Income Tax Appellate Tribunal - Pune
Income-Tax Officer,, vs Shri Anand Omprakash Pahade,, Jalna on 30 June, 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.2019/PUN/2014
यििाारण वषा / Assessment Year : 2010-11
The Income Tax Officer,
Ward 1(3), Jalna .... अऩीऱाथी/Appellant
Vs.
Shri Anand Omprakash Pahade,
Prop. of M/s. Adinath Steel Re-Rolling Mill,
Plot No.A-28/05, Addl. MIDC,
Jalna .... प्रत्यथी / Respondent
PAN: ALSPP4628A
अऩीऱाथी की ओर से / Appellant by : Shri Ajay Modi
प्रत्यथी की ओर से / Respondent by : None
सुनवाई की तारीख / घोषणा की तारीख /
Date of Hearing : 27.06.2017 Date of Pronouncement: 30.06.2017
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
This appeal filed by the Revenue is against the order of CIT(A), Aurangabad, dated 25.08.2014 relating to assessment year 2010-11 against order passed under section 143(3) of the Income-tax Act, 1961 (in short 'the Act').
2ITA No.2019/PUN/2014
Shri Anand Omprakash Pahade
2. The Revenue has raised the following ground of appeal:-
1. Whether on the facts and in the circumstances of the case the CIT(A) was justified in quantifying the suppressed production @ 4% even after accepting the fact that the assessee indulged in clandestine removal of goods without payment of taxes.
2. On the facts and in the circumstances of the case whether the CIT(A) was justified in not appreciating the fact that manufacturing and administrative expenses on the unaccounted production worked out in the appellate order had already been borne by the production shown in the books of account?
3. On the facts and in the circumstances of the case whether the CIT(A) was justified in not appreciating the fact that the working capital is required for purchase of raw material and day to day activities for production of goods every year.
4. The order of the AO be restored and that of the CIT(A) be vacated.
3. Despite service of notice, none appeared on behalf of the assessee and since the issue is covered, we proceed to decide the present appeal after hearing the learned Departmental Representative for the Revenue.
4. The issue arising in the present appeal is against the quantification of suppressed production on clandestine removal of goods without payment of Excise duty @ 4% and further, the Revenue is in appeal vide ground of appeal No.3 in deleting the addition on account of working capital required for purchase of raw material and day to day activities for production of goods.
5. Briefly, in the facts of the case, the Assessing Officer noted that various manufacturing units located at Jalna and surrounding areas were engaged in the business of manufacture of TMT bars / mild steel bars. The Assessing Officer further noted that Intelligence was gathered by the Directorate General of Central Excise Intelligence (DGCEI), Zonal Unit, Mumbai, in the case of 3 ITA No.2019/PUN/2014 Shri Anand Omprakash Pahade other concerns, who were the manufacturers of TMT bars that they were involved in clandestine clearance of finished products through a broker Shri Umesh Modi. Searches were conducted by the DGCEI on 18.12.2006 and various incriminating documents were recovered which indicated the clandestine removal of goods by the manufacturers of TMT bars by manufacturers located at Jalna. Shri Umesh Modi confirmed that he had acted as sub-broker and also the statement of Shri Anil D. Lingade, was recorded that he had acted as broker for several manufacturers from Jalna. The said information and evidences were confronted by the DGCEI to the manufacturers of TMT bars and who in turn, admitted that they had supplied TMT bars to the brokers without paying Excise duty and also confirmed the modus operandi adopted. They further identified the manufacturers of ingots and billets from whom the goods were received without payment of Excise duty. The name of assessee was in the list of TMT manufacturers. The Assessing Officer also took note of the fact that several TMT bars manufacturing concerns had filed petition before the Settlement Commission of Customs and Central Excise for grant of immunity from interest, penalty and prosecution, after payment of Excise duty on the clandestine clearance of goods and the Settlement Commission had admitted the petition after levying token penalty. The Assessing Officer made detailed study of various reports about the consumption of electricity units required for production of TMT bars and arrived at 188 electricity units required to be consumed for manufacturing one Metric Ton TMT bars. The Assessing Officer rejected the book results under section 145(3) of the Act and worked out the addition of Rs.1,39,05,608/- on account of profit on suppressed sale.
