Tribunal lacks jurisdiction to recall its orders based on subsequent changes in law and must adhere to statutory time limits for applications.

ORDER

PER YOGESH KUMAR U.S., JM

The above Miscellaneous applications are filed by the Revenue with a prayer to recall the order of the Tribunal dated 28/07/2022 in ITA No. 4843-44/Del/2018 for the Assessment Year 2013-14 and 2014-15.

2. The Ld. Departmental Representative submitted that the Tribunal while deciding the above appeals, in so far as the issue of late deposit of ESI & PF are concerned, allowed the Grounds of the Appeal of the Assessee. Further submitted that the issue of allow-ability of deduction u/s 36(1)(va) of the Act has been finally decided by the Apex Court in the case of Checkmate Services Pvt. Ltd. vs. CIT-1 in Civil Appeal No. 2833 of 2016, vide order dated 12/10/2022 by the Hon’ble Supreme Court. The ground of the Assessee regarding late payment of ESI & PF deserves to be decided in favour of the Revenue, therefore, sought for allowing the captioned MAs and restoring the ITA to its original file for fresh adjudication of the issue.

3. The Assessee's Representative submitted that the order of the Tribunal cannot be recalled since there is no error apparent from record and the Tribunal has no jurisdiction to recall its own order except there is any error apparent on record as held by the Hon'ble Supreme Court in the case of Reliance Telecom Ltd. thus, sought for dismissal of the MAs filed by the Revenues.

4. We have heard both the parties and perused the material available on record. The issue regarding allow-ability of late payment of ESI and PF has been decided in favour of the Revenue by the Hon'ble Supreme Court in the case of Checkmate Services (supra) on 12/10/2022. The Appeal filed by the Assessee in ITA No. 4843/Del/2018has been heard and pronounced the order on 28/07/2022. During the hearing of the Appeals/pronouncement of the order, in the above referred Appeals by the Tribunal, the benefit of the above Judgment of the Hon'ble Supreme Court in the case of Checkmate Services (supra) was not available for the benefit of the Tribunal. Therefore, the Grounds of Appeal of the Assessee on the issue of late payment of ESI & PF has been decided in favour of the Assessee. Now the Department has filed the present M.A with a prayer to recall the order of the Tribunal on the ground that the Hon'ble Supreme Court has decided the issue of late payment of ESI & PF in favour of the Revenue.

5. The similar question in the Miscellaneous Application filed by the Revenue has been decided by the Co-ordinate Bench of the Tribunal of Pune Bench in the case of Income Tax Officer Vs. Infantry Security and Facilities , wherein the Tribunal allowed the MA filed by the Department vide order dated 26/07/2022. The Assessee therein challenged the order of the Tribunal dated 26/07/2022 in the writ petitions 17175- 77/2024. The Hon’ble High Court of judicature at Bombay vide order dated 03/12/2024, allowed the petitions of the Assessee in following manner: -

“10. Having heard the learned counsel for the parties and having perused the record, we find that there is much substance in the contentions as urged on behalf of the petitioner. At the outset, we may observe that the jurisdiction of the Tribunal as invoked by the Revenue, was the jurisdiction as conferred on the Tribunal under Section 254 (2) of the IT Act provides, which is in relation to the orders passed by the Tribunal. Section 254 , is required to be noted, which reads thus:

"254. Orders of Appellate Tribunal (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.

(1A) [***] (2) The Appellate Tribunal may, at any time within six months from the end of the month in which the order was passed, with a view to re