Commissioner Of Income Tax (Exemptions) Delhi v. Kameswar Raohon'ble Mr. Justice Vinod Kumar

$~63 IN THE HIGH COURT OF DELHI AT NEW DELHI+ITA 373/2025 COMMISSIONER OF INCOME TAX (EXEMPTIONS) DELHI CORAM:HON'BLE MR. JUSTICE V. KAMESWAR RAOHON'BLE MR. JUSTICE VINOD KUMAR O R D E R%02.09.2025 CM APPL. 54999/2025(condonation of delay in filing)-CM APPL. 55000/2025(condonation of delay in refiling) 1.For the reasons stated in the application, the delay of 3 days in re-filing and the delay of 56 days in filing the appeal is condoned. 2.The applications are disposed of.ITA 373/2025ITA 373/2025 3.The appeal has been filed under Section 260A of the Income TaxAct, 1961, (‘the Act’) challenging the order dated 23.12.2024 of the IncomeTax Appellate Tribunal (‘ITAT’) in ITA No. 3195/Del/2024 relatable to theAssessment Year (‘AY’) 2018-2019. 4.The challenge by the assessee is to the order of the Commissioner ofIncome Tax (Exemption), Delhi (‘CIT (Exemption)’) dated 14.06.2024whereby, the CIT (Exemption) has rejected the petition/application filed bythe respondent herein seeking condonation of delay under Section 119(2)(b)of the Act in filing Form 10B of the Assessment Year (‘AY’) 2018-19. 5.Suffice to state that the ITAT has allowed the appeal filed by therespondent by stating in Paragraph 05 as under: “Considered the submissions of both the parties and material placed onrecord. Admittedly in this matter, the return of income was filed on31.10.2018, Form 10B was filed on 16.11 .2018 and we observed that thetime for filing the Form 10B was extended for this assessment year to31.10.2018 vide CBDT Circular dated 08.10.2018. Further we observed thatthe assessee has filed the Audit Report ( Form 10 B ) dated 31.10.2018 in thepaper book. It clearly shows that the Form 10B was available with theassessee while filing the return of income. However, it was actually filed onlyon 16.11.2018 with a delay of 16 days in the IT Portal . This is only aprocedural lapse and cannot penalize the assessee overlooking the charitableworks carried on by the assessee. We, therefore, respectfully relying onvarious case law submitted in case law compilation and our observationabove, we condone the delay of 16 days and deem it just and proper to directthe ld. Assessing Officer to consider Form 10 available on record at the timeof processing the return of income. Ld. Assessing Officer is, therefore,directed to consider Form 10B available on record and to pass appropriateorders.” 6.Mr. Abhishek Maratha, learned counsel for the appellant, by drawingour attention to the proposed questions of law framed in the appeal, wouldsubmit that the appeal before the ITAT was not maintainable as the order isnot an appealable order. 7.The learned counsel for the respondent has not shown anythingcontrary to contend that the appeal before the ITAT was maintainable. Inother words, the appeal against the order dated 14.06.2024 of the CIT(Exemption) was not maintainable before the ITAT. 8.The connected submission of Mr. Abhishek Maratha is in respect ofsubstantial question no. (ii), which according to him needs to be answered infavour of the appellant for the simple reason that as the appeal itself was notmaintainable, the ITAT could not have condoned the delay of 16 days forfiling the Form 10B. 9.Noting the above submissions, admit. 10.The following substantial questions of law arise for consideration inthis appeal:this appeal: “(1) Whether, on the facts and circumstances of the case, the Hon’ble ITAThas erred in accepting the appeal application filed by the assessee againstthe rejection order for condonation of delay in filing Form 10B passed bythe Ld. CIT(E), New Delhi u/s 119(2)(b) of the Act without havingjurisdiction?has erred in accepting the appeal application filed by the assessee againstthe rejection order for condonation of delay in filing Form 10B passed bythe Ld. CIT(E), New Delhi u/s 119(2)(b) of the Act without havingjurisdiction? 9.Noting the above submissions, admit. 10.The following substantial questions of law arise for consideration inthis appeal:this appeal: “(1) Whether, on the facts and circumstances of the case, the Hon’ble ITAThas erred in accepting the appeal application filed by the assessee againstthe rejection order for condonation of delay in filing Form 10B passed bythe Ld. CIT(E), New Delhi u/s 119(2)(b) of the Act without havingjurisdiction?has erred in accepting the appeal application filed by the assessee againstthe rejection order for condonation of delay in filing Form 10B passed bythe Ld. CIT(E), New Delhi u/s 119(2)(b) of the Act without havingjurisdiction? (2) Whether, on the facts and in the circumstances of the case and in law, theHon’ble ITAT has erred in ignoring the fact that the rejection order passedu/s 119(2)(b) for delay in filing form 10B is not an appealable order beforethe Hon’ble ITAT, as per section 253 of the Income Tax Act?”Hon’ble ITAT has erred in ignoring the fact that the rejection order passedu/s 119(2)(b) for delay in filing form 10B is not an appealable order beforethe Hon’ble ITAT, as per section 253 of the Income Tax Act?” 11.In view of the submissions of the learned counsel for the parties asnoted above, we allow the appeal and set aside the order passed by the ITATas the appeal filed by the respondent before the ITAT challenging the orderdated 14.06.2024 (for the AY 2018-19) of the CIT (Exemption) was notmaintainable and as such the Tribunal could not have entertained the appealand decided the same in the manner it has done. 12.Consequentially, the order passed by the ITAT on the merits of theissue raised by the respondent in the appeal is also set aside. 13.Accordingly, the appeal is allowed. The substantial questions of laware decided in favour of the appellant/revenue and against the respondent. 14.Since the challenge was against the order dated 14.06.2024, whichwas not maintainable, liberty shall be with the petitioner to seek such remedy as available in law. 15.During the course of hearing, the learned counsel for the respondenthas stated that the pursuant to the order of the ITAT the respondents haveissued an appeal effect order dated 01.07.2025 and also amount of Rs.17,12,511/- has been credited in the account of the respondent/assessee.16.It is made clear that the period during which the respondent wasprosecuting the appeal before the ITAT and also this writ petition, the sameshall not be taken into consideration for the purpose of computingdelay/laches/limitation. V. KAMESWAR RAO, J SEPTEMBER 2, 2025tg VINOD KUMAR, J