TaxTMI 
TaxTMI 
2022 (11) TMI 1328
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.... case of CHECKMATE SERVICES PVT LTD VS CIT-1 in CIVIL APPEAL 2833/2016 vide its judgment dated 12 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 the Act. 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) of the Act. On the other hand, delay in payment of employer's contribution is visited with deferment of deduction on payment basis u/s.43B of the Act and is therefore not lost totally. Therefore, as per the above decision, the disallowance ....
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....ction 254(2) of the Act, which reads as under:- "The appellate may, at any time within 6 months from the end of the month in which the order was passed, with a view to rectifying any mistake apparent from the record, amend in order passed by it under sub section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or AO." 5.1 A bare perusal of the above provisions shows that either parties can file application for rectification of order passed u/s 254(1) of the Act within a period of 6 months from the end of the month in which the order was passed. In the present case, the order was passed on 22.3.2022 and according to the ld. A.R., the time limit to file MA u/s 254(2) of the Act expires on 30.9.2022 and there was delay in filing this miscellaneous petition and hence, it is to be dismissed. 5.2 In context of the provisions of section 254(2) of the Act (as prior to its amendment by Finance Act, 2016 w.e.f. 1.6.2016) the Mumbai Tribunal has in Powan Kumar Jain vs. Dy. CIT (2013) 155 TTJ 14 (Mum-Tribunal), held that for purposes of filing application u/s 254(2) of the Act, the period of limitation would start from the point of time when order ....
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....d by the assessee within 30 days of the order passed by the Tax Recovery Officer. The question before the High Court was whether words "date of the order" in Rule 86 should be construed as "date of service or communication of the order" to the assessee? The Allahabad High Court held as under - "The second point of determination is as to whether the limitation for filing the appeal would run from the actual date of the order or from the date of service of the order and, consequently as to whether the appeal is barred by limitation. There is no dispute to the fact that the order confirming the sale was passed on 25-4-1988 and the sale certificate was also issued on the same day. The appeal was presented under rule 86 on 19-9-1988. The limitation for filing the appeal under rule 86(2) is 30 days from the date of the order'. Thus, the appeal apparently appears to be beyond time by 117 days. However, the argument is that the limitation for filing the appeal would start running from the date when the order was served and the date of service of the order would be recognised as the date of the order. Generally speaking, judicial and quasi-judicial orders are required to be passed ....
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....ning of section 254(2) of the Act. In Honda Siel Power Products Ltd. v. CIT 295 ITR 466, the Hon'ble Supreme Court explained the scope of rectification powers u/s/254(2) of the Act, as follows: "Scope of the Power of Rectification 12. As stated above, in this case we are concerned with the application under section 254(2) of the 1961 Act. As stated above, the expression "rectification of mistake from the record" occurs in section 154. It also finds place in section 254(2). The purpose behind enactment of section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its Order dated 10.9.2003 allowing the Rectification Application has given a finding that Samtel Color Ltd. (supra) was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation....