Manish Gupta, Kanpur V. Income Tax Officer Ward1(2)(2), Kanpur

ITA 115/LKW/2023

AI Insights

The case involves an appeal by Shri Manish Gupta against the order of the Commissioner of Income Tax (Appeals), which dismissed his appeal for the assessment year 2016-17. The primary issues in the appeal were the additions made to the assessee's income by the Income Tax Officer, which included an estimated gross profit rate and an addition related to duty drawback. The CIT(A) dismissed the appeal on procedural grounds, noting the absence of a complete assessment order in the documents submitted by the assessee. The Tribunal found that the CIT(A) did not make sufficient efforts to obtain the full assessment order and thus set aside the CIT(A)'s decision, remanding the case for a decision on its merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113228 (ITAT-undefined)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: Lucknow
• Next Hearing Date: 05-07-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 16-04-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: REVENUE. AFTER HEARING LEARNED
• Keywords: Assessment record
• Section: 143(3)

Judgement Text

I.T.A. No.115/Lkw/2023 Assessment year:2016-17 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘SMC’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A. No.115/Lkw/2023 Assessment Year: 2016-17 Shri Manish Gupta, 166/3, Shastri Nagar, Kanpur. PAN:AJBPG3836G Vs. Income Tax Officer, Ward-1(2)(2), Kanpur. (Appellant) (Respondent) O R D E R PER ANADEE NATH MISSHRA:A.M. (A) This appeal vide I.T.A. No.115/Lkw/2023 has been filed by the assessee for assessment year 2016-17 against impugned appellate order dated 03/04/2023 vide DIN & Order No.ITBA/NFAC/S/250/2023- 24/1051846652(1) of learned Commissioner of Income Tax (Appeals) [learned “CIT(A)” for short]. The grounds of appeal are as under: “1. BECAUSE, the CIT(A) has erred in fact, without appreciating the fact, dismissed the appeal, which is illegal, bad in law, arbitrary and be deleted. 2. BECAUSE, the CIT(A) as well as AO upheld the addition of Rs.11,58,306/- on account of adhoc estimated GP rate @24% Appellant by None Respondent by Shri Sanjeev Krishna Sharma (Senior Departmental Representative (“Sr. DR" for short) Date of hearing 06/07/2023 Date of pronouncement 19/07/2023 I.T.A. No.115/Lkw/2023 Assessment year:2016-17 2 instead of 22.23% showing by the assessee, which addition is contrary to facts arbitrary bad in law and be deleted. 3. BECAUSE, the CIT(A) upheld and AO has added of Rs.91,212/- out of duty draw back claimed being Rs.51,440/-. The AO has treated the amount as 'other sources', the Assessing Officer was not justified to making the addition which addition are contrary to facts arbitrary bad in law and be deleted.” (A.1) In this case assessment order dated 10/06/2019 was passed u/s 143(3) of the Income Tax Act, 1961 (“IT Act” for short) wherein the assessee’s total income was determined at Rs.15,33,243/- (rounded off to Rs.15,33,240/-) as against returned income of Rs.3,35,170/-. In the aforesaid assessment order, an addition of Rs.11,58,306/- was made by estimating the assessee’s gross profit @25% on total export sale, instead of gross profit shown by the assessee @22.36% on the export sales of Rs.99,35,735/-. Further, another addition of Rs.91,212/- was made by the Assessing Officer, on account of duty draw back. The assessee filed appeal in the office of learned CIT(A). Vide impugned appellate order dated 03/04/2023, the learned CIT(A) dismissed the assessee’s appeal, observing as under: “5. While filing appeal; the appellant has uploaded only page 1 of the assessment order. Vide notices dated 15.11.2021 and 01.02.2023, the appellant was specifically asked to submit the complete copy of order u/s.143(3) which has been appealed against. However, the appellant has to submit copy of order u/s. 143(3) which has been appealed despite giving the assessee several opportunities. 