2015 (8) TMI 1519 - AT - Income Tax

Tribunal rules in favor of assessee, dismisses Revenue's appeals on suppressed production and investments

The Tribunal allowed the assessee's appeals on merits, deleting additions related to suppressed production and investments. The Revenue's appeals were ... Suppressed production - unaccounted sales - erratic consumption of electricity - goods clandestinely removed - GP rate determination - HELD THAT:- We find identical issue had come up before the Tribunal in the case of Bhagyalaxmi Steel Alloys Pvt. Ltd. Vs. Addl.CIT [2015 (11) TMI 14 - ITAT PUNE] where both of us are parties. We find the Tribunal considering the arguments advanced by both the sides deleted the addition made on account of erratic consumption of electricity and the alleged investment in the purchase for effecting such unaccounted sales. The appeal filed by the Revenue challenging the application of GP rate and allowance of expenses are also dismissed by the Tribunal. Thus we hold that no addition can be made on account of erratic consumption of electricity and there is no alleged investment in the purchase for effecting such sales which goods have been clandestinely removed. In view of our deleting the addition in the hands of the assessee, the grounds of appeal raised by the Revenue, i.e. against application of GP rate and allowance of expenses are also dismissed. However, the AO is directed to include additional income in the hands of the assessee on account of clandestine removal of goods without payment of excise duty as admitted by the assessee before the DGCEI, Aurangabad. - Decided against revenue. Issues Involved:1. Reopening of assessment under section 147.2. Non-supply of reasons for reopening the assessment under section 147.3. Non-issue of notice under section 143(2) after reopening the assessment under section 147.4. Addition on account of alleged suppression of sales based on electricity consumption.5. Rejection of books of accounts under section 145.6. Addition on account of initial undisclosed investment for undisclosed turnover.7. Application of Gross Profit (GP) rate on alleged suppression of sales.8. Addition on account of investment in purchases related to suppression of sales.Detailed Analysis:1. Reopening of Assessment under Section 147:The assessee challenged the reopening of the assessment under section 147, arguing that the reasons for reopening were not supplied. However, this ground was not pressed by the assessee during the proceedings, and thus, it was dismissed as not pressed.2. Non-supply of Reasons for Reopening the Assessment under Section 147:The assessee contended that the reasons for reopening were not supplied, neither during the reopening nor at the appellate stage. This issue was also not pressed by the assessee and thus dismissed.3. Non-issue of Notice under Section 143(2) after Reopening the Assessment under Section 147:The assessee argued that the assessment was void as no notice under section 143(2) was issued after reopening under section 147. However, since the appeal was allowed on merits, this ground was not adjudicated and was considered academic.4. Addition on Account of Alleged Suppression of Sales Based on Electricity Consumption:The AO made additions based on the information from the Central Excise authorities, which suggested that the assessee suppressed production and sales based on electricity consumption data. The CIT(A) upheld the AO's decision, relying on the electricity consumption per metric ton as a basis for estimating suppressed production. However, the Tribunal found that similar issues were previously adjudicated in the case of M/s. SRJ Peety Steels Pvt. Ltd., where it was held that no addition could be made merely on the basis of electricity consumption data without concrete evidence of suppressed production. Thus, the Tribunal deleted the additions made on this basis.5. Rejection of Books of Accounts under Section 145:The AO rejected the books of accounts under section 145(3), claiming they did not reflect the true state of affairs due to alleged suppression of production. The CIT(A) upheld this rejection. However, the Tribunal found that the rejection was based solely on the electricity consumption data, which was not a sufficient basis for rejecting the books of accounts. Hence, the Tribunal allowed the assessee's appeal on this ground.6. Addition on Account of Initial Undisclosed Investment for Undisclosed Turnover:The AO made an addition for initial undisclosed investment under section 69C, which was upheld by the CIT(A). The Tribunal, however, found that since the main addition on account of suppressed production was deleted, the related addition for initial undisclosed investment also could not be sustained and was thus deleted.7. Application of Gross Profit (GP) Rate on Alleged Suppression of Sales:The CIT(A) had quantified the suppressed production by applying a GP rate of 4% on the alleged suppressed sales. The Tribunal, following its decision in the case of M/s. SRJ Peety Steels Pvt. Ltd., found no merit in the GP rate application since the main addition on account of suppressed production was deleted. Therefore, the related application of GP rate was also dismissed.8. Addition on Account of Investment in Purchases Related to Suppression of Sales:The AO made an addition for investment in purchases related to the alleged suppressed sales. The CIT(A) upheld this addition. However, the Tribunal, following its decision in similar cases, found that without concrete evidence of suppressed production and sales, no addition could be made for investment in purchases. Thus, this addition was also deleted.Conclusion:The Tribunal deleted the additions made on account of suppressed production and related investments, following the precedent set in the case of M/s. SRJ Peety Steels Pvt. Ltd. The appeals of the assessee were allowed on merits, and the appeals of the Revenue were dismissed. The issue of non-issue of notice under section 143(2) was not adjudicated as it became academic.