ANKIT KUMAR, AGRA V. Income Tax Officer-3(1), Lucknow

ITA 207/LKW/2022

AI Insights

The case involves Ankit Kumar, the appellant, who contested the assessment order for the year 2018-19, which significantly increased his assessed income from Rs. 7,88,794 to Rs. 20,98,260. The appellant's appeal to the CIT(A) was dismissed summarily, leading to the current appeal before the ITAT. The ITAT found that the CIT(A) had not provided a speaking order as required under Section 250(6) of the Income Tax Act, 1961, and noted procedural deficiencies in the assessment process, including inadequate opportunity for the appellant to present his case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123055 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 23-05-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 27-11-2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Set aside; Capital Gains
• Section: 234B; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “A”, LUCKNOW BEFORE SHRI. SUDHANSHU SR4IVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.207/LKW/2022 Assessment Year: 2018-19 Ankit Kumar Flat No.34, Saomi Apartment Dayalbagh, Agra v. ITO-3(1) Lucknow TAN/PAN:ARAOJ0757F (Appellant) (Respondent) Appellant by: None Respondent by: Shri Harish Gidwani, Sr. D.R. Date of hearing: 24 05 2023 Date of pronouncement: 30 05 2023 O R D E R PER ANADEE NATH MISSHRA, A.M.: (A) Appeal in I.T.A. No.207/LKO/2022 has been filed by the assessee for Assessment Year 2018-19 against the impugned appellate order dated 28.9.2022 vide DIN & Order No. ITBA/NFAC/S/250/2022-23/1046058615(1) of ld. Commissioner of Income Tax (Appeals) [“ld. CIT(A)” for short]. The grounds of appeal are as under: 1. BECAUSE, upon due consideration of facts and highly unjustified in summarily without consideration of the in law the 'NFAC was dismissing the appeal evidences brought on records and in utter state of confusion. 2.BECAUSE, while dismissing the appeal the 'NFAC' had completely overlooked the written submission furnished by on addition made. Thus, the order cannot be sustained having been passed in a summary manner without consideration of the submission filed by the 'appellant'. Page 2 of 5 3. BECAUSE, the authorities making and sustaining below were unjustified in following additions ignoring the submission made and evidences on records: Shipping Charges.....Rs.6,81,612/ Salary expenses....... Rs.2,31,530/- Advertisement Exp. Rs.3,76,234/- 4. BECAUSE, the authorities below erred in law as well as on facts of the case in making and confirming, the addition under the head Capital Gains on account of sale of securities at Rs. 12,566/- ignoring the submission made and evidence brought on records. 5. BECAUSE, in any case and in any view of the matter impugned addition and impugned assessment order is bad in law, illegal, unjustified, contrary to facts and law based upon incorrect assumption of facts and further without allowing adequate opportunity of hearing in violation of principals of natural justice and therefore, the additions. made deserves to be quashed. 6. BECAUSE, the assessment order to the extent making addition is bad in law and against the facts of the case. 7. BECAUSE, denies its liability against Interest charged under section 234A based on incorrect assumption of facts and Interest under section 234B and 234C is incorrectly charged. (B) In this case, the assessment order dated 19.2.2021 was passed by the Assessing Officer determining the assessee’s total income at Rs.20,98,260/- as against the returned income of Rs.7,88,794/-. (C) Aggrieved, the assessee filed the appeal in the office of the ld. CIT(A). Vide impugned appellate order dated 28.9.2022, the ld. CIT(A) dismissed the assessee’s appeal. Aggrieved again, Page 3 of 5 the assessee has filed this present appeal in the Income Tax Appellate Tribunal [“ITAT” for short]. At the time of hearing before us, the assessee was represented by none, whereas the Revenue was represented by Shri. Harish Gidwani, learned Sr. Departmental Representative for the Revenue [“ld. Sr. D.R.” for short]. In the absence of any representation from the assessee’s side, we heard the ld. Sr. D.R. (D) At the time of hearing, it was noticed by us that the ld. CIT(A) has not passed a speaking order, and has dismissed the assessee’s appeal in a summary manner. The relevant part of the order of the ld. CIT(A) is reproduced as under: “I have carefully considered the facts of the case. As per the findings of the AO in the case, it is noticed that as contended by the appellant the expenses of Rs.12,89,376/- and capital gains on account of sale of securities of Rs.12,566/- was disallowed by the Assessing Officer for the assessment year 2018-19. The Assessing Officer, on careful consideration of the submission did not find the same acceptable. After intensive study of the case, the contentions of the appellant have been carefully examined. This order is being passed due to lack of concrete evidence and full facts of the case. All the grounds of appeal are dismissed.” (D.1) Section 250 (6) of the Income Tax Act, 1961 [“I.T. Act” for short] makes it mandatory for the ld. CIT(A) to dispose of the appeal through a speaking order on all the grounds of appeal. For ready reference, section 250(6) of the I.T. Act is reproduced as under: “250 (6). The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.” Page 4 of 5 (D.2) Since the ld. CIT(A) failed to pass a speaking order, and thereby failed to meet the requirement prescribed under section 250(6) of the I.T. Act, we are of the view that the impugned appellate order dated 28.9.2022 of the ld. CIT(A) should not be upheld as such. On perusal of the records, we further find that the Assessing Officer as well as the assessee did not have the benefit of proper representation by the assessee before the Assessing Officer in the course of the assessment proceedings; because, although the Assessing Officer issued notices of hearing to the assessee, we find that the last notice of hearing was issued on 17.02.2020, whereby the date of compliance was fixed for 19.02.2020 and we are of the view that the time available to the assessee for compliance between the aforesaid dates of 17.02.2020 and 19.02.2020 was not sufficient. (D.2.1) In view of the foregoing, we are of the view that the impugned appellate order dated 28.9.2022 of the ld. CIT(A) should be set aside and the Assessing Officer should be directed to pass a fresh assessment order in accordance with law after providing reasonable opportunity to the assessee. The learned Senior Departmental Representative for the Revenue [“ld. Sr. D.R.” for short] was also in agreement with this view. In view of the foregoing, in the specific facts and circumstances of the present appeal before us, we set aside the impugned appellate order dated 28.9.2022 of the ld. CIT(A) and we direct the Assessing Officer to pass de novo assessment order in accordance with law after providing reasonable opportunity to the assessee. All the grounds of appeal are treated as disposed of in accordance with the aforesaid directions. Page 5 of 5 (E) In the result, the appeal is partly allowed for statistical purposes. Order pronounced in the open Court on 30/05/2023. Sd/- Sd/- [SUDHANSHU SRIVASTAVA] [ANADEE NATH MISSHRA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:30/05/2023 JJ: Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR By order Assistant Registrar