TaxTMI 
TaxTMI 
2015 (7) TMI 1265
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....eased to dismiss the appeals of the department in ITA Nos.435 & 436/PN/2012 vide order dt.16/01/2015 for the reasons as fully set out in the impugned order. With due respect to the Hon. Members, the Respondent Revenue most respectfully submits that the said order passed by the Hon. Bench suffers from following serious mistakes of facts and law which are apparent from the records, and have caused serious prejudice and injustice to the Respondent Revenue: Erroneous assumption of material facts The Respondent revenue submits that its special counsel Mr. Sunil Ganoo, upon conclusion of the hearing of the matters, with the permission of the Hon. Bench has filed Notes of arguments on 05/11/2014 and the Hon. Members have taken note of the same vide Para No.13 on Page No.24 of the impugned order. During the course of hearing, the Respondent Revenue filed on 27 /10/2014 the copies of decisions on which the Respondent Revenue wanted to place reliance and also filed copies of certain decisions as per the directions of the Hon. Bench. On Page No.1 of Notes of arguments, the Respondent Revenue has framed the following Issues: Issue No.1 Whet....
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....dmission of suppressed production. The said admission of suppression of sales and unaccounted purchases was never retracted by the appellant assessee. This fact is also admitted by the assessee company in Para No.1 of Statement of Facts filed along with Form No.35 filed before the learned C.I.T.[A] In view of the aforesaid uncontroverted facts, there was evidence in possession of the learned Assessing Officer about the removal of material in clandestine manner by the appellant assessee amounting to suppressions of sales. On this factual backdrop, it was argued by the Respondent revenue that it did not lie in the mouth of the appellant assessee that there was not an iota of evidence in possession of the Respondent department evidencing suppression of sales on the part of the appellant assessee. The assessee company approached the Hon. Customs & Central Excise Settlement Commission Additional Bench Mumbai for waiver of penalty and immunity from prosecution for evading the excise duty on removal and sale of goods in clandestine manner as was detected by the Central Excise Department. The Hon. Settlement Commission vide first Para on Page No.7 of its....
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....that reliance placed by the Revenue on the evidence in earlier cases which are already settled, is totally misplaced, when these findings of commissioner are not even challenged by revenue. Thus it is crystal clear that the Hon. Third Member has not considered the evidence about the clandestine removal of material and the duty levied on the same which issue was settled by the Hon. Settlement Commission. From the above observation it is crystal clear that the Hon. Third Member had proceeded only on the hypothetical evidence of electricity consumption. In the circumstances aforesaid, following the decision in the case of R.A. Castings the alleged suppressed sales estimated solely on electricity consumption was deleted. In the present appeals both the lower authorities have considered the confessional admissions of the assessee company before the learned Assessing Officer as well as the Central Excise Authorities and also the fact that the assessee company has offered income on alleged suppressed sales and alleged unaccounted purchases. The confessional statements of the appellant assessee have not been withdrawn and are still in force. In view of the afores....
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.... 593 [SC] It is respectfully submitted that the Hon. Supreme Court in the case of A.C.I.T. v/s Surashtra Kutch Stock Exchange Ltd reported in 305 I.T.R. Page 227 has held that failure to consider the decision of the Supreme Court or the jurisdictional High Court constitutes mistake of law apparent from records and has to be rectified by the ITAT by invoking powers u/s 254[2] of the I.T. Act, 1961. Erroneous interpretation of e decision of the Hon. Supreme Court in the case of R.A. Castings The Respondent Revenue vide Page No.9 of its Notes of arguments filed on 05/11/2014 has framed an issue as under: Whether the ratio of the decision of Hon. CESTAT, Principal Bench New Delhi in the case of R.A.Castings Pvt Ltd. reported in 2009[237] E.L.T.674 [Tri-Del] as affirmed by the Hon. Allahabad High Court against which SLP of the department stands dismissed is applicable to the facts of the present case? [Copies enclosed in Paper Book No.3 filed by the assessee company at Page Nos. 47 to 66] The Respondent assessee vide Page Nos.9 to 12 of Notes of arguments has explained with cogent well settled legal propositions by various Supreme Court and H....
