TMI Blog2023 (8) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - SHRI SANDEEP GOSAIN, JM And SHRI RATHOD KAMLESH JAYANTBHAI, AM For the Revenue : Smt. Runi Pal, Addl. CIT For the Assessee : Shri Mahenda Garlgieya, Advocate Shri Devang Gargieya, Adv. ORDER PER : SHRI SANDEEP GOSAIN, JM The Department has filed a Miscellaneous Application against ITAT, Jaipur Bench order dated 12-05-2022 for rectification of mistake u/s 254(2) of the Income Tax Act, [ here in after as Act ] by praying therein as under:- The Hon'ble ITAT vide order dated 12/05/2022 in ITA No. 37/JP/2022 in the case of Suman Solanki, PAN: AGCPS3462N for AY 2018-19 has allowed the appeal of the assessee. The ADIT (CPC) while passing an order u/s 143(1) of the Act made an addition of Rs. 42,22,723/- u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OI was processed and assessment was completed vide intimation u/s. 143(1) dt. 31.10.2019, which are processed by the DCIT, CPC, Bangalore at total income of Rs. 1,22,57,800/- while disallowing the Employees contributions towards PF/ESI of which Rs. 42,22,723/- beyond the due dates under the PF/ESI Act of S.36(1)(va) r.w.s. 2(24)(x) of the Act and refusing to apply the application of the section 43B of the act. The disallowance was confirmed also by the CIT (A), Delhi (NFAC) wide its order dated 29.03.2022 against which, the assessee approached the Hon'ble ITAT. The Hon'ble ITAT vide its order dated 12.05.2022 in ITA no. 124/JP/2022, after an elaborate discussion and following several decisions and in particular those also wherein such disallowance was made by way of adjustment u/s 143(1), in para 7, deleted the disallowance. Against the said ITAT Order dt. 12.05.2022, Miscellaneous Application is filed on dt 15.02.23 contending that the said ITAT order was not acceptable to the revenue because the Hon'ble Supreme Court in Civil Appeal No. 2833/2014 dt. 12.10.2022 in case of M/s. Checkmate Services Pvt. Ltd v CIT has held that the essential condition for the deduction wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder s. 143(1) of the Act and was under challenge before Han ble ITAT Therefore, the Hon'ble ITAT has committed no mistake because the Apex Court decision was not available before them. It is not the case that the adjudication of the appeal is still open, before ITAT after the availability of the Apex Court decision 2.2 On the contrary, on 31.12 2019 and also on 12.05 2022, the binding decisions of Hon ble Rajasthan High Court were available before the ITAT and were duly taken note by the Hon ble ITAT at page 5 para 5 wherein, cases of Mugalgadh Engineers has been relied upon. In that case reliance was placed in para 14 to the cases of CIT vs State Bank of Bikaner Jaipur (2014 265 CTR 471 (Raj) CIT vs Jaipur Vidyut Vitran Nigam limited (2014) 265 CTR 62 (Raj) and various other cases of Rajasthan High Court. That was a case of intimation u/s 143(1) para 18). The Hon ble ITAT, in assessee's case, in para 6, also took note of the amendment made by the Finance Act. 2021 and held it to be applicable prospectively from wef AY 21-22 3. It is well settled that no adjustment u/s 143(1) is permissible on a debatable and controversial issue being beyond its scope as it has been repeat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 of the Act has also been followed in the context of S.143(1)(a) of the Act that no adjustment is permissible beyond the scope of the adjustment provided in that provision because no power has been specifically conferred upon the AO/ CPC to make such adjustment. This is a jurisdictional aspect. If the AO cannot enter into jurisdiction itself legal positions available on merit, becomes irrelevant. To take an example if the proceedings u/s 147/148 is barred by limitation u/s 149 the AO cannot enter into S.147/ S. 148 or S. 148A proceedings what to talk of applying the decision of the Hon'ble Apex Court on merit. Similar situation is with S.143(1)(a). 6. The decisions cited by the Revenue completely distinguishable: In Savleen Kaur Vs. ITO 12023] 147 taxmann.com 402 (Delhi Trib.) 109.01.2023] cited by ld. DR although has taken a contrary view in the context of S.143(1)(a) r/w s. 36(1)(va) and has applied Checkmate (supra) but at the same time, there is no elaborate discussion on the aspect that debatable/controversial issue are completely beyond the scope of s. 143(1)(a) this was a categorically held in the case Kvaverner John Brown Engg. (India) (P.) Ltd. vs. ACIT, [2008] 305 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly dealt with the identical matter relating to employee s contribution towards ESI/PF and our findings therein read as under: - 13. We have heard the rival contentions and perused the material available on record. On perusal of the details submitted by the assessee as part of its return of income, it is noted that the assessee has deposited the employees s contribution towards ESI and PF well before the due date of filing of return of income u/s 139(1) and the last of such deposits were made on 16.04.2019 whereas due date of filing the return for the impugned assessment year 2019-20 was 31.10.2019 and the return of income was also filed on the said date. Admittedly and undisputedly, the employees s contribution to ESI and PF which have been collected by the assessee from its employees have thus been deposited well before the due date of filing of return of income u/s 139(1) of the Act. 14. The issue is no more res integra in light of series of decisions rendered by the Hon ble Rajasthan High Court starting from CIT vs. State Bank of Bikaner Jaipur (supra) and subsequent decisions. 15. In this regard, we may refer to the initial decision of Hon ble Rajasthan High Court in case of CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible only if the statutory liability of payment of PF or other contribution referred to in Clause (b) are paid within the due date under the respective enactments by the assessees and not under the due date of filing of return. 22. We have already observed that till this provision was brought in as the due amounts on one pretext or the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having been claimed as a deduction but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actually deposited the entire amount as also to adduce evidence regarding such deposit on or before the return of income under subsection (1) of Section 139 of the IT Act. 23. Thus, we are of the view that where the PF and/or EPF, CPF, GPF etc., if paid after the due date under respective Act but before filing of the return of income under Section 139(1), cannot be disallowed under Section 43B or under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said memorandum which says these amendments will take effect from 1st April, 2021 and will accordingly apply to assessment year 2021-22 and subsequent assessment years . In the instant case, the impugned assessment year is assessment year 2019-20 and therefore, the said amended provisions cannot be applied in the instant case. Similar view has been taken by the Coordinate Bangalore Benches in case of Shri Gopalkrishna Aswini Kumar vs. ACIT (supra) wherein it has held as under:- 7. The Hon'ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd., (supra) has taken the view that employee's contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee's share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction. Therefore, the issue is covered by the decision of the Hon'ble Karnataka High Court. The next aspect to be considered is whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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