4ITA No.2019/PUN/2014
Shri Anand Omprakash Pahade
6. The CIT(A) upheld the order of Assessing Officer in arriving at the suppressed production / sale of TMT bars on the basis of electricity unit consumption. In respect of quantifying the undisclosed income, the CIT(A) relied on the ratio laid down by the Pune Bench of Tribunal in the case of Shree Om Rolling Mills Pvt. Ltd. (2011) 137 TTJ Pune 627 and held that gross profit on suppressed production has to be estimated @ 4%. The CIT(A) also deleted the addition made on account of working capital required for purchase of raw material.
7. The Revenue is in appeal against the order of CIT(A).
8. The appeal of Revenue was fixed for hearing on 24.05.2016, 01.08.2016 but none appeared on behalf of the assessee on either of the dates. Thereafter, it was fixed for hearing on 17.10.2016, when a request was made and the matter was adjourned to 09.01.2017, on which date, the learned Departmental Representative for the Revenue sought adjournment. However, none was present on behalf of the assessee and the notice was issued to the assessee. On 29.03.2017, the Bench did not function and the matter was adjourned to 27.06.2017, for which a notice of hearing was issued. However, none appeared on behalf of the assessee on 27.06.2017 nor any application was filed for adjournment. Since the issue raised in the present appeal is squarely covered by the orders of Tribunal in assessee's own case also, we proceed to decide the present appeal after hearing the learned Departmental Representative for the Revenue.
5ITA No.2019/PUN/2014
Shri Anand Omprakash Pahade
9. We find that similar issue of estimation of profit on the alleged suppression of production on clandestine removal of goods arose before the Tribunal in assessee's own case in assessment year 2010-11 in ITA No.1887/PN/2014, wherein the Tribunal vide order 18.10.2016, held as under:-
"6. On perusal of record, we find that 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 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.
7. 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 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 6 ITA No.2019/PUN/2014 Shri Anand Omprakash Pahade 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."
8. 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 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 7 ITA No.2019/PUN/2014 Shri Anand Omprakash Pahade authorities, before the Assessing Officer in order to compute the additional income in the hands of assessee in the respective years."
9. The issue arising before us identical to the issue before the Tribunal in 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 has been detected and admitted by the assessee. Further, the assessee has 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 on account of alleged suppression of production. Accordingly, ground of appeal raised by the assessee against rejection of books of account and confirming the addition made on account of suppression of production by applying GP rate of 4% on the alleged production of sale are allowed. In view thereof, the appeal of assessee is allowed."
10. The Tribunal in assessee's own case in ITA No.397/PN/2016, relating to assessment year 2011-12, vide order dated 29.07.2016 had deleted the similar addition on account of suppressed production. Further, the Tribunal in assessee's own case relating to assessment year 2009-10 in ITA Nos.1558/PN/2012 and 1629/PN/2012 with lead order in ITA No.1292/PN/2012, vide order dated 15.07.2015 had also deleted the similar addition on account of suppressed production and working capital required for purchase of raw material.
11. In the facts of the present case, the CIT(A) has estimated the addition in the hands of assessee by applying the GP rate of 4% on the goods which have been clandestinely removed. The Revenue is in appeal against the order of CIT(A). No appeal filed by the assessee has been brought to our notice. Consequently, following our decision in earlier years, we uphold the order of 8 ITA No.2019/PUN/2014 Shri Anand Omprakash Pahade CIT(A) and dismiss all the grounds of appeal raised by the Revenue in this regard.
12. In the result, the appeal of Revenue is dismissed.
Order pronounced on this 30th day of June, 2017.
Sd/- Sd/-
(ANIL CHATURVEDI) (SUSHMA CHOWLA)
ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER
ऩुणे / Pune; ददनाांक Dated : 30th June, 2017.
GCVSR
आदे श की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to :
1. अऩीऱाथी / The Appellant;
2. प्रत्यथी / The Respondent;
3. आयकर आयक् ु त(अऩीऱ) / The CIT(A), Aurangabad;
4. आयकर आयक् ु त / The CIT, Aurangabad;
5. ववबागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩण ु े "फी" / DR 'B', ITAT, Pune;
6. गार्ड पाईऱ / Guard file.
आदे शािुसार/ BY ORDER, सत्यावऩत प्रतत //True Copy// सहायक ऩांजीकार / Assistant Registrar, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune