JABRO ENGINEERS,CHINCHWAD PUNE vs. COMMISSIONER OF INCOME TAX, DELHI

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ITA 1761/PUN/2025Status: DisposedITAT Pune22 July 2026AY 2015-166 pages
AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the CIT(A)'s decision, stating that an appeal cannot be filed against a recovery notice as it is not an appealable order under Section 246A of the Income Tax Act. The grounds related to the levy of late fees were also dismissed as they did not emanate from the CIT(A)'s order.

What were the facts?

The assessee filed appeals against notices issued by the ITO(TDS) for recovery of late filing fees under Section 234E. The CIT(A) dismissed these appeals, holding that there is no provision to appeal against a recovery notice.

What were the issues?

Whether an appeal can be filed against a recovery notice for late filing fees. Whether grounds not emanating from the lower appellate authority's order can be considered.

Which sections of the Income-tax Act were involved?

Section 234E,Section 200A,Section 246A,Section 250

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE

Before: SHRI PAVAN KUMAR GADALE & SHRI Dr. DIPAK P. RIPOTE

For Appellant: Shri Bharat H Shah
For Respondent: Shri Rajesh Haladkar

आदेश /ORDER

PER Dr. DIPAK P. RIPOTE, A.M : These two appeals are filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals), NFAC, Delhi [Ld.CIT(A)], passed u/s. 250 of the Income Tax Act, 1961 (‘the Act’) for AYs 2014-15 and 2015-16 on 29.08.2024.

2.

We have heard both the parties and perused the records. For the sake of convenience and since issue involved is same, these two appeals were heard together and are disposed of by this common order.

3.

First, we shall take up the appeal in ITA No. 1760/PUN/2025 for AY 2014-15 as a lead case.

4.

The assessee has raised the following grounds of appeal :

ITA Nos.1760 & 1761/PUN/2025

“1. That on the facts and in the circumstances of the case, and in law, the Learned ITO(TDS)-1 has erred in levying late filing fee under Section 234E of the Income Tax Act for TDS statements pertaining to AYs 2014- 15, which were filed before 01.06.2015. 2. That the Learned Learned ITO(TDS)-1 failed to appreciate that prior to 01.06.2015, there was no enabling provision under Section 200A to levy late filing fee under Section 234E, and as such, the levy is without authority of law and void ab initio. 3. That the Learned Learned ITO (TDS)-1 erred in invoking Section 234E retrospectively, whereas the amendment to Section 200A enabling such computation came into force only from 01.06.2015 and cannot apply to TDS returns filed for periods before that date. 4. That the impugned intimation and levy of late fee under Section 234E are illegal, arbitrary, and liable to be quashed. 5. That the appellant craves leave to add, amend, alter, or withdraw any of the above grounds of appeal at the time of hearing.”

Submissions of Ld. AR 5. The Ld. AR submitted that there is delay of 114 days in filing of the appeal before this Tribunal. The Ld. AR submitted that in this case the assessee had filed appeal against the letter of Assessing Officer (AO) issued for recovery of demand raised u/s 234E of the Act. The Ld. AR submitted that the assessee filed an appeal against the said letter of the ITO for recovery of demand. The Ld. CIT(A) dismissed the appeal of the assessee on the ground that it is not maintainable. The Ld. AR submitted that the assessee was trying to obtain order u/s 201, hence, there was delay in filing of the appeal. The Ld. AR submitted that the facts in both the appeals are same.

6.

On specific query from the Bench, the Ld. AR admitted that the Ld. CIT(A) has rightly dismissed the appeal of the assessee which was filed against the recovery notice. The Ld.

ITA Nos.1760 & 1761/PUN/2025

AR admitted that there is no provision in the Act to file appeal against the recovery notice. However, the Ld. AR pleaded that the order of the Ld. CIT(A) may be set aside for de-novo adjudication.

Submissions of Ld. DR 7. The Ld. DR relied on the order of the Ld. CIT(A) and submitted that there is no provision in the Act to file appeal against the recovery notice. Therefore, the Ld. CIT(A) has rightly dismissed the appeal of the assessee.

Findings and Analysis :

8.

We have heard both the parties and perused the records. In this case, the Ld. CIT(A) has passed order for AY 2014-15 on 29.08.2024. The relevant paragraphs of the order of the Ld. CIT(A) are as under : “3. Observation and Decision: I have carefully perused the submission of the assessee and all other relevant documents available on records and considered the facts. It is found from these documents that the assessee had preferred an appeal against the notice issued by the ITO (TDS)-1, Pune for non payment of late filing fee u/s 234E of the I.T. Act 1961. Therefore, there is no order against which appeal was preferred. A notice is not an appealable order, hence appeal is not maintainable. In this circumstance I am in considered view that this appeal is treated as defective. Therefore, the appeal of the appellant is dismissed. 4. Conclusion: In the result, the appeal of the appellant is dismissed.”

9.

