TaxTMI 
TaxTMI 
2015 (7) TMI 1265
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....35 & 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 Whether there was any evidence / material [other than erratic consumption of electricity units] in poss....
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....pellant 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 order [Please Refer Page No.218 of Paper Book No.1 filed by the assessee company] has observed that However, the Bench cannot ignore the fact that there was a c....
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....evenue. 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 aforesaid facts, the conclusion drawn by the Hon. Bench vide Para No.21 on Page 41 of the impugned order that Moreover, as observed above the adjudication Order passed by the CCE, Aurangabad has been cancelled....
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....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 High Court decisions. In order to avoid repetition, it is humbly requested that same may please be treated as part of this Petition and the Respondent Revenue may please be permitted to refer the same during the hearing of the present Petition. The Respondent Revenue most respectfully s....
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....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 rectification of aforesaid errors, as consequence thereof it is humbly requested that all the relevant legal issues raised on earlier occasion which were not adjudicated by the Hon. Bench shall stand revived and therefore the same may please be adjudicated. About maintainability of the present Petition The Respondent Revenue most r....
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....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 the issue had not considered this aspect. The Ld. Special AR placed reliance on the ratio laid down by the Hon'ble Allahabad High Court in ITO vs. ITAT, Delhi And Another reported in (1965) 58 ITR 634 (All.). Further, reliance was placed on the ratio laid down by the Hon'ble Madhya Pradesh High Court in CIT vs. Mithalal Ahsok Kumar reported in (1986) 158....
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....sumption 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 AR was against the wrong interpretation of Third Member decision in the case of the assessee before the CESTAT. The contention of the Ld. Special AR in this regard was that the Tribunal had failed to appreciate the judgement properly and consequently there was a mistake apparent from the record. It was the contention of the Ld. Special AR that what was the basis....
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.... 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 made by the Ld. Special AR in this regard. 8. Coming to the merits of the case, the Ld. Authorized Representative for the assessee pointed out that before the Assessing Officer in the income-tax proceedings, there was no admission, no statement before Assessing Officer, and no investigation by Assessing Officer, even though there was a settlement petition filed befo....
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.... 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 Tribunal has relied on the sections/judgements under the Income-tax Act, there was no reason to rely on judgement under the other Acts, when judgements under Income-tax Act were available to decide the issue. 12. In rejoinder, the Ld. Special AR pointed out that the Ld. Authorized Representative for the assessee refers to no further investigation by my Assessing Officer but where the Assessing Officer was....
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....elhi 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 whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on r....
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.... 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 the said judgment while dismissing the appeal filed by the assessee on the question of admissibility / allowability of the claim of the assessee for enhanced depreciation under section 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. 13. "Rule of precedent....
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....ook 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 where the mistake is apparent from the record, and not a mistake which is required to be established by arguments and a long-drawn process of reasoning on points on which there might conceivably be two opinions. Failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record although it may have been an error of judgment. In the instant case, the alleged failure at least on one count....
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...., 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 Miscellaneous Application before us was that the Tribunal had not analyzed the above said evidences and had mistakenly overlooked the same by placing reliance on the Third Member decision of CESTAT in the case of assessee, which had not considered the above clinching evidence as the same was not an issue / ground before it. Reference was made to the decision of Third Member of CESTAT in the Miscellaneous Application a nd it is alleged by the Revenue that the Thi....
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....ppeal 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 order. Further, the arguments of Ld. Special AR were summarized in paras 11 to 11.5 on pages 16 to 22 of the order. After hearing the rejoinder of th e assessee, the Tribunal vide para 13 notes that the learned Authorized Representative for the assessee had filed arguments / synopsis and the Ld. Special AR had also filed Notes of his arguments on 05.11.2014, which are placed on record. The Tribunal the reafter, considered all the precedents and decisions relied on by bo....
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....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 recorded on 12-01- 2007, by the DGCEI who allegedly admitted that the goods supplied to Shri Om Rolling Mills Pvt. Ltd. i.e. Ingots/ Billets, were removed clandestinely without payment of excise duty and the said material was to extent of 275 MTs. The sale price was received in cash from Shri Om Rolling Mills Pvt. Ltd. and hence, there was no accounting. The assessee admitted the said charge of the Central Excise Authorities i.e. DGCEI and approached the Settlement Commission ....
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....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. Commissioner has also considered the investigation made by the DGCEI against some brokers and in consequence the show cause notices (SCN) were issued to the assessee and other companies and the assessee and other companies came forward before the Settlement Commission and paid the excise duty. Hence, the investigation of the DGCEI made against the brokers and sub-brokers referred by the Assessing Officer was also before the Ld. Commissioner, Aurangabad. On perusal of the assessment order....