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....mption of electricity. But the appellant assessee did not offer any explanation. In fact for subsequent years when the assessee realized that the department was on right track of detecting the suppression the assessee became wise and the consumption of electricity for subsequent years has gone down and has settled to 1026 units as per theoretical formula. This is quite evident from the various submissions made by the appellant assessee. Please refer to Page Nos.207 to 211 of Paper Book No.1 submitted by the appellant assessee. In the circumstances to say that the Respondent Revenue has not conducted any investigation is incorrect. In the circumstances the Hon. Bench by misconstruing the facts has drawn erroneous conclusions which constitute mistake of fact apparent from records and hence the same needs to be corrected. About other various legal issues which the Hon. Bench has refrained from dealing due to erroneous assumption of facts as stated hereinabove In view of the erroneous assumption of facts as stated hereinabove the Hon. Bench has refrained from various legal issues raised and as mentioned in Notes of arguments filed on 05/11/2014. On rectificat....
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....sion, hence there was mistake in the order of the Tribunal. Our attention was drawn to the findings of the Tribunal in para 21 at page 41 and para 22, 23, 24 at pages 42 to 45 of the Tribunal's order and it was vehemently stressed by the Ld. Special AR that the addition in the hands of the assessee was not only based on erratic consumption of electricity but it was one of the mode for calculating the additional income in the hands of the assessee. The Ld. Special AR further referred to the decision of the Tribunal in assessee's own case in earlier years and argued that in view of the said order of the Tribunal, addition in the hands of the assessee should be made by adopting the alleged consumption and interpolating the same for 300 days. The Ld. Special AR pointed out that by not making the addition of interpolation of 300 days, the order of the Tribunal suffers from infirmity and the same should be rectified and addition in the hands of the assessee should be sustained on this account. The Ld. Special AR pointed out that though the Tribunal referred to his argument but lost sight of the same, while deciding the appeal. It was again stressed by him that the Tribunal while deciding....
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....emoval of goods was detected and the assessee offered the income on such clandestine removal. The Ld. Special AR further stated that even though Assessing Officer had not made any addition on account of clandestine removal of goods, however keeping in mind the erratic consumption of electricity the Assessing Officer had made addition on account of erratic consumption of electricity. It was vehemently argued by the Ld. Special AR that the various legal issues which the Tribunal has refrained from dealing in should have dealt by it and in the absence of the same there is a mistake in the order of the Tribunal. 5. Coming to the next mistake committed by the Tribunal i.e. erroneous interpretation of the decision of the Hon'ble Supreme Court in R.A. Castings (supra), it was pointed out by the Ld. Special AR that in the facts before the Hon'ble Supreme Court in R.A. Castings (supra) there was no clandestine removal of goods. The Tribunal while deleting the addition had relied on the said decision which was not relevant. On the other hand, the Ld. Special AR had relied on three decisions which have not been relied upon by the Tribunal. 6. The next objection raised by the Ld. Special....
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....f the decisions by the Tribunal. He questioned how the Ld. Special AR can say that it is erroneous interpretation in the miscellaneous application. The Ld. Authorized Representative for the assessee placed reliance on series of decisions as per the case laws compilation and pointed out that in view of the ratio laid down by the said decisions, there was no merit in the miscellaneous application filed by the Department. It was further contended by him that the Tribunal had not decided on one issue but on multiple issues. It was further pointed out by him if the Ld. Special AR says that the Third Member decision of CESTAT Tribunal is not to be applied. He stressed that then no addition can be made in the hands of the assessee by relying on the order of the CCE. The Ld. Authorized Representative for the assessee pointed out that the Third Member decision of CESTAT Tribu nal had interpreted the provisions of the Excise Laws and even the decision in R.A. Castings (supra) was under the Excise Laws and once that decision has been relied upon by the Third Member, and the addition made in the hands of the assessee deleted under the Excise Laws, there is no merit in any of the submissions ma....