Thus, the Ld. CIT(A) specifically mentioned that the assessee had filed appeal against the notice issued by the ITO(TDS) for recovery. There is no provision in the Act to file an appeal against the notice issued by the ITO(TDS). Section 246A

ITA Nos.1760 & 1761/PUN/2025

of the Act enumerates the orders against which an appeal can be filed. Section 246A of the Act is reproduced as under : “246A. (1) Any assessee aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) against— ( a) an order against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under sub-section (1) or sub-section (1B) of section 143, where the assessee objects to the making of adjustments, or any order of assessment under sub-section (3) of section 143 or section 144, to the income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed; ( b) an order of assessment, re-assessment or re- computation under section 147 or section 150; ( c) an order made under section 154 or section 155 having the effect of enhancing the assessment or reducing a refund or an order refusing to allow the claim made by the assessee under either of the said sections; ( d) an order made under section 163 treating the assessee as the agent of a non-resident; ( e) an order made under sub-section (2) or sub-section (3) of section 170; ( f) an order made under section 171; ( g) an order made under clause (b) of sub-section (1) or under sub-section (2) or sub-section (3) or sub-section (5) of section 185 in respect of an assessment for the assessment year commencing on or before the 1st day of April, 1992; ( h) an order cancelling the registration of a firm under sub- section (1) or under sub-section (2) of section 186 in respect of any assessment for the assessment year commencing on or before the 1st day of April, 1992 or any earlier assessment year; 30a [(ha) an order made under section 201;] ( i) an order made under section 237; ( j) an order imposing a penalty under— ( A) section 221; or ( B) section 271, section 271A, section 271F, section 272AA or section 272BB; ( C) section 272, section 272B or section 273, as they stood immediately before the 1st day of April, 1989, in respect of an assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment years; ( k) an order of assessment made by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A on or after the 1st day of January, 1997;

ITA Nos.1760 & 1761/PUN/2025

( l) an order imposing a penalty under sub-section (2) of section 158BFA; ( m) an order imposing a penalty under section 271B or section 271BB; ( n) an order made by a Deputy Commissioner imposing a penalty under section 271C, section 271D or section 271E; ( o) an order made by a Deputy Commissioner or a Deputy Director imposing a penalty under section 272A; ( p) an order made by a Deputy Commissioner imposing a penalty under section 272AA; ( q) an order imposing a penalty under Chapter XXI; ( r) an order made by an Assessing Officer other than a Deputy Commissioner under the provisions of this Act in the case of such person or class of persons, as the Board may, having regard to the nature of the cases, the complexities involved and other relevant considerations, direct.”

10.

There is no provision to file appeal against the notice issued by the ITO(TDS). The Ld. AR has admitted that the assessee had filed appeal before the Ld. CIT(A) against the notice issued by the ITO(TDS). The Ld. AR has admitted that there is no provision in the Act to file appeal against such notice. In these facts and circumstances of the case, we do not find any mistake in the order of the Ld. CIT(A). The order passed by the Ld. CIT(A) is as per provisions of section 246A and section 250 of the Act. Accordingly, the order of the Ld. CIT(A) is sustained.

11.

The assessee in ground Nos. 1 to 4 have raised the contention that the ITO(TDS) has erred in levying late fee u/s 234E of the Act. However, this ground is not emanating from the order of the Ld. CIT(A). We have already mentioned that the assessee had filed appeal against the notice issued by the ITO(TDS). Therefore, ground Nos. 1 to 4 are not emanating from the order of the Ld. CIT(A). Therefore, there is no merit in ground Nos. 1 to 4. Accordingly, ground Nos. 1 to 4 raised by the assessee are dismissed.

ITA Nos.1760 & 1761/PUN/2025

12.

Ground No. 5 is general in nature, hence requires no adjudication.

13.

In the result, appeal of the assessee is dismissed.

ITA No. 1761/PUN/2025, AY 2015-16.

14.

The facts in the appeal in ITA No. 1761/PUN/2025 are identical to the facts in ITA No. 1760/PUN/2025. In ITA No. 1761/PUN/2025, it is observed that the assessee had filed appeal before the Ld. CIT(A) against notice issued by the ITO(TDS). There is no provision in the Income Tax Act to file an appeal against notice issued by the ITO(TDS). We have elaborately discussed the issue in ITA No. 1760/PUN/2025. Accordingly, our observations will apply mutatis mutandis to ITA No. 1761/PUN/2025.

15.

In the result, the appeal of the assessee is dismissed.

16.

To sum up, both the appeals of the assessee are dismissed.

Order pronounced in the open Court on 22nd July, 2026

Sd/- Sd/- (PAVAN KUMAR GADALE) (Dr. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे/Pune; दिन ांक/Dated : 22-07-2026 Ravi Kumar आदेश की प्रतितिति अग्रेतिि/Copy of the Order is forwarded to: 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent 3. The concerned Pr. CIT, Pune 4. DR, ITAT, ‘A’ Bench, Pune 5. ग र्ड फ ईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Assistant Registrar आयकर अपीलीय अदिकरण,पुणे / ITAT, Pune

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