2023 (3) TMI 1302 - AT - Income Tax

Maintainability of appeal before ITAT - condone delay in filing of Form No. 10B - order passed with reference to Section 12A - assessee submitted that remedy lies either by filing Writ Petition with Hon ble Jurisdictional High Court or filing petition with CBDT, against the order passed by ld. CIT(E) refusing to condone delay in filing late Form No. 10B beyond the time stipulated Section 139 read with Rule 17 of the Income-tax Rules, 1962 - HELD THAT - After considering the contentions of both the parties and perusing the material on record, we dismiss the appeal filed by the assessee as not maintainable. While dismissing the appeal, we have extracted the manner in which the appeal was filed with tribunal along with other factual background. Assessee has also claimed that it was under a genuine and bonafide belief that appeal against order passed by CIT(E) refusing to condone the delay in filing form no. 10B beyond due date is an order passed with reference to Section 12A which is an order challengeable before tribunal. There is some merit in the plea of the assessee that it was persuing legal remedy before tribunal under bonafide belief. So far as condonation of delay in filing appeal with tribunal belatedly is concerned, since the appeal itself is not maintainable before tribunal we do not propose to consider the condonation of delay where the appeal itself is not maintainable before tribunal. The Court/authority where the assessee, if so advised , chose to persue further legal remedy, can certainly take cognizance of the above factual matrix, in arriving at their own independent decision w.r.t. condonation of delay, if so sought by the assessee. Thus, in nutshell appeal of the assessee stand dismissed as not maintainable. We order accordingly.

Summary

Issues:
1. Maintainability of the appeal before the Income Tax Appellate Tribunal (ITAT) challenging the order of the Commissioner of Income-tax (Exemptions) refusing to condone delay in filing Form No. 10B for assessment year 2016-17.

Analysis:
The appeal before the ITAT challenged the order of the Commissioner of Income-tax (Exemptions) refusing to condone the delay in filing Form No. 10B for the assessment year 2016-17. The appellant argued that there were no provisions in the Income-tax Act, 1961, allowing such an order to be challenged before the tribunal. The appellant contended that the proper remedy was either filing a Writ Petition with the High Court or a petition with the Central Board of Direct Taxes (CBDT). The appellant requested dismissal of the appeal as not maintainable, citing a Mumbai tribunal order dismissing a similar appeal. The appellant acknowledged filing the appeal belatedly and sought liberty to pursue the appropriate remedy. The appellant explained the delay in filing, attributing it to the illness of the secretary and the COVID-19 lockdown. The appellant also referenced the Supreme Court's extension of limitation periods due to the pandemic. Despite the appellant's genuine belief in challenging the order, the ITAT concluded that the appeal was not maintainable before the tribunal.

The ITAT noted the appellant's argument that the appeal was filed under a genuine belief that it was challengeable before the tribunal. However, given that the appeal itself was deemed not maintainable, the ITAT did not consider the condonation of the delay in filing the appeal. The ITAT emphasized that the decision on condonation of delay could be pursued by the appropriate court or authority if the appellant chose to seek further legal remedy. Ultimately, the ITAT dismissed the appeal as not maintainable, allowing for the possibility of seeking legal recourse elsewhere.

In conclusion, the ITAT ruled that the appeal challenging the order of the Commissioner of Income-tax (Exemptions) regarding the delay in filing Form No. 10B for the assessment year 2016-17 was not maintainable before the tribunal. The ITAT acknowledged the appellant's genuine belief in pursuing the appeal but emphasized that the appeal was dismissed due to its lack of maintainability. The ITAT suggested that the appellant could explore other legal avenues for addressing the issue of delay in filing the appeal.