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....ade good in miscellaneous proceedings. It was pointed out by him that the Assessing Officer had not raised any issue on extrapolation on this account and even before the CIT(A) and the Tribunal, no such argument was raised by the either party. Our attention was drawn to the note filed by the Ld. Special AR on 05.11.2014 and it was pointed out that there was no argument on extrapolation and such an argument for the first time had been taken in the miscellaneous proceedings. It was further pointed by him, that in any case no addition on account of extrapolation was possible in the hands of the assessee because of the ratio laid down in following decisions : (i) Chhattisgarh Steel Casting (P) Ltd. vs. ACIT, 8 DTR (B ilaspur) 14; (ii) Anjaneya Brock Works vs. CIT, 74 TTJ 921; (iii) C.J. Shah & Co., 246 ITR 671; and, (iv) Anand Kumar Deepak Kumar, 294 ITR 497. 10. He also pointed out that reliance placed by the Ld. Special AR on series of decisions in this regard is misplaced. 11. With regard to the various judgements relied upon by the Ld. Special AR, it was pointed out by the Ld. Authorized Representative for the assessee that where the Tribun....
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...., 302 (P&H). Under section 254(2) of the Act, power is conferred with a view to rectify any mistake apparent from the record and such power does not contemplate re-hearing, which would have the effect of re-writing an order affecting the merits of the case. The Tribunal is conferred with the power to rectify a mistake and there is no power to review its order. The said ratio is laid down by the Hon'ble Delhi High Court in Ms. Deeksha Suri Vs. ITAT (1998) 232 ITR 395 (Delhi). Further, in the garb of application for rectification, the appeal cannot be re-argued, which is beyond the scope of section 254(2) of the Act. 14. The Hon'ble Supreme Court in ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC), relied upon by the Special learned Authorized Representative for the Revenue, held as under:- "A patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whe....
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....urashtra Kutch Stock Exchange Ltd. (supra) further held that non consideration of decision of jurisdictional High Court or of the Hon'ble Supreme Court could be said to be a mistake apparent from the record. 16. Similar proposition has been laid down by the Hon'ble Supreme Court in Honda Siel Power Products Ltd. Vs. CIT (2007) 295 ITR 466 (SC), wherein it was held as under:- "12. As stated above, in this case we are concerned with the application under section 254(2) of the 1961 Act. As stated above, the expression "rectification of mistake from the record" occurs in section 154. It also finds place in section 254(2). The purpose behind enactment of section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its Order dated 10 -9-2003 allowing the Rectification Application has given a finding that Samtel Color Ltd.'s case (supra) was cited before it by the assessee but through oversight it had missed out ....
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....is merely a power of amending its order. In the instant case, in the first order of the Tribunal dated 9-6-1975, there was no mistake which was apparent from the record at all. The Tribunal was required to decide whether the commission payment of Rs. 54,000 was deductible under section 37 after examining the circumstances, the Tribunal came to the conclusion that it was not so deductible. The Tribunal cannot, in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself. No such mistake was apparent from the record. In fact, this was doubtful, if this sort of an exercise could have been done by the Tribunal even if it had the power of review. The Tribunal had, patently, far exceeded its jurisdiction under section 254(2) in redeciding the entire dispute which was before it in this fashion, and the Tribunal had committed a gross and inexplicable error for reasons which could not be understood. The power of rectification under section 254(2) can be exercised only wher....
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....ht to the notice of Bench by the respondent Revenue. Further, reference was made to the confessional statement dated 12.01.2007 given by Shri Surendra S. Peety, Managing Director of the assessee company before the DGCEI about the removal and sale of around 275 MT of ingots clandestinely to Shree Om Rolling Mills, without payment of Excise duty and receipt of cash against the sales. The plea of the Revenue in this regard is that during the re-assessment proceeding, the assessee had offered income of Rs. 6,72,620/- and thus, the fact of suppression of sales was admitted by the assessee company before the Assessing Officer. In view of the admission of the assessee in the statement of facts and also in its submissions filed before the Assessing Officer, the Revenue pleaded that there was evidence in possession of the Assessing Officer about the removal of material in clandestine manner by the assessee amounting to suppression of sales. In other words, there was evidence in the possession of the respondent Department evidencing suppression of sales. Further, references were made to the order of the Settlement Commission in the case of the assessee. The grievance of the Revenue by way of....
