Order passed under section 119(2)(b) of the Act is not appealable before ITAT

Order passed under section 119(2)(b) of the Act is not appealable before the Tribunal

In a recent judgment, ITAT Chennai has held that an order passed by the Commissioner under section 119(2)(b) of the Act is an administrative order; therefore, the same is not appealable before the Tribunal. Also, order passed u/s 119(2)(b) of the Act does not find any mention in the orders that are appealable before the Tribunal under section 253 of the Act. 

ABCAUS Case Law Citation:
4591 (2025) (06) abcaus.in ITAT

In the instant case, the assessee had challenged the order passed by the Commissioner of Income Tax (Exemption) under section 119(2)(b) of the Income Tax Act, 1961 (the Act).

The assessee had filed delay condonation petition before the CIT(E) in belatedly filing audit report in Form No. 10B. The said petition filed under section 119(2)(b) of the Act was dismissed by the CIT(E).

The assessee filed present appeal before the ITAT challenging the action of the CIT(E) as contrary to the law in the facts and circumstances of the case.

The assessee argued that no opportunity was given by the CIT(E) and in the absence of assessee, the CIT(E) rejected the delay condonation petition. The assessee argued that the matter may be remanded to the file of the CIT(E) for fresh consideration.

Placing reliance on the decision of the Co-ordinate Bench it was contended that on similar circumstances, the Tribunal remanded the matter to the file of the CIT(E) for fresh consideration.

On the other hand, the Revenue submitted that 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 was liable to be dismissed as not maintainable.

The Tribunal observed that the appeal filed by the assessee was 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 Appellate Tribunal.

The Tribunal stated that Section 253(1) of the Act that specifically lists out the orders that are appealable before the Appellate Tribunal.

The Tribunal further noted that a plain reading of the order of the Co-ordinate Bench as relied on by assessee along with the provisions under section 253 of the Act, 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. Therefore, the appeal filed by the assessee was not maintainable before ITAT.

The Tribunal further observed that Hon’ble High Court of Gujarat had observed that an order passed by the Commissioner under section 119(2)(b) of the Act is an administrative order; therefore, the same is not appealable before the Tribunal. Apart from that, it was observed that as an order passed under section 119(2)(b) of the Act does not find any mention in the orders that are appealable before the Tribunal under section 253 of the Act; therefore, no such appeal was maintainable before the Tribunal. With the above reasoning the High Court 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.

In view of the above the Tribunal held that the appeal filed by the assessee was not maintainable and dismissed it accordingly.

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