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....linching 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 not considered the evidence about clandestine removal of materials and the duty levied on which, was settled by the Settlement Commission, is incorrect. 28. The Tribunal in assessee's case has further vide para 21 given a finding that no independent investigation was made by the Revenue, but the entire assessments were framed on the basis of information received from Central Excise department as well as adjudication order passed by the CCE, Aurangabad. In view of the order of CCE, Auranga....
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.... 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 assessments being framed on the basis of information received from the Central Excise Department, the conclusion drawn by the Tribunal in this regard cannot be said to be an outcome of erroneous assumption of facts resulting into mistake of law. Once the Tribunal has given a decision after considering all the aspects of the case i.e. both the factual and legal, the same cannot be re-argued by the Revenue, as the same would amount to review of order, which is not permissible under the provision....
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....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 Revenue have been considered by the Tribunal and the reliance has also been considered by the CESTAT, there is no merit in the Miscellaneous Application moved by the Revenue in this regard that the failure to consider the decision of Hon'ble Supreme Court or the jurisdictional High Court constitute mistake of law apparent from the record. The Hon'ble Supreme Court in ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (supra) had laid down the proposition that the failure to consider the decision of Hon....
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....e 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 on record. We have also considered all the precedents and decisions relied on by both the parties". Further the finding is given in Para 19.4 at Page No.38 of the order Issue No.6 - Whether CIT(A) justified in calculating the profit at the rate of 4% on suppressed sale The same is considered in Para 31 Issue No.7 - Contention that for the years under consideration the ld. AO has dropped penalty proceedings u/s 271(1)(c) of IT Act, 1961 which shows that there was no suppression as alleged The Hon. Tribunal has not taken t....
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....t 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. Esufalli is already considered by the Hon. Bench in Para 11.1 at Page No.18 34. The contention of the Ld. special AR before us was that the Tribunal had not considered the above said issues and hence, there are mistakes of law apparent from the record in this regard. The perusal of the order of Tribunal and as referred in tabulated details in the paras hereinabove reflect that each and every issue raised by the Ld. Special AR in his written Note dated 05.11.2014 has been considered by the Tribunal and the decision of the Tribunal cannot be disturbed / questioned....
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.... 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 noted in this whole exercise of assessment and appellate proceedings is that neither in the order of the Assessing Officer nor the CIT(A), there is an even whisper of extrapolation of sales for the entire year by adopting the clandestine removal of goods, which was admitted by way of settlement before the Settlement Commission. 37. The first aspect of the issue is where an aspect of addition i.e. extrapolation of sales in the hands of the assessee, which has not been considered / adjudicated by any of the authorities, can the said issue be raised before the Tribunal. The answ....
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....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. The said case is clearly distinguishable on facts and the distinguishing main points can be summarized as under: i. The said case pertains to the assessments framed u/s 153A of the I. T. Act 1961, in pursuance of search and seizure actions carried out on 17/03/2006 in the residential and business premises of the SRJ group. ii. No iota of evidence was found in the premises of the assessee company showing suppression of sales. iii. Certain loose papers evidencing unaccounted sale of MS rounds and MS ingots/billets were found at the residence of Peety family. The details of papers are given on Page Nos. 5 & 6 of the decision. The total suppress....
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....n. 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 the same was not furnished and the learned A.R. also did not request for copy of the said decision. In any case the said decision is available in public domain. ix. The present appeals pertain to the reassessment proceedings which are different than the search assessments under Section 153A of the Act. x. Thus the facts of the aforesaid cases were different and the contention of the learned A.R. that the issues involved in the present appeals are squarely covered by the said decision is erroneous and being ill founded the same may please be rejected. Tax Appeal No. 30 of2011 The C.I.T. v /s SRJ Peety Steels Pvt Ltd and other connected appeals decided by the Hon. Bombay High Court Aurangabad These appeals were file....
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....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. This is a fit case for levy of costs against the Department for raising frivolous and vexatious arguments and pleas about estimation of income, which were never raised during the course of hearing of the appeal before the Tribunal. However, no cost is being levied against the Revenue at this juncture. 42. Before closing the issue, in the interest of justice, we would like to adjudicate the issue of extrapolation of suppressed sales on account of settlement petition made by the assessee. Admittedly, during the course of search and seizure operation on certain brokers, evidences of clandestine removal of material without payment of Excise duty, was found against the assessee. However, no search and seizure operation was carried out against the assessee, but the assess....
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....ase 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. Another aspect of the issue is that the petition before the Settlement Commission has been made by the assessee in assessment year 2007-08 only and no such petition for clandestine removal of material without payment of Excise duty has been made for assessment year 2008-09. The assessee had offered the additional income on account of such clandestine removal of goods before the Assessing Officer for assessment year 2007-08 and the same was the reason for reopening the assessment under section 148 of the Act. Once a particular fact was available with the Assessing Officer, which was taken note of and considered by him during the assessment proceedings, but the addition having been made on only on the issue of erratic consumption of electricity, which is the basis of order passe....