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....ecord. In view thereof, where the Ld. Special AR has time and again pointed out that the Tribunal had not considered its arguments though he himself admits that the Tribunal had summarized his arguments in paras 11 to 11.1 at pages 16 to 18 of the order of Tribunal, we find no merit in the allegations made by the Ld. Special AR vis-à-vis non-consideration of material. The Ld. Special AR in the garb of the present Miscellaneous Application has re-argued his appeal by raising different pleas which as pointed out by the learned Authorized Representative for the assessee were not case of the Assessing Officer or the CIT(A) and no such contentions were raised even by the Department in the written Note filed on 05.11.2014. The present Miscellaneous Application merits to be dismissed on this account. 23. Now, we come to the issue No.1 raised by the Revenue in its Miscellaneous Application. The perusal of the order of Tribunal dated 16.01.2015 reflects that after considering the factual aspects of the case, the Tribunal referred to the submissions of the learned Authorized Representative for the assessee in para 10 to 10.4 and the same were summarized at pages 12 to 15 of the ord....
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....nsignments. As per the modus operandi adopted by the brokers they used to recover the said fake trading bills and challans after the goods reached their destination. As noted by the Assessing Officer those brokers/sub-brokers also admitted that the entire evidence was destroyed by them and they used to get the commission of Rs. 100/- per MT. The Assessing Officer has discussed the information gathered by the DGCEI, Zonal Unit, Mumbai in Para Nos. 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 & 2.7 of the assessment order. So far as action against the brokers and sub-brokers are concerned the Central Excise Authority issued show cause to the assessee as well as the other manufacturers who were involved in clearing the excisable goods without payment of duty. All the manufacturers of the Ingots/Billets and TMT Bars were based in Jalna and the assessee is one of them. As per the investigation done by the Central Excise Authorities, the assessee who is manufacturing of Ingots/Billets supplied 288.500 MT. to Shri Om Rolling Mills Pvt. Ltd. which is engaged in the manufacturing of TMT Bars. The Assessing Officer also referred to a statement of Shri Surendra S. Peety, Managing Director of the assessee rec....
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....ssessee and other companies, against which the assessee and other companies came forward before the Settlement Commission and paid the Excise duty. The Tribunal further noted that the investigation of DGCEI made against the brokers and sub-brokers was also before the learned CCE, Aurangabad. The Tribunal further observed that on the perusal of assessment order, it was clear that both the assessments were merely based on alleged suppression of production by estimating certain consumption of electricity. The Tribunal further held that since as the very basis of the assessment order i.e. the order of the CCE, Aurangabad has been set-aside and cancelled by the CESTAT, the assessment order passed by the Assessing Officer and confirmed by the CIT(A) approving the estimate alleged suppression of production / sales have no legal legs to stand. Para 19.4 of the order of Tribunal reads as under:- "19.4 The common order was passed by the CESTAT on 30 -07-2006 as per the majority opinion allowing the appeals filed by the assessee and other appellant companies. The copy of the majority order is placed at Page Nos. 5 and 6 of the P/B - VI. It is pertinent to note here that the Ld. Commi....
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....n / sales have no legal legs to stand. 26. The allegations of Revenue vide Miscellaneous Application that the Tribunal had overlooked the evidences i.e. the confessional admission by way of petition before the Settlement Commission and has only relied on the Third Member decision of CESTAT in the case of assessee, is thus, incorrect. 27. Now, coming to the second stand of the Revenue that the Third Member decision of CESTAT in the case of assessee had not considered the above said clinching evidence, since the same was not an issue / ground before it, is also incorrect. The Third Member of CESTAT vide page 13 of impugned order had reproduced para 19 of the order of CCE, Aurangabad, wherein he noted that there were other instances of Central Excise violations detected by other agencies where the assessee was found to be involved. The CCE, Aurangabad / CESTAT also referred to the assessee approaching Settlement Commission and admitting the evasion of offence of an identical nature. The relevant para of the Third Member of CESTAT at page 13 is reproduced by the Revenue in its Miscellaneous Application at top of page 4 and the allegation of the Revenue that the Third Member had n....
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.... by Ld. Spl AR of the Revenue which are in context of admission of the Director of the assessee in the course of investigation made by DGCEI more particularly under the Indian Evidence Act as those decisions are not relevant now though good for academic discussion. So far as maintaining of Form G-7 in respect of the electricity consumption, the said issue was also before the CESTAT while deciding the fate of order of the Ld. CCE, Aurangabad. Ld. AR vehemently argued to point out how the order of the CESTAT, Mumbai Bench, Mumbai is not correct. The CESTAT is a higher appellate forum under the Custom Act 1962 and Central Excise Act 1944 and we cannot sit as revisionary authority or make any observation whether that order is right or wrong." 29. Where the Tribunal after considering the factual aspects of the case and arguments of Authorized Representatives had adjudicated the issue taking into consideration both the aspects of investigation by DGCEI and the proceedings before the Settlement Commission and also the order passed by the CCE, Aurangabad, which has been set-aside by the Third Member of CESTAT and also no independent investigation being made by the Revenue and the entire....
