M/s. Ishwar Arts, Surat V. The Income tax Officer,Ward-2(2), Baroda

ITA 248/AHD/2011

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8828 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-03-2017
• Assessment Year: 1994-1995
• Appeal Filed On: 31-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: M K PATEL
• Section: 143(3)

Judgement Text

, ,LK ,LK,LK ,LK- -- -,E ,E,E ,E- -- -LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO. 248/AHD/2011 ( / ASSESSMENT YEAR :1994-95) M/S. ISHWAR ARTS, 12, PANORAMA COMPLEX R.C. DUTT ROAD BARODA / VS. THE INCOME TAX OFFICER WARD-2(2) BARODA ./ ./ PAN/GIR NO. : AAEFM 1875 B ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M. K. PATEL, A.R. / RESPONDENT BY : SHRI ROOPCHAND, ADDL. CIT(DR) / DATE OF HEARING 20/03/2017 !'# / DATE OF PRONOUNCEMENT 31/03/2017 $% / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/A PPELLANT IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX(APPEALS)- II, BARODA, DATED 27/10/2010 FOR THE ASSESSMENT YEA R (AY) 1994-95 AND FOLLOWING GROUND OF APPEAL HAS BEEN TAKEN: THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESS ING OFFICER WAS RIGHT IN NOT RECONSIDERING THE ADDITIONS MADE O N ACCOUNT OF SUPPRESSION OF CLOSING STOCK AMOUNTING TO RS. 5,01, 300/- AND PRINTING CHARGES PAID TO AJAY CORRUGATING & PLASTIC INDUSTRIES PVT. LTD. AMOUNTING TO RS. 2,04,131/-. ITA NO.248/AHD/ 2011 M/S. ISHWAR ARTS VS. ITO ASST.YEAR 1994-95 - 2 - 2. IN THE APPEAL, ASSESSEE HAS AGITATED ON TWO GROU NDS AND SAME WERE DISMISSED BY THE ITAT AS THOSE GROUNDS WERE NOT PRE SSED ASSESSMENT UNDER SECTION 143(3) WAS PASSED ON 31/12/2009, WHER E TWO DISALLOWANCES WERE MADE AND UPON APPEAL CIT(A) REMI TTED MATER BACK TO THE FILE OF THE AO AS PER THE DIRECTION IN THE O RDER. 3. ASSESSEE PREFERRED SECOND APPEAL BEFORE THE ITAT . THE ITAT DISMISSED THE APPEAL OF THE ASSESSEE BECAUSE GROUND S WERE NOT PRESSED BY THE ASSESSEE FOR REMITTED MATTER BACK BY THE CIT TO THE AO. 4. THEREFORE, OWING TO THE FACT THAT MATTER WAS ALREADY REMITTED BACK TO THE AO BY THE CIT(A). 5. THEREFORE, THERE WAS NO SUBSTANTIVE PREJUDICE S UBSISTED AGAINST THE ASSESSEE. IT WAS FOR THIS REASON THAT THE GROUNDS B EFORE THE ITAT WERE NOT PRESSED BUT IN CONSEQUENCE ITAT DISMISSED AS SAME W ERE NOT PRESSED. HOWEVER, AO FAILED TO APPRECIATE THAT DIRECTION GIV EN BY THE CIT(A) IN HIS FIRST ORDER DATED 07/10/1997 WERE NOT REVERSED BY THE ITAT AND DISMISSED THE APPEAL OF THE ASSESSEE. ON THE ISSUE INVOLVED IN THE PRESENT APPEAL COULD NOT PUT THE ASSESSEE IN WORSER POSITIO N THEN WHAT IT WAS PRIOR TO FILING APPEAL BEFORE THE ITAT. THE CIT(A) ALSO WRONGLY INTERPRETED THE FACT SITUATION DE-HORSE THE POSITIO N OF LAW. 6. THE LEARNED AR ACCORDINGLY PRAYED THAT THE ISSUE RAISED IN THE PRESENT APPEAL BE SET ASIDE TO THE FILE OF THE AO F OR REFRAMING THE ITA NO.248/AHD/ 2011 M/S. ISHWAR ARTS VS. ITO ASST.YEAR 1994-95 - 3 - ASSESSMENT IN TERMS OF THE DIRECTION OF THE CIT(A) IN ORDER DATED 07/10/1997. 7. LEARNED DR RELIED UPON THE ORDER OF THE AUTHORIT IES BELOW. 8. WE HAVE HEARD THE RIVAL SUBMISSION AND FIND CONS IDERABLE FORCE IN THE ARGUMENTS RAISED ON BEHALF OF THE ASSESSEE. IT IS TRITE THAT ASSESSEE CANNOT BE PUT IN WORSER POSITION THAN WHAT IT WAS I N THE APPEAL PREFERRED BY THE ASSESSEE. IT IS NOT THE CASE THAT REVENUE HA D FILED ANY APPEAL IN FIRST ROUND OF PROCEEDING BEFORE THE ITAT. IN THE CIRCUMS TANCES, PLEA RAISED BY THE ASSESSEE IS JUSTIFIED. THE ORDER OF THE CIT( A) IN FIRST GROUND GRANTING RELIEF TO THE ASSESSEE BY WAY OF SET ASIDE BY THE AO COULD NOT HAVE BEEN TAKEN AWAY BY THE ITAT IN PURSUANCE OF TH E APPEAL FILED BY THE ASSESSEE. THUS, WE SET ASIDE THE ORDER AND REMI T THIS MATTER BACK TO THE FILE OF THE AO WHO WILL DECIDE THE MATTER IN TE RMS OF CIT(A) ORDER DATED 07/10/1997. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 31/03/2017 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRAS AD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 31/03/2017 PRITI YADAV, SR. PS ITA NO.248/AHD/ 2011 M/S. ISHWAR ARTS VS. ITO ASST.YEAR 1994-95 - 4 - !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A)-II, BARODA. 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION 20/03/2017 (DICTATION-PAD 4 PAG ES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20/03/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S 20/03/2017 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 20/03/2017. 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DISPATCH OF THE ORDER