GARUDA CONSTRUCTION AND ENGINEERING LIMITED,MUMBAI, MAHARASHTRA vs. DCIT, AAYKAR BHAVAN

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ITA 3253/MUM/2025Status: DisposedITAT Mumbai08 July 2025AY 2018-2019Bench: SMT. BEENA PILLAI (Judicial Member), SHRI GIRISH AGRAWAL ( (Accountant Member)1 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal condoned the delay in filing the appeal, finding sufficient cause due to unavoidable circumstances and no malafide intention. On the merits, the Tribunal noted that the impugned order was ex-parte and directed the Ld.CIT(A)/NFAC to adjudicate the issue after providing the assessee an opportunity of being heard and furnishing relevant documents.

What were the facts?

The assessee's appeal arises from an order passed by NFAC, Delhi, for assessment year 2018-19. The appeal was filed with a delay of 7 days, which the assessee attributed to circumstances related to the availability of a signatory and a previous email ID belonging to departed consultants. The Revenue initially relied on the lower authorities' orders.

What were the issues?

Whether the delay in filing the appeal can be condoned, and if the case should be remitted to the Ld.CIT(A)/NFAC for a fresh adjudication due to an ex-parte order being passed without proper opportunity of hearing.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 43B(a),Section 139(1)

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Cases cited in this judgment(1)Show list

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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI

Before: SMT. BEENA PILLAI & SHRI GIRISH AGRAWAL

For Appellant: Shri Anirudh Dave
For Respondent: Shri Arun Kanti Datta, CIT D.R
Hearing: 01.07.2025Pronounced: 08.07.2025

Per: Smt. Beena Pillai, J.M.: The present appeal filed by the assessee arises out of order dated 14/02/2025 passed by NFAC, Delhi for assessment year 2018-19 on following grounds of appeal :

“1.0 That on the facts and in the circumstances of the case, the impugned order u/s 143(3) passed by the A.O. is grossly A.Y. 2018-19 Garuda Construction And Engineering Limited erroneous, unjustified and bad in law and violates the principles of natural justice and is therefore liable to be quashed. 2.0 That on facts and in the circumstances of the case, the A.O. grossly erred in adding the sum of Delhi VAT amounting to 23,14,103/- u/s 43B(a) of the Income Tax Act, 1961 due to non- payment of the same on or before the due date of furnishing the return of income of the previous year u/s 139(1), without giving the assessee an opportunity of being heard. 3.0 That on facts and in the circumstances of the case, the A.O. grossly erred in disallowing '10% of Purchases' amounting to 8,75,29,987/- ignoring the fact that the appellant Company was not able to produce confirmation from suppliers owing to the Covid- 19 related lock down being in place across the nation. Further, the AO was not able to provide the names of the suppliers from the appellant Company had made purchases, but they had not filed their returns even after repeated requesting for the same. 4.0 That on facts and in the circumstances of the case, the A.O. grossly erred in disallowing '10% of labour and work contract charges' amounting to 1,55,80,064/- ignoring the fact that the appellant Company was not able to produce confirmation from vendors owing to the Covid-19 related lock down being in place across the nation. Further, the AO was not able to provide the names of the vendors from the appellant Company had made purchases, but they had not filed their returns even after repeated requesting for the same. 5.0 That the appellant craves leave, to add, to amend, to modify, to rescind, supplement or alter any other grounds stated here-in- above, either before or at the time of hearing of this appeal.”

2.

At the outset the Ld.DR submitted that, present appeal is filed with a delay of 7 days before this Tribunal. 2.1 The Ld.AR submitted that, the impugned order was received by the assessee on the Income Tax Portal as well as on the registered email ID of the assessee's account manager. As per the standard practice followed by the assessee, the said order was promptly forwarded to the Authorised Representative, who was routinely entrusted with handling the assessee's income tax A.Y. 2018-19 Garuda Construction And Engineering Limited matters. The draft appeal in Form No. 36 was duly prepared, and the applicable appeal fees were paid on 30-05-2025. However, the designated signatory to Form 36 was out of town as on that date. Due to the unavailability, the appeal could not be signed and filed within the stipulated time. 2.2 The Ld.AR emphasised that the delay was caused inadvertently due to unavoidable circumstances and therefore cannot be attributable to any malafide intention on behalf of the assessee. 2.3 On the contrary, the Ld. DR though could not controvert the submissions of the Ld.AR, relied on the orders passed by the authorities below. We have perused the submissions advanced by both sides in light of records placed before us.

3.

In our view, the assessee made out the reasonable cause for the delay that led to filing the present appeals before this Tribunal belatedly. Nothing to establish any contrary intention is brought on record by the revenue before this Tribunal. In our opinion there is sufficient cause for condoning the delay as observed by Hon’ble Supreme Court in case of Collector Land Acquisition Vs. Mst. Katiji & Ors., reported in (1987) 167 ITR 471 in support of his contentions. 3.1 We place reliance on following observations by Hon’ble Supreme Court in case of Collector Land Acquisition Vs. Mst. Katiji & Ors., reported in (1987) 167 ITR 471 wherein, Hon’ble Court observed as under:-

“The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to A.Y. 2018-19 Garuda Construction And Engineering Limited parties by disposing of matters on de merits". The expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :

1. 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. ......................................................1.Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”

3.2 Considering the submissions by both sides and respectfully following the observation by Hon’ble Supreme Court, we find it fit to condone the delay caused in filing the present appeals as it is not attributable to the assessee. Accordingly the delay in filing the present appeal before this Tribunal stands condoned.

4.

On the merits of the issue the Ld.AR submitted that, the order passed by the NFAC, Delhi is an ex-parte order. 4.1 He submitted that, during the course of filing of appeal against the assessment order in Form 35 email ID mentioned was Niranjan@pkhs.in. The Ld.AR submitted that, this mail id A.Y. 2018-19 Garuda Construction And Engineering Limited belonged to the consultants who left the assessee and was no longer employed at the time of when appellate proceedings started. As a result, the notices issued by the Ld.CIT(A) were not received by the assessee that led to passing of ex-parte order. The Ld.AR thus prayed that assessee may be granted with an opportunity of being heard and that the assessee has now updated the email Id on the e-filing portal which is correct and active. 4.2 On the contrary, the Ld.DR relied on the orders passed by the authorities below.

We have perused the submissions advance by both sides in the light of record placed before us.

5.

From the arguments of the Ld.AR, there does not arise in malafide intention on behalf of the assessee in not representing its case before the Ld.CIT(A)/NFAC there is nothing contrary to what has been submitted by the Ld.AR has been brought on record by the revenue. We therefore do not find any reason not to remit this issue back to Ld.CIT(A) for adjudicating the issue on merits. The assessee is directed to furnish all relevant documents/evidences in support of its claim and the Ld.CIT(A) is directed to pass a reasoned order on merits having regards to such documents/evidences furnished by the assessee. Needless to say that proper opportunity of being heard must be granted to the assessee. 5.1 The assessee has at the outset furnished a letter dated 01/07/2025 mentioning following email address which is as per the updated e-filing portal :

A.Y. 2018-19 Garuda Construction And Engineering Limited • graudagroup.it@gmail.com • piyush@mittalagarwal.com 5.2 The Ld.CIT(A)/NFAC is directed to issue notice of hearing to the assessee on one of the above email address updated on the e- filing portal. Accordingly the grounds raised by the assessee stands partly allowed for statistical purposes. In the result the appeal filed by the assessee stands partly allowed for statistical purposes. Order pronounced in the open court on 08/07/2025

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