S. Padmavathy ORDER
N.V. Vasudevan, Vice President
1. This is a Miscellaneous Petition (MP) filed by the Revenue under section 254(2) of the Income Tax Act, 1961 (hereinafter called 'the Act') praying for rectification of the order dated 8.3.2022 passed by this Tribunal in the aforesaid appeal.
2. By the aforesaid order this Tribunal held that the Revenue authorities were not justified in making a disallowance on delayed payment of employee's contribution to ESI and PF made by the assessee beyond the due date as prescribed under the relevant law relating to ESI and PF for deposit of employees share of contribution, by invoking the provisions of section 36(1)(va) of the Act, if the said contributions are paid within the due date for filing return of income u/s. 139(1) of the Act. On the above issue, as per the subsequent decision of the Hon'ble Supreme Court rendered in the case of CHECKMATE SERVICES PVT. LTD VS. CIT-1 in CIVIL APPEAL 2833/2016 vide its judgment dated 12th October 2022 decided the issue on allowability/treatment of 'delayed' Employee PF Contribution payment in hands of assessee under provisions of Income Tax Act and held that Section 36(1)(va) and Section 43B(b) operate on totally different equilibriums and have different parameters for due dates, i.e., employee's contribution is linked to payment before the due dates specified in the respective Acts and employer's contribution is linked to the payment before the prescribed due date for filing of return u/s. 139(1) of Income Tax Act, 1961. The result of any failure to pay within the prescribed dates also leads to different results. In the case of employee's contribution, any failure to pay within the prescribed due date under the respective PF Act or Scheme will result in negating employer's claim for deduction permanently forever u/s. 36(1)(va). On the other hand, delay in payment of employer's contribution is visited with deferment of deduction on payment basis u/s. 43B and is therefore not lost totally. Therefore, as per the above decision, the disallowance made by the Revenue authorities, were fully justified.
3. Through this miscellaneous petition, the Revenue seeks an order to reverse the order of the Tribunal and hold that the disallowance of deduction by the revenue authorities u/s. 36(1)(va) of the Act is fully justified and dismiss the appeal of the assessee.
4. Notice of this MP for the hearing on 6.1.2023 was issued to Assessee on 9.12.2022 by RPAD to the Assessee. Since the Bench did not function on that day, the case was adjourned to 10.2.2023. When the case was called for hearing none appeared for the Assessee. We therefore proceed to decide the MP after hearing the submission of the learned DR who relied on the averments in the MP.
5. We have considered the contentions of the revenue in the MP and We are of the view that the Hon'ble Supreme Court in the case of CIT Vs. Saurashtra Kutch Stock Exchange case 219 CTR (SC) 90 has held that non-consideration of the decision of the jurisdictional high court/Supreme Court constitutes mistake apparent from record and is rectifiable within the meaning of section 254(2) of the Act. In Honda Siel Power Products Ltd. v. CIT MANU/SC/8241/2007 : 295 ITR 466, the Hon'ble Supreme Court explained the scope of rectifi........