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Deputy Commissioner Of Income Tax vs. Alert Detective Force, Bangalore - (Income Tax Appellate Tribunal) (17 Feb 2023)

Non-consideration of the decision of the High Court/Supreme Court constitutes mistake apparent from record and is rectifiable within the meaning of Section 254(2) of the IT Act


Direct Taxation

Present is a Miscellaneous Petition (MP) filed by the Revenue under Section 254(2) of the Income Tax Act, 1961 (IT Act) praying for rectification of the order passed by present Tribunal. 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 IT Act, if the said contributions are paid within the due date for filing return of income under Section 139(1) of the IT Act.

Supreme Court in the case of CIT Vs. Saurashtra Kutch Stock Exchange 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 IT Act.

Article 141 of the Constitution of India, 1950 provides that the law declared by Supreme Court shall be binding on all courts within the territory of India. The law laid down by Supreme Court operates retrospectively and is deemed to the law as it has always been unless, the Supreme Court, says that its ruling will only operate prospectively.

There is a mistake apparent on record in view of the decision of the Hon'ble Supreme Court in the case of Checkmate Services Pvt. Ltd. Vs. CIT though rendered subsequent to the order passed by the Tribunal and has to be rectified by holding that, the disallowance made by the revenue authorities under Section 36(1)(va) of the IT Act was justified. The orders of the Tribunal will stand modified/rectified accordingly. Petition allowed.


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