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Facts
The assessee filed an appeal against an order of the Commissioner of Income Tax (Exemption) rejecting their application in Form-10B under section 119(2)(b) of the Income Tax Act, 1961. The Department argued that the appeal was not maintainable as orders under section 119(2)(b) are not appealable before the ITAT.
Held
The Tribunal held that an appeal against an order passed by the Commissioner under section 119(2)(b) is not maintainable before the Appellate Tribunal. This is because such orders are administrative in nature and not listed as appealable orders under section 253 of the Act. The Tribunal relied on a Gujarat High Court judgment to support this view.
Key Issues
Whether an appeal against an order passed by the Commissioner of Income Tax under Section 119(2)(b) of the Income Tax Act, 1961, is maintainable before the Income Tax Appellate Tribunal.
Sections Cited
119(2)(b), 253
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘C’ BENCH: CHENNAI
Before: SHRI SS VISWANETHRA RAVI & SHRI JAGADISH
आयकर अपीलीय अिधकरण, ‘सी’ "ायपीठ, चे"ई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH: CHENNAI "ी यस यस िव"ने" रिव, "ाियक सद" एवं "ी जगदीश, लेखा सद" के सम' BEFORE SHRI SS VISWANETHRA RAVI, JUDICIAL MEMBER AND SHRI JAGADISH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.1257/Chny/2024 िनधा9रण वष9 /Assessment Year: 2021-22
Sri Vashista Foundation, The Commissioner of Income Tax 19, Thalayari Theru, Vs. (Exemptions), Chennai. Ambagarathur Post, Thirunallar Commune, Karaikal – 609 601. Puducherry (UT) [PAN AAGTS 0007F] (अपीलाथ"/Appellant) (""यथ"/Respondent) अपीलाथE की ओर से/ Appellant by : Shri D. Anand, Advocate GHथE की ओर से /Respondent by : Shri R. Clement Ramesh Kumar, CIT सुनवाई की तारीख/Date of Hearing : 13.08.2024 घोषणा की तारीख /Date of Pronouncement : 21.08.2024 आदेश / O R D E R PER JAGADISH, A.M : Aforesaid appeal filed by the assessee for Assessment Year (AY) 2021-22 arises out of the order of Learned Commissioner of Income Tax (Exemption), Chennai [hereinafter “CIT(E)”] dated 29.02.2024 rejecting the application filed by the assessee in Form-10B u/s. 119(2)(b) of the Income Tax Act, 1961 (hereinafter “the Act’”). :- 2 -:
The Ld. DR, Shri R. Clement Ramesh Kumar, CIT, at the outset
submitted that the appeal is not maintainable as the appeal filled is against order u/s. 119(2)(b) of the Act which is not appealable before
the Hon’ble ITAT as per section 253 of the Act and relied upon the order of ITAT, Raipur Bench in the case of Shrishti Institute of Medical
Science and Research Centre vs. CIT [2023] 156 taxmann.com 183
(Raipur – Trib.). The Ld. DR has further submitted the appropriate
forum for making application for condonation of delay u/s. 119(2)(b) of the Act if the delay beyond the 365 days is PCCIT as has been brought out in CBDT Circular No.16/2022, New Delhi, dated
19.07.2022. 3. The Ld. AR fairly agreed with the submission of Ld. DR and prayed for liberty to file application for condonation of delay before
PCCIT.
We have heard the rival submissions, and perused the materials
available on record. The issue of maintainability has come before Co-
ordinate Bench ITAT, Raipur in the case of Shrishti Institute of Medical Science and Research Centre vs. CIT, in ITA No 100 to 102
of 2020 for A Y 2016-17 to 2018-19 , and the bench has held as under: :- 3 -:
“4. We have heard the ld. Authorized Representatives for both the parties, and perused the order passed by the CIT(Exemption), Bhopal u/s 119(2)(b) of the Act.
