Income Tax Appellate Tribunal - Pune
Omsairam Steel & Alloys Pvt Ltd,, Jalna vs Assistant Commissioner Of Income Tax,, ... on 12 July, 2017
आयकर अपीऱीय अधिकरण पण
ु े न्यायपीठ "बी" पण
ु े में
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "B", PUNE
सुश्री सुषमा चावऱा, न्याययक सदस्य एवं श्री अयिऱ चतुवेदी, ऱेखा सदस्य के समक्ष
BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM
आयकर अपीऱ सं. / ITA No.889/PUN/2015
यििाारण वषा / Assessment Year : 2011-12
The Dy. Commissioner of Income Tax,
Jalna Circle, Jalna .... अऩीऱाथी/Appellant
Vs.
M/s. The Shree Om Rolling Mills Pvt. Ltd.,
D-51/2, Addl. MIDC Area,
Jalna - 431203 .... प्रत्यथी / Respondent
PAN: AAACT6741J
आयकर अपीऱ सं. / ITA No.994/PUN/2015
यििाारण वषा / Assessment Year : 2012-13
The Asst. Commissioner of Income Tax,
Jalna Circle, Jalna .... अऩीऱाथी/Appellant
Vs.
Shree Om Rolling Mills Pvt. Ltd.,
P.No.D-51/2, Addl. MIDC Area,
Jalna - 431203 .... प्रत्यथी / Respondent
PAN: AAACT6741J
2
ITA Nos.889 & 994/PUN/2015 and Ors.
आयकर अपीऱ सं. / ITA NoS.891 & 892/PUN/2015
यििाारण वषा / Assessment Years : 2010-11 & 2011-12
The Dy. Commissioner of Income Tax,
Jalna Circle, Jalna .... अऩीऱाथी/Appellant
Vs.
M/s. Om Sai Ram Steel & Alloys Pvt. Ltd.,
F-1, Addl. MIDC Area,
Jalna - 431203 .... प्रत्यथी / Respondent
PAN: AAACO6232H
प्रत्याक्षेप सं./CO Nos.13 & 14/PUN/2017
यििाारण वषा / Assessment Years : 2010-11 & 2011-12
(out of ITA Nos.891 & 892/PUN/2015)
M/s. Om Sai Ram Steel & Alloys Pvt. Ltd.,
F-1, Addl. MIDC Area,
Jalna - 431203 ... प्रत्याक्षेऩक/ Cross objector
PAN: AAACO6232H
Vs.
The Asst. Commissioner of Income Tax,
Jalna Circle, Jalna .... प्रत्यथी / Respondent
Assessee by : Shri J.P. Bairagra
Revenue by : Shri Sardar Singh Meena
सन
ु वाई की तारीख / घोषणा की तारीख /
Date of Hearing : 06.07.2017 Date of Pronouncement: 12.07.2017
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
Out of this bunch of appeals, two appeals in the case of M/s. The Shree Om Rolling Mills Pvt. Ltd. filed by the Revenue are against separate orders of CIT(A)/CIT(A)-I, Aurangabad relating to assessment years 2011-12 & 2012-13 against respective orders passed under section 143(3) of the Income-tax Act, 3 ITA Nos.889 & 994/PUN/2015 and Ors.
1961 (in short 'the Act'). The other two appeals in the case of M/s. Om Sai Ram Steel & Alloys Pvt. Ltd. filed by the Revenue are against separate orders of CIT(A)-I, Aurangabad relating to assessment years 2010-11 & 2011-12 against respective orders passed under section 143(3) of the Act. The assessee in the case of M/s. Om Sai Ram Steel & Alloys Pvt. Ltd. also filed Cross Objections against the appeals of Revenue relating to assessment years 2010-11 & 2011-
12.
2. All the appeals filed by the Revenue and Cross Objections filed by the assessee were heard together and are being disposed of by this consolidated order for the sake of convenience. However, reference is being made to the facts and issue in ITA No.889/PUN/2015 to adjudicate the issue.
3. The Revenue in ITA No.889/PUN/2015 has raised the following grounds of appeal:-
i) On the facts & in the circumstances of the case, the Ld. CIT(A), Aurangabad has erred in deleting the addition of Rs.5,97,60,564/- made on account of suppressed production of TMT bars.
ii) On the facts & in the circumstances of the case, the Ld. CIT(A), Aurangabad has erred in not following his own orders in the other cases of steel manufacturers from Jalna passed earlier wherein he had estimated the profit @ 4% of the estimated sale value of suppressed production.
iii) On the facts & in the circumstances of the case, the Ld. CIT(A), Aurangabad has erred in relying upon the Order of the ITAT in the case of SRJ Peety Steels Pvt. Ltd., Jalna for AYs 2007-08 & 2008-09 dt. 16/01/2015 wherein such addition has been deleted.
iv) On the facts & in the circumstances of the case, the Ld. CIT(A), Aurangabad has erred in not appreciating the fact that the assessee company is engaged in unaccounted production of goods which has been substantiated during the search actions by the DGCEI.
v) On the facts & in the circumstances of the case, the order of the Ld. CIT(A), Aurangabad be quashed and that the Order of the AO be restored.
