The Income Tax Appellate Tribunal (ITAT), ruled that ITAT cannot hear appeal against order passed u/s119(2)(b) of the Income Tax Act, 1961.
The assessee, Bhavesh Ghanshyam Advani filed an application before Commissioner of Income Tax (International Taxation)-1, seeking condonation of delay in filing tax returns for Assessment Years (AY) 2011-12 and 2012-13. After receipt of the application by assessee, a report was called from ITO. In his application assessee has mentioned that the taxes were already deducted and paid by way of TDS from the concerned parties, but he did not receive the TDS certificates even after chasing them multiple times over a period of two years or more.
To this effect, copies of correspondence through email have been filed and it is claimed that the delay in filing of return has been attributed to the same. In this background, the applicant has requested for condonation of delay in filing the tax return and consequential claim of refunds against TDS for AYs. 2011-12 and 2012-13.
The AO observed that from the perusal of ITS data it was noted that the claim of assessee for refund and the amount of returned income is correct. He has further mentioned that the deductor has paid the TDS into the government account and the same was duly reflected in assessee’s 26AS form. In such view of the matter, the Assessing Officer has not recommended for condonation of delay.
The Commissioner after considering the report from AO, held that it is not considered desirable or expedient to admit the claim of applicant within the meaning of section 119(2)(b) of the Income Tax Act, 1961, and accordingly, the applicant’s request for condonation of delay was rejected.
A Bench consisting of Aby T Varkey, Judicial Member and Gagan Goyal, Accountant Member observed that “If any assessee files such appeal before the ITAT against the order of Commissioner passed under section 119(2)(b) of the Income Tax Act is not admissible and even if admitted, ITAT is not empowered by virtue of section 253 of the Income Tax Act to decide the matter.”
“We further observed against such type of orders i.e order passed under section 119(2)(b) of the Income Tax Act can be appealed directly to the Secretary, CBDT or can be challenged through Writ before the Jurisdictional High Court” the Tribunal noted.
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