M/S. CONSTRUCTION ENGINEERSW,BARAZULA vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-3, SRINAGAR
Facts
The assessee's appeals were filed belatedly by 579 days due to alleged technical incompetency. The assessee is a contractor whose books of account were rejected under section 145(3) of the Act, and assessment was completed based on estimated profits. The first appellate authority dismissed the appeals in limine without adjudicating the grounds on merits.
Held
The Tribunal condoned the delay, imposing a token cost, and remanded the matters to the Assessing Officer for de novo assessment considering additional documentary evidence. The Tribunal did not express an opinion on the merits of the case.
Key Issues
Whether the appeals filed belatedly should be admitted for hearing on merits, and whether the matter should be remanded for fresh assessment considering additional evidence.
Sections Cited
250, 144, 145(3), 251(1)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: SH. UDAYAN DASGUPTA & SH. KRINWANT SAHAY
Per Udayan Dasgupta, J.M.:
Both the appeals are filed by the assessee against the order of the ld. CIT (A) NFAC, Delhi dated 09.07.2025 and 25.10.2023 passed u/s 250 of the Income Tax Act,
1961, which has emanated from the order of the AO, NFAC, Delhi dated 24.12.2019
and 21.04.2021 passed u/s 144 of the Act, 1961.
2 I.T.A. Nos. 712 & 600/Asr/2025 Assessment Years: 2017-18 & 2018-19 I.T.A. No. 600/Asr/2025 for A.Y. 2018-19
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.
3 I.T.A. Nos. 712 & 600/Asr/2025 Assessment Years: 2017-18 & 2018-19 5. Considering the explanation and the causes shown, we are not very convinced
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
4 I.T.A. Nos. 712 & 600/Asr/2025 Assessment Years: 2017-18 & 2018-19 expenditures claimed in audited accounts regarding the payments made to sub-
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.
5 I.T.A. Nos. 712 & 600/Asr/2025 Assessment Years: 2017-18 & 2018-19 12. We have heard the rival submissions and considered the materials on record and
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.
Instead of remanding the matter to the files of the ld. CIT(A) to consider all the
documentary evidences we find it more practical to remand the matter to the A.O. for
considering of additional documentary evidences now filed before the Tribunal, in
view of the fact that the assessment for A.Y. 2017-18 is also set aside by the ld. CIT(A)
u/s 251(1)(a) to the files of the A.O.
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.
I.T.A. No. 712/Asr/2025 for A.Y. 2017-18:
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
6 I.T.A. Nos. 712 & 600/Asr/2025 Assessment Years: 2017-18 & 2018-19 appeal also. However, in this case, it is seen that full compliance has been made by the
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.
We are of the opinion that the books of account and documentary evidences
which have been filed before the ld. first appellate authority needs to be examined by
the Assessing Officer (AO) regarding its veracity and authenticity and as such, we are
also in agreement with the ld. CIT(A) and we remand the matter back to the files of the
Assessing Officer for fresh assessment de-novo. As such, we upheld the order of the
ld. CIT(A) and the appeal of the assessee is dismissed.
7 I.T.A. Nos. 712 & 600/Asr/2025 Assessment Years: 2017-18 & 2018-19 19. In the result, the appeal of the assessee in ITA No. 600/Asr2025 is allowed for
statistical purpose and in ITA No. 712/Asr/2025 is dismissed.
Order pronounced in accordance with Rule 34(4) of the Income Tax (Appellate
Tribunal) Rules, 1963 as on 12.03.2026
Sd/- Sd/- (Krinwant Sahay) (Udayan Dasgupta) Accountant Member Judicial Member *GP/Sr.PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT concerned (4) The Sr. DR, I.T.A.T True Copy By Order
