TaxTMI 
TaxTMI 
2023 (1) TMI 1392
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.... allowed it will tantamount to recalling the original order and making fresh order which is not permitted on the strength of judgments cited below and provisions of law. 2. Section 254(2) provides that, 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 rectifying any mistake apparent from the record, amend any record passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer. From the above it is transparent that The Appellate Tribunal can rectify its own order within six months from the end of the month in which the order was passed. Further, it can rectify any mistake apparent from the record. These issues are explained below on the basis of judgments cited here under. 3.1 Mistake which can be rectified must be clerical, grammatical, arithmetical, or like nature, which could be detected without re-argument or reappraisal of facts. The expression 'mistake apparent on the record', it is well-settled, means a mistake either clerical or grammatical or arithmetical or of like nature, which can be detected ....
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....ant Tribunal in the following cases. The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. Recalling the entire order would mean passing of fresh order. That does not appear to be the legislative intent - CIT v. ITAT [1992] 196 ITR 640 (Ori). What the Tribunal is entitled to do in exercise of power under section 254(2) is to rectify an apparent mistake available from the record and not to review its own decision or to rewrite a fresh judgment. Substitution of two paragraphs in the original order of the Tribunal by a fresh paragraph amount to rewriting of its judgment and it is not permissible - CIT v. ITAT [1994] 2010 ITR 397 (Ori). 3.3 Hon'ble High Courts and Supreme Court have decided the scope of rectification in the following cases: - When prejudice results from an order attributable to Tribunal's mistake, error or omission, then it is the duty of Tribunal to set it right; Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to Tribunal that judgment of co-ordinate Bench was placed before Tribunal was original order came to be pas....
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....ase Hon'ble Supreme Court has decided that judgments of Jurisdictional High Court and Supreme Court are to be considered when they are available. If the judgment of jurisdictional High Court and Supreme Court are passed subsequent to the order of ITAT it cannot be concluded that the order was erroneous. The aggrieved party can move the High Court to address his grievances. In this case judgment of Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. came after Hon'ble ITAT, Cuttack Bench passed the order. 4. Further, even if the employees' contributions to PF & ESI are disallowed u/s 36(1)(va) r.w.s. 2(24)(x) of the I.T. Act they are to be allowed under section 37(1) of I.T. Act as business expenses. Genuine expenses cannot be disallowed for ever. Section 36(1)(va) and 2(24)(x) disallows for one year's claim for that year, but this disallowance should not continue for all years. It means these liabilities should be allowed in the year of payment. In this case the original order was passed on 20.09.2022 whereas the Apex Court in the Civil Appeal No. 2833 of 2016 in the case of Checkmate Services Pvt. Ltd. has passed the order on 12.10.2022. So, on 20.09.2022 H....
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.... of 2016 dated 12.10.2022, reported in [2022] 143 taxmann.com 178 (SC), wherein, the Hon'ble Supreme Court has categorically held that if the employees contribution to PF and ESI has been paid beyond the time prescribed under the relevant PF Act, then same is not allowable under section 43B of the Act even after the payment has been made before the due date of filing of return under the Income tax Act. It was the submission that the amount of employees contribution to PF and ESI, which has not been paid within the due date as prescribed under the relevant Act, has been held by Hon'ble Supreme Court to be not allowable u/s. 36(1)(va) of the Act. It was the submission that the Hon'ble Supreme Court in paras 52 & 53 has also categorically held that the provisions of section 43B would not apply to the employees' contribution to PF and ESI. 8. We have considered the submissions of ld. Sr. DR and the facts of the case. Admittedly, the Hon'ble Supreme Court in the case of Checkmate Services Pvt Ltd(supra) has categorically held that the employees contribution to PF and ESI to the extent it is not paid within due date prescribed under the PF Act, is not allowable u/s. 36(1)(va) of the Act....