4. The learned Authorized Representative for the assessee pointed out that the issue arising in this bunch of appeals is squarely covered by various orders 4 ITA Nos.889 & 994/PUN/2015 and Ors.
of Tribunal including in assessee's own case relating to assessment years 2007- 08 & 2008-09. It was further pointed out by the learned Authorized Representative for the assessee that there is no allegation of clandestine removal of goods without payment of Excise duty against the assessee by the Excise Department and no physical verification had been carried out either by the Excise or Income Tax Department as to consumption of electric units per metric ton. Further, the learned Authorized Representative for the assessee also submitted that no petition had been filed before the Settlement Commission or the Commissioner of Excise, hence, there is no merit in the said addition made in the hands of assessee which was deleted by the CIT(A).
5. The learned Departmental Representative for the Revenue placed reliance on the order of Assessing Officer to point out that in view of erratic consumption of electricity, addition is warranted.
6. We have heard the rival contentions and perused the record. Briefly, in the facts of the case, the assessee was engaged in the manufacturing of TMT bars. The assessee has filed return of income on 28.09.2011 declaring total income at Rs.8,97,74,184/-. The Assessing Officer had assessed the income of assessee under section 143(3) of the Act at Rs.15,42,05,650/- by making additions of Rs.6,44,31,470/- on various counts. The said additions includes the addition of Rs.5,97,60,564/- on account of income from sale of alleged suppressed production. The Assessing Officer had estimated the profit on alleged suppression of production on account of erratic consumption of electricity. The CIT(A) in turn, relying on the orders of Tribunal in the case of SRJ Peety Steels Pvt. Ltd. in assessment years 2007-08 and 2008-09, order dated 16.01.2015 has deleted the addition made by the Assessing Officer. The Revenue is in appeal against the order of CIT(A). The case of assessee on the 5 ITA Nos.889 & 994/PUN/2015 and Ors.
other hand, before us was that in the case of present assessee, there was no case of any clandestine removal of goods without payment of Excise duty by the Excise authority or even by the Income Tax authority. Further, no demand had been raised by the CCE for alleged suppression of production or any petition was moved before the DGCEI or the Settlement Commission.
7. Admittedly, in the case of assessee, there was no enquiry or search or investigation by the Excise Department, under which any case of suppressed production was detected and / or clandestine removal of goods without payment of Excise duty was made by the Excise Department. The assessee had not moved any petition before any authority of Excise or the Income Tax authority admitting any clandestine removal of goods without payment of Excise duty. The sole basis for addition in the hands of assessee was erratic consumption of electric units. The Assessing Officer on the basis of addition made in the case of various other units and earlier years in the case of assessee had made the addition in the hands of assessee on account of estimation of profit on suppressed production, which in turn, was based on consumption of electricity.
8. We find that similar issue of estimation on account of erratic consumption of electricity arose before the Tribunal in bunch of appeals. The Tribunal in Shree Om Rolling Mills Pvt. Ltd. Vs. Addl. CIT in ITA Nos.125 & 127/PN/2012 and cross appeals in ITA Nos.430 & 431/PN/2012, relating to assessment years 2007-08 & 2008-09 vide order dated 15.07.2015 had considered the issue at length vide paras 54 to 87 and vide paras 88 and 89. The Tribunal had deleted the addition on both counts i.e. addition made on account of suppressed production and alleged investment in purchases, which read as under:-
"88. In the entirety of the above said facts and circumstances, we hold that no extrapolation of sales for 300 days can be made in the hands of the assessee on the basis of the evidence found for clandestine removal of material without 6 ITA Nos.889 & 994/PUN/2015 and Ors.
payment of Excise duty for few days, which in turn, has been admitted by the assessee by way of filing petition before the Settlement Commission, which in turn, has also been accepted by the Settlement Commission. Merely because the Settlement Commission accepted the claim of the assessee of additional Excise duty payable on the said clandestine removal of material without payment of Excise duty does not establish the case of the Revenue that the said figures of additional production should be utilized for extrapolating the sales in the hands of the assessee for the entire year. Admittedly, the assessee had offered additional income on the said clandestine removal of material without payment of Excise duty, which is to be added as income in the hands of the assessee. The learned Authorized Representative for the assessee fairly admitted that in case the said additional income has not been added while computing the income in the hands of the assessee for the respective years, the same may be directed to be added in the hands of the respective assessee in respective years. Accordingly, we direct the Assessing Officer to verify from the records for the respective years and include the additional income on account of such admitted clandestine removal of material without payment of Excise duty, by the assessee either before the Settlement Commission or before the Excise authorities, in the hands of the assessee. We have heard bunch of appeals and in some years, there is no admission of clandestine removal of material without payment of Excise duty and in those years in the absence of any evidence and / or any investigation or inquiry made by the Assessing Officer and where the Assessing Officer has failed to collect additional evidence, no addition can be made in the hands of the assessee, by way of extrapolation of sales for 300 days on account of any evidence found in any preceding or succeeding years. Further, no addition can be made in the hands of the assessee, where no petition has been filed by the assessee before the Settlement Commission in any of the respective years or before the Excise authorities.
