2024 (9) TMI 1618

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....s per the grounds filed before the hon'ble Tribunal, the grounds are extracted below for ready reference. 1. The learned CIT(A) erred in passing the order in the manner he did. 2. The learned CIT (A) ought to have appreciated that the amount of Employee's share to ESI and PF was paid within the due date as per EPF and ESI act. Hence disallowance as made is bad in law. 3. The learned CIT(A) ought to have appreciated that as per clause 38 of Employees provident fund scheme 1952, payment of contribution of employees share should be made within 15 days from the end of the month during which disbursement of salary. 4. Without prejudice, the impugned additions are excessively arbitrary and unreasonable and liable to be deleted in full. 5. For these and such other grounds that may be urged at the time of hearing the appellant prays that the appeal may be allowed. During the argument, the bench agreed to remit the matter back to the Assessing Officer, considering that some payments were made before the 15th day of the month in which salaries were paid. This decision was based on a similar issue previously referenced to the bench....

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....preciation of facts on record & the assessee cannot seek a review of the order passed by the Tribunal through a miscellaneous application u/s. 254(2) of the Act. We also find that the second Misc. Application filed by the assessee are on the similar grounds which have already been dealt with while disposing off the miscellaneous application in MA No. 31/Bang/2024 dated 30.07.2024. 5. In the present case the assessee has filed this M.A. not seeking rectification of the order in MA No. 31/Bang/2024 dated 30.07.2024. However, it has been filed to rectify the original order of the Tribunal in ITA No.276/Bang/2024 dated 27.06.2024. During the course of hearing the learned A.R. of the assessee vehemently contended that the assessee had submitted the challans for the payment of ESI and EPF at the time of hearing in ITA No. No.276/Bang/2024 but we found that except 3CB & 3CD Report & Salary Paid Ledger nothing is available on record & therefore the plea of the AR of the Assessee that the issue may be remanded for the limited purpose of verifying the challans submitted at the time of hearing of the appeal on 17.04.2024 so as to render substantial justice cannot be accepted. We also found....

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....estion is whether the learned Tribunal was justified in entertaining the second rectification application on the same ground. 14. The identical question came to be considered by the Punjab & Haryana High Court in the case of Pearl Woolen Mills (supra). The question before the Punjab & Haryana High Court was, whether it was open to the Tribunal to read-judicate the matter, and that too, when an earlier application under section 254(2) had been dismissed on the same issue. Answering the aforesaid question, the Punjab & Haryana High Court has held that the Tribunal could not have read-judicated the matter under section 254(2). While so holding, in para-11 to 13, it is observed and held as under: "11. It is well settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. Reference may be made to the judgment of the Hon'ble Supreme Court in Patel NarshiThakershi v. Shri Pradyumansinghji Arjunsinghji (1971) 3 SCC 844, wherein it was observed as under: 4 ''.It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary impl....

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....mistake apparent from the record had occurred, another application for rectification of the original order passed in the appeal may not lie. While holding so, in para-9, the Madras High Court has observed and held as under: "9. When once the power for rectification of the earlier order is invoked/exercised and an order is passed and such order merges with the earlier order of the Tribunal, in our opinion, on the ground that a mistake apparent from the record had occurred, another application for rectification of the original order passed in the appeal may not lie. We are inclined to take the above view keeping in mind that whatever power conferred on the authorities must be exercised and orders passed thereon should have a finality attached to it, as otherwise, the parties aggrieved by such orders would be entitled to file any number of such applications seeking for rectification and the same would amount to reviewing of the earlier order, which power does not vest in the Tribunal under section 254 of the Act. Once an application seeking for rectification is disposed of, be it the Revenue or the assessee, if aggrieved, should have the recourse to the provisions of appeal b....