IT Act. In the fact situation, certainly it cannot be said that the Tribunal has overlooked the existing position in law, as laid down by the Supreme Court or the High Court, so as to bring about a situation that the law declared by the Supreme Court was not followed by the Tribunal and/or the decision of the Tribunal is contrary to the law as laid down by the Supreme Court. Such decision of the Supreme Court which never existed when the Tribunal passed the original order could never have been applied by the Tribunal, and hence it cannot be said that there was any mistake on the face of the record, so as to confer jurisdiction on the Tribunal to exercise its jurisdiction under Section 254 (2) of the IT Act. 15. There is also much substance in the contention as urged on behalf of the petitioner, when it is contended that the Miscellaneous Application was filed by the Revenue beyond the prescribed limitation of six months as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law or subsequent decision/judgment of coordinate Bench or larger Bench by itself cannot be regard as a ground for review. 19. We may observe that recently a bench of the Tribunal in the case of ANI Integrated Services Ltd (Supra), had the occasion to consider the very issue as raised by the Revenue in light of the decision rendered by the Supreme Court in Checkmate Services Private Limited (Supra). In such case similar applications were filed by the Revenue praying that the Tribunal set aside its orders in relation to Employees State Insurance Corporation ( ESIC for short) (for the Assessment Year 2019-20) considering the changed position in law in Checkmate Services Private Limited (Supra). The Tribunal by its decision dated 29 May 2024 [ANI Integrated Services Limited (Supra)] did not accept the contentions as urged on behalf of the Revenue and rejected the Miscellaneous Applications filed by the Revenue, also considering the decision in Beghar Foundation (Supra) and the scope of its limited jurisdiction under Section 254 (2) of the IT Act. We are in complete agreement with the view taken by the Tribunal in ANI Integrated Services Ltd (Supra) and which is on the very issue as u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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