Data Innovation India Pvt. Ltd, Ahmedabad V. The ITO, Ward-1(4), Ahmedabad

ITA 1458/AHD/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9685 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 04-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P B PARMAR
• Section: 143(3)

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 1458/AHD/2018 ( ASSESSMENT YEAR : 2007-08) DATA INNOVATION INDIA PVT. LTD. 100, SURDHARA BUNGALOWS, NR. GOYAL INTERCITY, BODAKDEV, AHMEDABAD / VS. THE ITO WARD-1(4), 3 RD FLOOR, PRATYAKSH KAR BHAWAN, NR. GOVT. POLYTECHNIC, PANJRAPOLE, AMBAVADI, AHMEDABAD - 380015 ./ ./ PAN/GIR NO. : AABCD2949K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI P. B. PARMAR, A.R. / RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R. DATE OF HEARING 19/09/2018 !'# / DATE OF PRONOUNCEMENT 26/09/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-5, AHMEDAB AD (CIT(A) IN SHORT), DATED 12.02.2018 ARISING IN THE ASSESSMENT ORDER DATED 15.07.2014 PASSED BY THE ASSESSING OFFICER (AO) U/S. 143(3) R.W.S. ITA NO. 1458/AHD/18 [DATA INNOVATION INDIA PVT. LTD . VS. ITO] A.Y. 2007-08 - 2 - 147 OF THE INCOME TAX ACT, 1961; (THE ACT) CONCERNING A SSESSMENT YEAR 2007-08. 2. ASSESSEE HAS FILED BELATED APPEAL BY 37 DAYS. CONSIDERING THE SMALLNESS OF DELAY, THE SAME STANDS CONDONED AND TH E APPEAL IS ADMITTED FOR HEARING. 3. THE ASSESSEE HAS TAKEN SEVERAL GROUNDS OF APPEAL SEEKING TO CHALLENGE THE ORDER OF THE CIT(A). HOWEVER, ON PER USAL OF THE ORDER OF THE CIT(A), WE NOTICE THAT THE CIT(A) HAS PASSED THE ORDER EX PARTE IN THE ABSENCE OF THE ASSESSEE. A BARE READING OF THE ORDER OF THE CIT(A) SHOWS THAT IT IS MARRED WITH NON-APPLICATION OF MIND AND A MERE REITERATION OF OBSERVATIONS OF AO. THIS HAS R ESULTED IN CONFIRMING THE ACTION OF AO TOWARDS ADDITIONS ON P ROTECTIVE BASIS. NEEDLESS TO SAY, WHILE THE AO CAN MAKE ADDITIONS ON PROTECTIVE BASIS, IT IS NOT OPEN TO AN APPELLATE AUTHORITY TO CONFIRM THE PROTECTIVE ACTION AS SUCH. THE APPELLATE AUTHORITY IS REQUIRED TO AR RIVE AT FINAL FINDING ON FACTS AND NEEDS TO TEST THE ACTION OF THE AO ON SUBSTANTIVE BASIS. THEREFORE, WE CONSIDER IT APPROPRIATE THAT A REASON ABLE OPPORTUNITY IS GIVEN TO THE ASSESSEE TO PLACE ITS DEFENSE BEFORE T HE CIT(A) TO ENABLE THE FIRST APPELLATE AUTHORITY TO PASS SPEAKING ORDE R AFTER TAKING COGNIZANCE OF THE MERITS OF THE CASE AS MAY BE ADVA NCED ON BEHALF OF THE ASSESSEE. THEREFORE, WE CONSIDER IT APPROPRIAT E TO SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE ALL THE ISSUES BACK TO THE FILE OF THE CIT(A) IN LARGER INTEREST OF JUSTICE WITH A VIEW TO ENABLE THE ASSESSEE TO AVAIL OPPORTUNITY ONCE MORE. NEEDLESS TO SAY, T HE ASSESSEE SHALL FULLY CO-OPERATE WITH THE PROCEEDINGS BEFORE CIT(A) WITHOUT ANY DEMUR , FAILING WHICH, THE CIT(A) SHALL BE AT LIBERTY TO CONCLUDE THE APPELLATE PROCEEDINGS IN ACCORDANCE WITH LAW. HENC E, THE ORDER OF THE CIT(A) IS SET ASIDE AND ALL THE ISSUES RAISED IN TH E CAPTIONED APPEAL ARE RESTORED BACK TO THE FILE OF THE CIT(A) FOR FRE SH ADJUDICATION IN ITA NO. 1458/AHD/18 [DATA INNOVATION INDIA PVT. LTD . VS. ITO] A.Y. 2007-08 - 3 - ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (MADHUMITA ROY) (PRADIP K UMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 26/09/2018 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 26/09/2018