6. The appellant has not submitted order u/s. 143(3) which is being appealed against despite being specifically asked to do so on numerous occasions. In view of the above discussion and more specifically the fact that the appellant has not submitted copy of order appealed against; the appeal is held to be non-maintainable and is therefore dismissed.” I.T.A. No.115/Lkw/2023 Assessment year:2016-17 3 (B) The present appeal has been filed by the assessee against the impugned appellate order dated 03/04/2023 of learned CIT(A). At the time of hearing before us, the assessee was represented by none in person. However, an adjournment application, signed by Mr. Sudhir Kumar Tiwari, Advocate, was filed stating that the counsel could not prepare written submissions due to some unavoidable circumstances. We find that on an earlier occasion also, when the hearing was fixed on 05/06/2023, an adjournment application was filed, the text of which was identically worded which shows that proforma applications for adjournment were being filed in a routine and mechanical manner. For ease of reference, the two letter of adjournment are reproduced below: “Before the Income Tax Appellate Tribunal, 'SMC' Bench Lucknow. Re:ITA No.115/LKW/2023 - Asstt. Year: 2016-17 Manish Gupta, 166/1 Shastri Nagar, Kanpur. PAN; AJBPG3836G Sir, The above mentioned appeal is fixed for hearing before the Hon'ble Bench on 05.06.2023. It is requested that the said hearing may kindly be adjourned to some other date. This request is in view of the fact that I, the counsel engaged due to some unavoidable circumstances could not prepare the written submissions. It is therefore humbly requested to kindly adjourn the above appeal to some other date. Thanking you, Yours faithfully, Sd/. Sudhir Kumar Tiwari Advocate Dated: 04.06.2023” ----------------------------------------------- I.T.A. No.115/Lkw/2023 Assessment year:2016-17 4 “Before the Income Tax Appellate Tribunal, 'SMC' Bench Lucknow. Re:ITA No.115/LKW/2023 - Asstt. Year: 2016-17 Manish Gupta, 166/1 Shastri Nagar, Kanpur. PAN; AJBPG3836G Sir, The above mentioned appeal is fixed for hearing before the Hon'ble Bench on 06.07.2023. It is requested that the said hearing may kindly be adjourned to some other date. This request is in view of the fact that I, the counsel engaged due to some unavoidable circumstances could not prepare the written submissions. It is therefore humbly requested to kindly adjourn the above appeal to some other date. Thanking you, Yours faithfully, Sd/. Sudhir Kumar Tiwari Advocate Dated: 05.07.2023” (B.1) At the time of hearing before us, Revenue was represented by Shri Sanjeev Krishna Sharma, learned Sr. DR for Revenue. After hearing learned Sr. DR for Revenue, and in view of foregoing paragraph (B) of this order, we decided to proceed with deciding this appeal. Accordingly, we rejected request for adjournment of hearing made in aforesaid letter dated 05/07/2023. The learned Sr. DR relied on the impugned appellate order of learned CIT(A) and supported the same. (C) On perusal of impugned appellate order dated 03/04/2023 of learned CIT(A), we find that learned CIT(A) was unable to decide the appeal on merits because the appellant assessee had not uploaded the assessment order in full. The appellant assessee had uploaded only page 1 of the assessment order, although the assessment order runs into 5 pages. While I.T.A. No.115/Lkw/2023 Assessment year:2016-17 5 the appellant assessee did not provide full assessment order to the learned CIT(A), the learned CIT(A) also made no efforts to obtain the full assessment order from the assessment record or by requisitioning the same from the Assessing Officer. In view of the foregoing, and having regard to the specific facts and circumstances of the present case before us, we set aside the impugned appellate order dated 03/04/2023 of learned CIT(A) with the direction to decide the assessee’s appeal on merits in accordance with law after providing reasonable opportunity to the assessee. We further direct the assessee to provide full copy of the assessment order to learned CIT(A) in order to remove the deficiency in appeal filed by the assessee in the office of learned CIT(A). We also direct the Assessing Officer to send a copy of the assessment order to the learned CIT(A) forthwith. All the grounds of appeal are treated as disposed of in accordance with the aforesaid directions. (D) In the result, the appeal is partly allowed for statistical purposes. (Order pronounced in the open court on 19/07/2023) Sd/. Sd/. (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) Judicial Member Accountant Member Dated:19/07/2023 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. D.R., I.T.A.T., 5. CIT(A) Assistant Registrar