89. Since we have deleted the addition in the hands of assessee on both accounts i.e. addition made on account of erratic consumption of electricity and addition proposed on the basis of evidence found for the part of the year of clandestine removal of material without payment of Excise duty, next addition made in the hands of the assessee i.e. alleged investment in the purchases for effecting such sales which goods have been clandestinely removed, is not sustainable. Accordingly, we hold that no addition can be made in the hands of the assessee on account of alleged investment in purchases under section 69C of the Act."
9. Thereafter, Corrigendum order was passed by the Tribunal substituting para 88 of the Tribunal vide order dated 17.02.2016 and it was held as under:-
"3. On perusal of the record, we find that by an error, the findings of the Tribunal in para 88 with special reference to from line 17 to 22, needs correction to the extent that the additional income to be added in the hands of the assessee is equivalent to profits on suppressed production @ 4% or actual GP rate declared by the assessee whichever was higher. In view thereof, we pass this corrigendum order and the para 88 i.e. from line 17 to 22 would now be substituted by following para.
"88. ...... Admittedly, the assessee had offered additional income on the said clandestine removal of material without payment of Excise duty, which is to be added as income in the hands of the assessee. The learned Authorized Representative for the assessee fairly admitted that in case the said additional income has not been added while computing the income in the hands of the assessee for the respective years, the same may be directed to be added in the hands of the respective assessee in 7 ITA Nos.889 & 994/PUN/2015 and Ors.
respective years. Accordingly, we direct the Assessing Officer to verify from the records for the respective years and include the additional income on account of such admitted clandestine removal of material without payment of Excise duty, by the assessee either before the Settlement Commission or before the Excise authorities, in the hands of the assessee. Accordingly, we direct the Assessing Officer to verify from the records for the respective years and include in the hands of assessee, the additional income @ 4% or actual G.P. rate declared by the assessee for that year, whichever is higher, on value of such admitted clandestine removal of material without payment of Excise duty, by the assessee before the Excise authorities. Thus, the assessee is directed to file the requisite details of proceedings before the Excise authorities, before the Assessing Officer in order to compute the additional income in the hands of assessee in the respective years."
10. The issue arising before us identical to the issue before the Tribunal in The Shree Om Rolling Mills Pvt. Ltd. Vs. Addl. CIT (supra). Further, during the year under consideration, neither investigation by the DGCEI nor any suppressed production had been detected and admitted by the assessee. Further, the assessee had not moved any petition before the Settlement Commission or any other Excise authorities. In the totality of the above said facts and circumstances and in the absence of any evidence collected by the Assessing Officer of alleged removal of goods without payment of Excise duty, merely on the basis of estimation of alleged suppressed production in case of other concerns of Jalna, there is no merit in making any addition in the hands of assessee. Further, the Tribunal in series of cases with lead order in Shree Om Rolling Mills Pvt. Ltd. Vs. Addl. CIT (supra) in assessment years 2006-07 and 2007-08 vide order dated 15.07.2015 has deleted the addition made in the hands of assessee itself on account of alleged suppression of production. Following the same parity of reasoning, we dismiss the grounds of appeal raised by the Revenue.
11. The facts and issue in ITA Nos.994/PUN/2015, 891/PUN/2015 & 892/PUN/2015 are identical to the facts and issue in ITA Nos.889/PUN/2015 and 8 ITA Nos.889 & 994/PUN/2015 and Ors.
our decision in ITA No.889/PUN/2015 shall apply mutatis mutandis to ITA Nos.994/PUN/2015, 891/PUN/2015 & 892/PUN/2015.
12. The assessee filed Cross Objections in support of the order of CIT(A). Since the appeals of Revenue are dismissed, the Cross Objections filed by the assessee become infructuous.
13. In the result, all the appeals of Revenue and the Cross Objections of assessee are dismissed.
Order pronounced on this 12th day of July, 2017.
Sd/- Sd/-
(ANIL CHATURVEDI) (SUSHMA CHOWLA)
ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER
ऩण
ु े / Pune; ददनाांक Dated : 12th July, 2017.
GCVSR
आदे श की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to :
1. अऩीऱाथी / The Appellant;
2. प्रत्यथी / The Respondent;
3. आयकर आयुक्त(अऩीऱ) / The CIT(A)/CIT(A)-I, Aurangabad;
4. आयकर आयुक्त / The Pr.CIT-I, Aurangabad;
5. ववबागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩण ु े "फी" / DR 'B', ITAT, Pune;
6. गार्ड पाईऱ / Guard file.
ु ार/ BY ORDER, आदे शािस सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune