2013 (10) TMI 311

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....f this an amount of Rs. 17,93,96,057/- was the amount of which the department had found that the sale of 34859 tyres were concealed by the petitioner which fact was revealed because of an information received by the Income Tax Department from the Central Excise Department. It is submitted that inclusion of the entire price of the tyres by way of profit is not permissible under the law. For this he has placed reliance to a judgment of the Division Bench of this Court in Commissioner of Income Tax v. Balchand Ajit Kumar [263 ITR 610 = 1997 (94) E.L.T. 477 (S.C.)], (b) That the petitioner industry is a sick industry and the matter is pending before the Appellate Authority for Industrial and, Financial Reconstruction (hereinafter referred as AA....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ate if para 4 of the order as referred by Shri Lal is reproduced, which reads thus :- "4. It is seen that a search operation at the premises of the assessee was conducted on 30-11-2006 by Central Excise Department. As per information received from the Central Excise Department, it is seen that the assessee company has under-reported the production in the factory by atleast 34859, tyres valued at Rs. 17,93,96,057/-. A show cause notice was issued on 20-11-2009 to explain the reported under-production of Rs. 17,93,96,057/-. No satisfactory reply in this regard was furnished by the assessee. Further, details of opening and closing stock was called vide questionnaire u/s 142(1) dated 6-5-2009. The Assessee in its reply dated 7-12-2009 s....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... before AAIFR is concerned, the position is not disputed before us. Once the matter is pending before the AAIFR, the law laid down by the Apex Court in Tata Davy (supra) will be applicable. The Apex Court in Tata Davy , considering the question held thus :- "12. We hold, in the premises, that the respondents cannot recover the aforementioned arrears of sales tax from the appellants without. first seeking the consent of the said Board in this behalf." 6. In view of the settled law, in Tata Davy, there is no iota of doubt that the respondents were not entitled to affect the recovery proceedings until and unless they could have sought permission of AAIFR in this regard. 7. So far as the third contention of the petitioner tha....