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Income Tax Appellate Tribunal, DEHRADUN BENCH ‘DB’ : DEHRADUN
Date of Hearing : 22.09.2023 Date of Order : 22.09.2023
ORDER PER BENCH :
These appeals by the assessees are directed against the order of the ld. Commissioner of Income-tax for the concerned assessment years.
2. Since the issues are common and the appeals were heard together, these are being disposed off by this common order.
The common ground of appeal read as under :-
“1. Due to incompetency of the staff the TDS returns have not been filed on prescribed time that leads to the late fee and interest penalty.
due to non-availability of order u/s 200A of I.T. Act, 1961 at the time of CIT Appeal, the appeal has been rejected.”
In this case, the ld. CIT (A) has passed a short order and he has dismissed the assessee’s appeal in limine. The order of ld. CIT (A) may be gainfully referred as under :-
“This appeal is preferred against the order passed apparently u/s 200A of the I.T. Act, 1961 as can be seen from column No.2 - a of Form 35 on 04.10.2018.
2. But a careful perusal of the Form 35 shows that while as per Form 35 appeal has been filed against order u/s 200A, however from the documents attached which have been downloaded, it is noticed that what is being challenged is a Notice u/s 226(3) of the Income Tax Act, 1961 issued by ITO (TDS), Haldwani on 04.04.2018. This detail is corroborated from the Form 35 column 2 - band c wherein the Appellant has itself mentioned this detail. The matter was discussed with the counsel on phone today it was explained that prima facie a Notice u/s 226(3) of the LT. Act, 1961 cannot be challenged in appeal before CIT(A) in terms of Section 246A of the I.T. Act, 1961. Therefore this appeal is technically not maintainable since it challenges a Notice u/s 226(3) of the LT. Act, 1961 and does not challenge any order as defined/covered in the provisions of Section 246A of the I.T. Act, 1961.”
Against this order, assessees are in appeals before us. None appeared on behalf of the assessees. We have heard the ld. DR for the Revenue and perused the records.
Upon careful consideration, we note that grounds raised is regarding late fee, interest and penalty u/s 200A of the Income-tax Act, 1961 (for short 'the Act'). Ld. CIT (A) has noted that as per Form 35, the documents attached were in relation to a notice u/s 226(3) of the Act. Ld. CIT (A) held that prima facie a notice u/s 226(3) cannot be challenged in appeal before the ld. CIT (A0 in terms of section 246A of the Act.
Therefore, ld. CIT (A) dismissed the appeal in limine. We find that the assessee is in appeal before us also on the ground that due to non- competence at the level of staff, proper documents could not be filed. In our considered view, interest of justice would be served in these cases if the issue is remanded to ld. CIT (A). Ld. CIT (A) is directed to grant an opportunity to the assessee to rectify the mistake and allow filing of all requisite documents. Thereafter, ld. CIT (A) shall pass an order as per law.
In the result, all these appeals filed by the assessees are allowed for statistical purposes. Order pronounced in the open court on this 22nd day of September, 2023 after the conclusion of the hearing .