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Facts
The assessee filed a petition for condonation of delay in filing Form 10B for AY 2020-21. The CIT(E) rejected the petition citing CBDT Circular No. 16/2024.
Held
The Tribunal held that an order passed by the CIT(E) under Section 119(2)(b) of the Income Tax Act is not appealable before the Income Tax Appellate Tribunal as it is an administrative order and not listed in Section 253(1) of the Act.
Key Issues
Whether an appeal against an order passed by the CIT(E) under Section 119(2)(b) of the Income Tax Act is maintainable before the Appellate Tribunal.
Sections Cited
119(2)(b), 139(4A), 12A, 253, 154, 250, 270A, 271, 271A, 271AAB, 271AAC, 271AAD, 271J, 272A
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Income Tax Appellate Tribunal, ‘C’ BENCH, CHENNAI
Before: SHRI GEORGE GEORGE KAND SHRI JAGADISH
O R D E R
PER GEORGE GEORGE K, VICE PRESIDENT:
This appeal filed at the instance of the assessee is directed against the order of the Commissioner of Income Tax (Exemption), Chennai dated 16.05.2025 passed under section 119(2)(b) of the Income Tax Act, 1961 (hereinafter called ‘the Act’) for the assessment year 2020-21.
The solitary issue argued on merits is with regard to maintainability of appeal filed against the order passed under section 119(2)(b) of the Act.
Brief facts of the case are as follows:
The assessee, M/s. Charsur Arts Foundation filed a petition on 07.04.2025 for condonation of delay in filing Form 10B for the assessment year 2020-21 before the CIT(E). Considering the submissions of the assessee and in view of the CBDT Circular No. 16/2024 dated 18.11.2024, the CIT(E) rejected the condonation petition filed by the assessee under section 119(2)(b) of the Act vide his order dated 16.05.2025.
Being aggrieved, the assessee raised the following grounds of appeal:
1. The Id CIT E erred in rejecting the assessee application for condonation of delay in filing Form 10B and upholding the order of Id CPC.
2. That on the facts and circumstances the case the Id CIT overlooked the fact that the assess filed the audit report within the extended due date of filing the return of Income u/s 139 (4A) of the Act for AY 20- 21.
3. The Id. CIT has overlooked the genuine hardship suffered by the assessee due to the auditor getting affected by corona virus and hence could not file Form 10B before 15-01-2021 but nevertheless filed on 02-02-21 which is well within the extended due date of 15- 02-2021 for filing the return of income.
4. The id CIT overlooked many judicial decisions which held that audit report can be filed any time before the assessment is completed and it is not mandatory to file within the due date. The filing of audit report is a mere procedure.
5. The Id. CIT erred in upholding the rejection of exemption provisions of the assessee u/s 11 alleging that the form 10B was filed late.
6. The Id CIT erred in upholding the order of Id. CPC taxing the entire income of Rs 61,94,537/- without allowing the application of capital expense of Rs.8,57,000/-and revenue expense of Rs. 52,27,853/-as provided by the provisions of the Act for charitable trusts registered u/s 12A of the Act.
7. Notwithstanding the above, the Hon'ble Supreme Court of India in M.A. No.665 of 2021 dated 23/09/2021 has ordered that in cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. In view of this the form 10B filed by the assessee is within the time.
8. For these grounds and other grounds that may be filed at the time of appeal the assessee prays the exemption claimed u/s 11 be restored.
6. The ld. AR Shri Hithesh, Advocate, by referring to the grounds of appeal, prayed the remand the matter to the file of the CIT(E) for fresh consideration to condone the delay in filing Form 10B.
The ld. DR Ms. R. Anita, Addl. CIT has submitted that in this case, the order passed by the CIT(E) under section 119(2)(b) of the Act is an administrative order and therefore, the same is not appealable before the Tribunal. Thus, the appeal filed by the assessee is liable to be dismissed as not maintainable.
We have considered the rival contentions and perused the material available on record. We note that the assessee filed a petition for condonation of delay on 07.04.2025 in filing Form No. 10B. The audit reports are to be filed one month before the due date for filing return of income. For AY 2020-21, the extended due date for filing audit report in Form 10B was 15.01.2021 and extended due date for filing return of income under section 139(4A) of the Act was 15.02.2021. The assessee filed the return of income on 02.02.2021 and Form 10B on 02.02.2021.
After considering the reasons stated by the assessee for the delay in the condonation petition, the CIT(E) rejected the petition seeking condonation of delay under section 119(2)(b) of the Act.
We note that the appeal filed by the assessee is not maintainable before the Tribunal for the reason that an assessee is not vested with any right to assail an order passed under section 119(2)(b) of the Act by preferring an appeal before the Income Tax Appellate Tribunal. For the sake of clarity, clause (a) to sub-section (1) of section 253 of the Act that specifically listed out the orders that are appealable before the Appellate Tribunal is reproduced herein below: “253. (1) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order— (a) an order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998 or, as the case may be, a Commissioner (Appeals) under section 154, section 250, section 270A, section 271, section 271A 90[, section 271AAB, section 271AAC, section 271AAD], section 271J or section 272A; or 90[(aa) an order passed by a Joint Commissioner (Appeals) under section 154, section 250, section 270A, section 271, section 271A, section 271AAC, section 271AAD or section 271J; or] 7. Thus, we note that an order passed by the CIT(E) under section 119(2)(b) of the Act does not find any mention in the list of orders that are appealable before the Appellate Tribunal. Thus, we are constrained to observe that the present appeal filed by the assessee is not maintainable before the Tribunal.
8. In the result, the appeal filed by the assessee is dismissed.
Order pronounced in the open court on 28th August, 2025 at Chennai.