2024:BHC-AS:50609-DB 13TO15-WP-17175-2024+.DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 17175 OF 2024 WITH WRIT PETITION NO. 17176 OF 2024 WITH WRIT PETITION NO. 17177 OF 2024 Infantry Security and Facilities … Petitioner through, proprietor Tukaram M. Surayawanshi Versus The Income Tax Officer, Ward 4(5) …Respondent Ms. Madhavi M. Tavanandi, for the petitioner.

Mr. Vikas T. Khanchandani, for the respondent.

_______________________

CORAM: G. S. KULKARNI &

ADVAIT M. SETHNA, JJ.

DATED: 3 DECEMBER 2024 _______________________

ORAL JUDGMENT: [Per G. S. Kulkarni, J.]

1. Rule, returnable forthwith. By consent of parties heard finally.

2. These are three writ petitions filed under Article 226 of the Constitution of India assailing a common order dated 20 October 2023 passed by the Income Tax Appellate Tribunal (“Tribunal” for short) Bench at Pune, whereby the Miscellaneous Applications filed by the respondent-Revenue against the order dated 26 July 2022, passed by the Tribunal, have been allowed. One of the factors which could have weighed in favour of the petitioner/assessee and against the Revenue is the view taken by the Tribunal is Page 1 of 13 that the decision of the Supreme Court in the case of Checkmate Services Private Limited vs. Commissioner of Income Tax¹ being rendered subsequent to the original decision of the Tribunal, hence the same would not be relevant for setting aside the order passed by the Tribunal.

3. The facts are not in dispute. The Assessment Years in question are 2017-2018, 2018-2019 and 2019-2020. For these Assessment Years, the petitioner had filed its returns of income. The assessing officer in carrying out the assessment certain amounts in regard to the payment of the statutory dues like the Provident Fund and Employees State Insurance Corporation amounts were not allowed as expenses under Section 36(1)(va) of the Income Tax Act, 1961 (“IT Act” for short), for the reason that such payments were made beyond the due date under the relevant legislations.

4. The petitioner, being aggrieved by the assessing officer not allowing such expenditure under the said heads, approached the Commissioner of Income Tax (Appeals) (“CIT(A)” for short). The CIT(A) partly allowed the appeals. Against the orders passed by the CIT(A), the petitioner approached the Tribunal. The Tribunal by judgment and order dated 26 July 2022 was pleased to allow the appeals of the petitioner and delete the additions made by the assessing officer.

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2022 (448) ITR 518 (SC).

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5. Being aggrieved by the said order passed by the Tribunal, the Revenue, however, invoked the provisions of Section 254 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 assailing the impugned order passed by the Tribunal, has urged two basic contentions: Firstly, it is submitted that the jurisdiction