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....ities and also the offer of income on alleged suppressed sale were considered by lower authorities and the Tribunal had not considered the decision about the law of admission of any assessee. In the first instance, the decisions referred to by the Revenue were under the Excise Act i.e. Pullangode Rubber Produce Co. Ltd. Vs. State of Kerala and another (1973) 91 ITR 18 (SC) and Basant Singh & Ors in Civil Appeals Nos.19 & 20 of 1963, order dated 02.08.1966 have been considered by the Third Member of CESTAT and in view thereof, it cannot be said that the Tribunal has not considered the ratios of said decisions, wherein it had relied on the decision of Third Member of CESTAT. Further, decision in MAK Data Pvt. Ltd. Vs. CIT (2013) 358 ITR 593 (SC) was on issue of levy of penalty under section 271(1)(c) of the Act and the Tribunal vide para 11.1 at page 18 of the Tribunal order had noted the reliance placed upon by the Ld. Special AR on the said decision. The Tribunal also in the said para notes the arguments of the Ld. Special AR that the proceedings before the Settlement Commission as well as the confession by the assessee were good pieces of evidence. 31. Once the arguments of the....
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....ession is for part of period the same can be extrapolated for rest of the year The same is considered in the middle of Page No.18 and finding is given in Para 19.4 at Page No.38 of the order Issue No.3 - Estimating suppressed production on the basis of electricity consumption The same is considered in Para 11.2 and given the finding in Para 23 at Page No.45 of the order Issue No.4 - Applicability of Ratio of decision of RA Casting The same is considered in Para 11.4 and 11.5 at Page No.20 and 21 and the same is discussed above in Issue No.3 Issue No.5 - Whether in view of the decision of Third Member CESTAT the addition of suppression of sales made by the AO and confirmed by the CIT(A) deserve to be deleted Considered in middle of Para 11.5 at Page No.21 wherein the finding is given after considering all the issues and decisions given by the Special Counsel starting from Para 13 and in the starting of Para 13 mentioned as under: "We have heard the rival submissions of the parties and perused the record. Ld. AR for the assessee filed argument synopsis and Ld. Special AR for the Revenue also has filed notes of his argument on 05-11- 2014 which are placed....
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....dmission for removal of goods without payment of excise. However in the case before the Hon. Bench there was an admission on account of suppressed sales and undisclosed income has been offered for taxation We need not argue this repeatedly as the admission was for small quantity before the Excise Authorities for which Settlement Petition was filed and allowed by paying the excise duty on also declared profit at the rate of 4% on the sale price of the quantity removed without payment of duty in the IT Return. Further, the AO has not recorded any statement nor made any enquiry in this regards Issue No.13 - Applicability of Chattisgarh Steel Casting Pvt. Ltd. V. ACIT - 8 DTR 14. The department argued that the Bench has accepted the argument of the assessee against the decision of Supreme Court in the case of H.M. Esufalli - 90 ITR 271 is not applicable in the instant case and in the subsequent para the department argues that the decision in the case of Chattisgarh Steel (supra) does not propound the correct well settled legal provisions I am afraid whether MA can be filed against or challenging the decisions taken by the Hon. Tribunal. Further the decision of H.M. Esufa....
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....unal reported in 137 TTJ 627 [Pune] and pointed out that the Tribunal has not considered the said fact before deleting the addition in the hands of the assessee and the order passed by the Tribunal suffers from mistake of facts and law. 36. The perusal of the assessment order and the order passed by the CIT(A) reflects that the admission of the assessee before the DGCEI and the consequent petition filed before the Settlement Commission was in the knowledge of both the authorities and also the said fact was in the knowledge of CCE, Aurangabad. However, the addition in the hands of the assessee was made on account of erratic consumption of electricity i.e. the final order passed by the CCE, Aurangabad. No other investigation was carried out by the Assessing Officer during the assessment proceedings or during remand proceedings of the CIT(A). The total addition was made in the hands of the assessee on account of erratic consumption of electricity which was the order passed by CCE, Aurangabad. The said order having been overturned by the Third Member of CESTAT, was considered by the Tribunal and the addition made in the hands of the assessee was deleted. One important fact to be not....
