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TMI Blog2024 (12) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... rded in the grounds of appeal including additional grounds of appeal as well contentions raised before me, which raises mixed question of law and facts, which requires verification of facts These issues go to the root of the matter and require proper adjudication after considering/verifying the facts as they raises mixed question of law and facts. Under these circumstances and fairness to both the parties, in the interest of justice, the appellate order of CIT(A) is set aside and the matter can go back to the file of ld. CIT(A) for fresh adjudication of the appeal of the assessee on merit. Appeal of the assessee is allowed for statistical purposes. - Shri Ramit Kochar, Accountant Member For the Assessee : Sh. Rajendra Sharma, Adv. For the Revenue : Sh. Shailendra Srivastava, Sr. DR ORDER This appeal in ITA No. 188/Agr/2022 for the assessment year 2014-15 has arisen from the appellate order dated 20.06.2022 (DIN Order No. ITBA/NFAC/S/250/2022-23/1043492972(1)) passed by ld. Commissioner of Income-tax(Appeals), NFAC, Delhi, wherein the ld. CIT(Appeals) has dismissed the appeal of the assessee, which appeal in turn has arisen from the assessment order dated 26.12.2016 passed by Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not comply with SCN s. Another SCN u/s 144 was issued by the AO u/s 144 dated 16.12.2016. Thereafter, counsel of the assessee, Shri Suraj Tripathi attended at fag end on 20.12.2016, and furnished part reply. Books of accounts, bills, vouchers and stock registers were not produced. The reason for non-production of books of accounts etc. was given that Accountant was out of town. Thereafter, the counsel attended on 26.12.2016 and filed reply. Assessing Officer observed from the reply that books of account and bills and vouchers were stated to be submitted by the assessee, but in-fact the same were not furnished. The assessee has produced manual stock register, which is mandatory for petrol pump having quantitative details, but the same was written from July, 2013 onwards. The Assessing Officer observed that in the absence of sale wise stock register having values and price, stock cannot be verified. The counsel of the assessee submitted that in the preceding financial year 2012-13, GP rate was 1.83% and in the impugned assessment year, GP rate declared was at 1.93%, and the assessee requested AO to accept the GP rate, but the Assessing Officer was of the view that complete details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which as per the AO were on the higher side. Since, the assessee furnished ledger accounts in respect of travelling expenses, but no bills and vouchers were produced, the Assessing Officer disallowed 50% of travelling expenses. 4. Aggrieved, the assessee filed first appeal with ld. CIT(Appeals). Ld. CIT(Appeals) issued as many as four notices to the assessee, but they were not complied with by the assessee. The ld. CIT(A) dismissed the appeal of the assessee. 5. Still aggrieved, the assessee has filed second appeal with the Income-tax Appellate Tribunal, and the ld. Counsel for the assessee, Shri Rajendra Sharma, Advocate appeared before the Bench and submitted that the assessee has raised an additional ground before the Tribunal and prayers was made to admit the additional ground of appeal, which reads as under : 6. That without rejecting the books of account addition made by applying the gross profit rates and by disallowing of expenses is against the law, no addition by way of applying of gross profit rates is called for, particularly when the books of account are duly accepted, the addition made by the A.O. and sustained by the learned CIT(Appeals) is liable to be deleted. 5.2T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld. CIT(Appeals) has decided the appeal ex parte in limine without deciding the issues on merits. Further, it was submitted that the purchase and sale has not been disturbed by the Assessing Officer and were accepted, and GP is the result of purchase and sale. It was also submitted that the Assessing Officer has not pin pointed any specific disallowable expenses, but rather disallowed the expenses on estimated basis. Reference was drawn to the provisions of section 37(1) of the Act. 5.4 Ld. Sr. DR, on the other hand, submitted that there is no estimation where the GP rate is applied based upon the nonproduction of books of accounts. Manual register was produced, which was also not complete and there are no other details or registers produced such as bills and vouchers etc. Attention was drawn to page 6 para 3 of the assessment order. There is no specific data in return of income as well as in the tax audit report as to the quantitative details of the purchase and sale etc. The Assessing Officer keeping in view past history as well as income of other dealers, has applied GP ratio of 2.17%. Ledgers were produced, but no bills or vouchers were produced. Only GP was estimated and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO were not submitted by the assessee. It is also observed that the assessee did not file any reply/compliance before the ld. CIT(Appeals) during the course of appellate proceeding to as many as four notices issued by ld. CIT(A), which led to dismissal of appeal of the assessee ex parte by ld. CIT(Appeals) in limine without deciding the issues arising in appeal on merits as required u/s. 250(6) of the Act. It is observed that the ld. CIT(A) dismissed the appeal of the assessee ex-parte in limine without deciding the issues arising in the appeal. The ld. CIT(A) is obligated to pass a reasoned and speaking order. The ld. CIT(A) did not even called for the assessment records from the AO. As per Section 250(6), the ld. CIT(A) has to state point for determination, his decision and The appellate order passed by ld. CIT(A) is clearly in violation of Section 250(6). The appellate order passed by ld. CIT(A) is not final, as it is subject to appellate proceedings with higher appellate authorities. The appellate order passed by ld. CIT(A) is subject to further appeal with ITAT u/s 253. The appellate order passed by ITAT is subject to further appeal before Hon ble High Court u/s 260A. The j ..... 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