2022 (10) TMI 1191 - AT - Income Tax

Maintainability of appeal before ITAT against order passed u/s 119(2) - HELD THAT - As we found the contentions of the Revenue tenable that no appeal against the order passed u/s 119(2)(b) can be heard by ITAT, if any assessee files such appeal before the ITAT against the order of Commissioner passed u/s 119(2)(b) is not admissible and even if admitted, ITAT is not empowered by virtue of section 253 to decide the matter. We further observed against such type of orders i.e. order passed u/s 119(2)(b) can be appealed directly to the Secretary, CBDT or can be challenged through Writ before the Hon ble Jurisdictional High Court. In view of above earlier order passed by ITAT is beyond its Jurisdiction, hence, appeal of the assessee is rejected treating the same as infructuous.

Summary

Issues:
Condonation of delay in filing tax returns for AYs 2011-12 and 2012-13.

Analysis:
1. The appellant sought condonation of delay in filing tax returns for AYs 2011-12 and 2012-13, citing non-receipt of TDS certificates despite taxes being deducted and paid by the concerned parties. The Assessing Officer noted that the taxes were paid and reflected in the assessee's 26AS form, and e-filing facilities were available since 2006-07. The delay was not attributed to genuine hardship, leading to the rejection of the condonation request.

2. The Commissioner upheld the Assessing Officer's decision, emphasizing that possession of TDS certificates was not necessary to file returns within the stipulated time. The applicant's failure to file returns despite generating income in India and having taxes deducted indicated non-compliance with legal obligations. The Commissioner found no genuine hardship or valid reason for the delay, rejecting the condonation request under section 119(2)(b) of the IT Act, 1961.

3. The ITAT initially allowed the appeal for statistical purposes, directing fresh adjudication. However, the Revenue filed a Miscellaneous Application (M.A.) challenging the ITAT's jurisdiction to hear appeals against orders under section 119(2)(b). The M.A. was allowed, and the ITAT's order was recalled, leading to the dismissal of the appellant's appeal.

4. Upon reviewing the provisions of section 253 of the Act, the Tribunal concluded that orders under section 119(2)(b) are not appealable before the ITAT. Such orders can be directly appealed to the Secretary, CBDT, or challenged through a Writ before the Jurisdictional High Court. Therefore, the ITAT rejected the appeal, deeming it beyond its jurisdiction, and dismissed the appellant's appeals for AYs 2011-12 and 2012-13.

In conclusion, the appellant's request for condonation of delay was initially accepted by the ITAT but later dismissed due to jurisdictional limitations, as orders under section 119(2)(b) cannot be appealed before the ITAT. The dismissal of the appeals highlights the importance of complying with legal obligations and timely filing of tax returns to avoid adverse consequences.