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....l AR for extrapolating the sales of year relying on the petition filed before the Settlement Commission. First of all, it was never the case of the Department during assessment or appellate proceedings and even no such argument was raised by the Ld. Special AR while arguing the appeal before the Tribunal. He has time and again relied on his written Note dated 05.11.2014, which was filed after the close of the hearing before the Tribunal and on the perusal of the said written submissions, it is apparent that no such plea of extrapolation of figures of suppressed sales on the basis of the ratio laid down in assessee's own case relating to assessment year 2006-07 was ever raised before the Tribunal. On the other hand, the Ld. Special AR had stated as under:- "Regarding applicability of various case laws relied upon by the assessee company A.C.I.T. v/s SRJ Petty Steels [P] Ltd reported in 137 T.T.J.[Pune] 627 A loud sound has been made by the assessee company that the aforesaid decision in its own case clinches the issues involved in the present appeals in its favour. It is respectfully submitted that it is only the wishful thinking of the assessee company. T....
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....o theseized material found during the course of search. The relevant I. T. returns for the said years were filed prior to the search in normal course disclosing the particulars of subject-matters were already on record. The returns have already been accepted and no assessment as such could be said to be pending on the date of initiation of search and abated in the light of the provisions of s.153A vii. It is respectfully submitted that the Hon. Bench vide Para Nos.29 to 30 of the decision has lucidly explained the provisions of assessments to be made on search cases under Section 153A of the L T. Act 1961 and the same may please be referred. viii. It is further submitted that the view expressed by the Hon. Bench about assessments under Section 153A and the scope of such assessments has been explained in similar fashion by the Hon. Bombay High Court Nagpur Bench in the case of C.LT. v/s Murli Agr o Products Ltd in Income Tax Appeal No. 36 of 2009 decided on 29/ 10/2010. This case was referred by the undersigned during his arguments and the same has been relied upon by the Hon. LT.A.T. Pune Benches Pune in various cases represented by the undersigned. Hence copy of ....
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....ive for the assessee on the decision of Hon'ble Bombay High Court in assessee's own case relating to assessment year 2006-07, the Ld. Special AR stressed that the ratio of the said decision cannot be applied. 40. Now, before us while arguing the Miscellaneous Application, the Ld. Special AR has vehemently stressed that the Tribunal has erred in not extrapolating the sales for the entire year based on the evidence i.e. the petition before the Settlement Commission and hence, there is an error in assumption of facts and mistake of law in this regard. We find no merit in the said arguments raised by the Ld. Special AR before us during the course of hearing of Miscellaneous Application and the same is beyond the scope of consideration under the purview of section 254(2) of the Act. 41. As referred to by us in the paras hereinabove, such a plea could have been raised by the Department during the appellate proceedings before the Tribunal for the first time. However, in the absence of such plea being raised during the course of hearing of the main appeal, raising of such an argument before the Tribunal vide Miscellaneous Application is sheer waste of judicial time and process of law....
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....d under regular assessment under section 143(3) of the Act. The Hon'ble Bombay High Court held that such regular assessment stands on a different footing in contrast to the exercise undertaken by the Assessing Officer under Chapter XIV-B, where the Assessing Officer had to assess only the undisclosed income. However, the Hon'ble Bombay High Court further held that under Chapter XIV-B, the Assessing Officer cannot estimate the undisclosed income on an arbitrary basis. We find no merit in the plea raised by the Ld. Special AR in this regard as the facts of the said case are different from the facts of the present case. 43. Even on merits, the Revenue has no case against the assessee. The reliance placed upon by the Ld. Special AR on the ratio laid down in assessee's own case relating to assessment year 2006-07 is misplaced as the addition in the hands of the assessee in that year was made on account of search and seizure operations carried out by the Income-tax Department, wherein sales outside books were found for few days. However, no independent investigation / inquiry by the Income-tax Department has been made before completing assessment proceedings against the assessee. Anot....