At the very outset, we may hereinabove observe that the captioned appeal filed by the assessee appellant is not maintainable before us. We say so for the reason that an assessee is not vested with any right to assail an order passed by a Commissioner u/s 119(2)(b) of the Act by preferring an appeal before the Appellate Tribunal. For the sake of clarity, Section 253(1) of the Act that specifically lists out the orders that are appealable before the Appellate Tribunal is culled out as under:-
“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 271AAC, section 271AAD], section 271J or section 272A; or 271AAB, section [(aa) an order passed by a Joint Commissioner (Appeals) under section 154, section 250, section 270A, section 271AAD or section 271J; or] 271, section 271A, section 271AAC, section (b) an order passed 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, after the 30th day of June, 1995, but before the 1st day of January, 1997;
or (ba) an order passed by an Assessing Officer under sub-section (1) of section 115VZC; or [(c) an order passed by,
(i) a Principal Commissioner or Commissioner under section 12AA or section 12AB or under clause (vi) of sub-section (5) of section 80G or under section 263 or under section 270A or under section 271 or under section 272A or an order passed by him under section 154 amending any such order; or (ii) a Principal Chief Commissioner or Chief Commissioner or a Principal Director General or Director General or a Principal Director or Director under section 263 or under section 272A or an order passed by him under section 154 amending any such order; or] :- 4 -:
(d) an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147 or section 153A or section 153C in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order; †or (e) an order passed by an Assessing Officer under sub-section (3) of section 143 or section 147 or section 153A or section 153C with the approval of the Principal Commissioner or Commissioner as referred to in sub-section (12) of section 144BA or an order passed under section 154 or section 155 in respect of such order; †or (f) an order passed by the prescribed authority under sub-clause (iv) or sub-clause (v) or sub-clause (vi) or sub-clause (via) of clause (23C) of section 10.” As an order passed by a Commissioner u/s 119(2)(b) of the Act does not find any mention in the list of orders that are appealable before the Appellate Tribunal, therefore, we are constrained to observe that the present appeal filed by the assessee is not maintainable before us. Our aforesaid view is supported by the judgment of the Hon’ble High Court of Gujarat in the case of CIT Vs. Rasida Ibrahimbhai Vohra (2014) 42 taxmann.com 85 (Gujarat). The Hon’ble High Court had observed that as an order passed by the Commissioner u/s 119(2)(b) is an administrative order; therefore,the same is not appealable before the Tribunal. Apart from that, it was observed that as an order passed u/s 119(2)(b) does not find any mention in the orders appealable before the Tribunal u/s 253 of the Act; therefore, no such appeal was maintainable before the Tribunal. Accordingly, the High Court based on its aforesaid observations had set-aside the order of the Tribunal, observing, that the latter had erroneously entertained the appeal against the order passed by the Commissioner u/s 119(2)(b) of the Act and had restored the matter to his file to re-adjudicate the matter afresh. 6. On the basis of our aforementioned deliberations, the captioned appeal filed by the assessee appellant is dismissed as not maintainable.”
In view of the above, the appeal filed by the assessee is dismissed as not maintainable with liberty to file application before
PCCIT as per CBDT circular, supra. :- 5 -:
In the result, the appeal filed by the assessee is dismissed as not maintainable.
Order pronounced on 21st August, 2024. (यस यस िव"ने" रिव) (जगदीश) (Jagadish) (SS Viswanethra Ravi) लेखा लेखा सद"य लेखा लेखा सद"य सद"य /Accountant Member सद"य सद"य / Judicial Member "याियक "याियक सद"य "याियक "याियक सद"य सद"य चे"ई/Chennai, "दनांक/Dated: 21st August, 2024. EDN/-
आदेश क" "ितिलिप अ"ेिषत/Copy to: 1. अपीलाथ"/Appellant 2. ""थ"/Respondent 3. आयकर आयु"/CIT, Coimbatore 4. िवभागीय "ितिनिध/DR 5. गाड" फाईल/GF