M/S. CONSTRUCTION ENGINEERSW,BARAZULA vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-3, SRINAGAR

Condonation of delay: It is pointed out by the registry that the appeal has been filed belatedly by 579 (five hundred seventy-nine) days. The assessee has filed an application for condonation of delay with an affidavit explaining the delay to have arisen on account of technical incompetency of the assessee and his counsel to attend to the appellate order already uploaded in the portal on 25.10.2023. He further submitted that there was no deliberate intention of the assessee in causing the delay and since the assessee was totally unaware of the existence of the order itself in the portal, the appeal before the Tribunal could not be filed in time and he prayed for condonation of delay and for admission of the appeal for hearing on merits, in absence of any willful neglect on the part of the assessee.

The ld. DR objects to the said condonation application, considering the long delay of 579 days, but leaves the discretion to the bench.

The ld. AR of the assessee presents in course of hearing pleaded that the assessee was not conversant with the technical aspect of the matter and as such he could not access the portal for downloading the appellate order and he prays for condonation of the delay and for admission of the appeal to be heard on merits because according to him there was no intentional or willful default. regarding the reasons put-forth for delay of 579 days. We also find that the assessee is supported by qualified chartered accountants in course of hearing before the Assessing Officer and before appellate authorities and as such the excuse of technical incompetency is not a sufficient cause.

However, in the interest of justice, we condone the delay of 579 days and admit the appeal for hearing on merits and we also note that it is a case where neglect on the part of the assessee cannot be overlooked and we are of the opinion that it is a fit case where costs should be imposed and as such, we impose a token cost of Rs. 10,000/- (ten thousand) is being imposed on the assessee payable to the ‘Prime Minister’s National Relief Fund’ within 15 (fifteen) days from the date of communication of this order, (evidences to be produced before jurisdictional Assessing Officer (JAO).

There are three grounds of appeal taken by the assessee in Form No. 36 and the main grievance of the assessee is that the ld. first appellate authority was not legally justified in upholding the rejection of books of account u/s 145(3) of the Act by the AO and has also disputed the application of net profits on gross receipts.

Brief facts emerging from the records are that the assessee is a contractor (civil works) and the return filed declaring a total income of Rs. 2.78 cores has been selected for scrutiny and in absence of documentary evidences being produced in support of the contractors and other connecting direct and indirect expenses, the books of account has been rejected u/s 145(3) of the Act and assessment has been completed on a total income of Rs. 8.84 crores by estimation of profits @ 10% of the gross receipts.

The matter carried in appeal has been dismissed by the ld. CIT(A) in absence of any representation or response being filed by the assessee to various notices issued on five different dates (as evident from para 4 of the appellate order).

Now, the ld. AR of the assessee in course of hearing has requested for furnishing of additional documentary evidences and has filed a paper book containing 139 (one hundred thirty-nine) pages, but was candid enough to admit that these documentary evidences were never furnished before the ld. first appellate authority. He has also not disputed the receipt of notices issued from the office of the ld. first appellate authority on various dates. He simply prayed for another opportunity of hearing so that the documentary evidences can be produced before the ld. first appellate authority for proper adjudication.

The ld. DR relied on the order of the ld. CIT(A) but has no objection if the matter is remanded back to the files of the ld. first appellate authority for considering the same on merits. we find that the ld. first appellate authority has dismissed the appeal in limine without adjudicating the grounds of appeal contained in Form No. 35 on merits of the case.

To take a logical view we set aside this case back to the A.O. for fresh assessment ‘de-novo’ to be taken up together along with assessment year 2017-18, and we also direct the assessee to file all supporting documentary evidences and to fully co-operate in the fresh assessment proceedings.

We have not expressed any opinion on merits of the case.

In the result, the appeal of the assessee is allowed for statistical purpose.

This appeal is filed by the assessee against the order of the ld. CIT(A) dated 09.07.2015 for A.Y. 2017-18. The nature of business of the assessee is the same as in the assessment year 2018-19 and our observations applies mutatis mutandis to this assessee by filing written submissions supported by all documentary evidences before the ld. first appellate authority on various dates (and the same is evident from para 4 of the appellate order). The assessee has complied with all materials on different dates of hearing by filing written submissions and complete documentary evidences in support of his case.

Even after full compliance of the assessee, the ld. first appellate authority has not adjudicated on the grounds of appeal contained in Form No. 35 on merits but has remanded the matter back to the files of the Assessing Officer u/s 251(1) of the Act due to the fact that the assessment order has been passed ex-parte u/s 144 dated 24.12.2019.