2023 (4) TMI 998 - AT - Income Tax

Seeking waiver for late fee and rectification U/s. 154 before the Ld. AO - Late filing fee u/s. 234E - assessee has filed e-TDS return belatedly for the respective quarters of the impugned AY under consideration which was processed u/s. 200A of the Act - HELD THAT - Assessee filed a letter on 24/01/2019 seeking waive-off of late fee and rectification u/s.154 before the AO. AO did not pass any rectification order since it is not a petition u/s.154. ITO (TDS), Ward-1, Visakhapatnam responded to the assessee s letter stating that the waive-off of the late filing fee is out of his scope. In our view the assessee ought to have filed a petition seeking rectification of the order passed by the Ld. AO instead of filing a letter. Assessee filed an appeal based on the letter issued by the Ld. ITO (TDS), Ward-1, Visakhapatnam instead of filing the appeal against the intimation. CIT(A)-NFAC, following the provisions of section 246A of the Income Tax Act, 1961 dismissed the appeal of the assessee in limine as the same is not a maintainable appeal. One can clearly understand that the letter issued by the Ld. ITO, Ward-1, Visakhapatnam dated 10/05/2019 is nothing but a response to the letter filed by the assessee seeking waive-off of late filing fee imposed by the Ld. AO. Therefore it is not an appealable order before the Appellate Authorities as described in the provisions of the IT Act, 1961. CIT(A)-NFAC has rightly concluded that the grounds of appeal raised by the assessee cannot be adjudicated on merits since the appeal itself is not maintainable and therefore dismissed in limine. We have no hesitation to come to a conclusion that the Ld. CIT(A)-NFAC s order holds good as there is no infirmity in the order of the Ld. CIT(A)-NFAC and accordingly no interference is required. Assessee appeal dismissed.

Summary

Issues involved:
The delay in filing the appeals before the Tribunal and the condonation of the delay. The main issue is the levy of late filing fee under section 234E of the Income Tax Act, 1961, and the denial of waiver by the Income Tax Officer, TDS, Ward-1, Visakhapatnam. The appeal before the Ld. CIT(A)-NFAC was dismissed on the grounds of maintainability as it was filed against a letter denying waiver, not against the order for levying the penalty.

Delay in Filing Appeals:
The three appeals were filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, with a delay of 16 days. The delay was due to the managing partner of the assessee firm being affected by Covid symptoms and confined at home. The Tribunal condoned the delay, considering it a fit case for condonation, and proceeded to hear the appeals on merits.

Levy of Late Filing Fee:
The assessee filed e-TDS returns for the relevant quarters of the assessment year. A demand for late filing fee under section 234E of the Act was raised by the Ld. AO. The assessee sought waiver of the fee and rectification under section 154, which was denied by the Ld. ITO (TDS), Ward-1, Visakhapatnam. The appeal before the Ld. CIT(A)-NFAC was dismissed on the grounds of maintainability, as it was filed against the letter denying waiver, not against the order for levying the fee.

Maintainability of Appeal:
The Ld. CIT(A)-NFAC dismissed the appeal on the basis that it was not maintainable as it was filed against a letter denying waiver of late filing fee, rather than against the order for levying the penalty under section 234E of the Act. The grounds of appeal primarily challenged the order passed under sections 200A/234E, whereas the appeal was against the letter issued by the ITO (TDS), Ward-1, Visakhapatnam. The Tribunal upheld the decision, stating that the letter was not an appealable order under the provisions of the Income Tax Act, 1961.

Conclusion:
The Tribunal found that the letter issued by the Ld. ITO, Ward-1, Visakhapatnam, denying waiver of late filing fee, was not an appealable order as per the provisions of the Act. Therefore, the appeal filed against this letter was not maintainable. The Ld. CIT(A)-NFAC's decision to dismiss the appeal in limine was upheld, and all three appeals filed by the assessee were consequently dismissed.