TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 1064
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....four years from the end of the relvant assessment year merely on presumption basis, without there being any material to establish that income has escaped assessment on account of assessee's failure to disclose truly and fully all material facts necessary for the assessment. 2. The learned CIT(A) failed to appreciate that the notice u/s.148 is issued merely on information received from Central Excise and Customs Department on 29.03.2010, however the Assessing Officer has failed to apply its own mind nor has done any independent investigation or verification so as to arrive at his own reason to believe that any income has escaped assessment. II. Disallowance u/s.40A(3) of Rs. 19,50,580/- 3. The learned CIT(A) erred in upholding the disallowance of payments made to the transporters u/s.40A(3) without appreciating that the said provisions are not applicable as payments are below the ceiling limits, as per the Rule 6DD as prevailing during the relevant year. 4. The learned CIT(A) erred in disallowing payments made to the transporters in cash in excess of Rs. 20,000/- u/s.40A(3) of the Act, without appreciating that where more than one payment is made to party on the same day for....
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.... duty payable thereon was worked out as per the table below:- Year Difference in production (MT) Rate per MT Value under reported production Base Excise Duty 2003-04 7510.508 Variable 100441824 14596091 2004-05 6957.137 Variable 123957666 13980756 2005-06 4519.728 15836 71574407 11451905 2006-07 1566.271 17735 27777815 4444450 2007-08 699.625 16459 11515575 1842492 2008-09 2616.279 26566 69504066 9347103 Thus the Central Excise and customs Department, on the basis of evidences gathered during the proceedings for levy of central excise and various factors served a show cause cum demand notice bearing No.62/CEX/2008 dated 05.05.2008 for the financial years 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09. Subsequently SCN cum Demand Notice No.70/CEX/Commr/2009 dated 20.05.2009 for the financial year 2008-09 was served on the assessee. In these demand notices, the fact of unrecorded production and surreptitious removal of goods without payment of duty was established as brought out in the table above." 4. Thereafter, the notices u/s.143(2) and 142(1) of the Act were issued and served upon the assessee and after the reply of the assessee an ad....
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.... in aggregate to a single party in a single day could not be declined prior to the A.Y.2009-10. It is not in dispute that the present case is in connection with the A.Y.2005-06, therefore, undoubtedly, the provision of aggregate payment to a single party in a single day would not applied in the present assessment year of the assessee i.e.2005-06. In support of the claim, the assessee placed reliance upon the decision of the Hon'ble High Court of Karnataka in case titled as A.N.Swarna Prasad Vs/ Additional Commissioner of Income Tax Range - 2 [2015] 230 taxman 536/56 taxman.com 138 and decision of ITAT, Hyderabad 'A' Bench in case titled as Sonali Castings (P.) Ltd. Vs. Deputy Commissioner of Income tax [2017] 88 taxmann.com 869. Both the above mentioned authority speaks that the CBDT Circular No.5 of 2010 dated 03.06.2010 is not applicable retrospectively, however, the same would take effect prospectively w.e.f. A.Y.2009-10. Taking into above mentioned facts and circumstances, we are of the view that the addition raised by the Assessing Officer and confirmed by the CIT(A) on account aggregate payment to a single party in a single day is not liable to be sustainable in the eyes of l....
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....er of Central Excise, Aurangabad has been cancelled by the CESTAT, Mumbai, by majority of opinion and hence the foundation of assessment is lost, is a perverse finding of fact and being contrary to the evidence available on records. 3. The Ld. CIT(A) has failed to properly appreciate the fact that the only issue before the Hon'ble Third Member of CESTAT was, "Whether in the absence of any other evidence of suppression of production, higher consumption of electricity alone can form the basis for determining the suppression of production? In the circumstance the said decision was squarely distinguishable on facts. 9. The brief facts of the case has already been discussed while deciding the appeal of the assessee in ITA No.2061/Mum/2016, therefore, there is no need to repeat the same. ISSUE NO.1 TO 3:- 10. Under this issue the revenue has challenged the deletion of the addition in sum of Rs. 12,39,57,666/- as suppressed production. The facts leads to controversy is that an information was received from Commissioner of Central Excise and Customs Aurangabad on 29.03.2010 that the assessee indulged in suppression of production and clandestine removal of finished products without pay....
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.... finding that the assessee is indulged in suppression of its production and clandestine removal of stock. As mentioned in his order at page 4 para 6, a copy of the technical report of IIT, Kanpur was attached with the Show Cause Notice and was thus provided to the assessee. In view of the above, as also the detailed comparative analysis of data prepared from the assessee's books of accounts, peer analysis and details furnished, it is apparent that, the rate of units of electricity per metric tonne adopted by the Hon'ble Commissioner of Central Excise, Aurangabad are very much reasonable, fair and justified. I, therefore, conclude that the rates for calculation of suppressed production in assessee's case adopted by Commissioner of Central Excise, Aurangabad are absolutely reasonable. The same is adopted accordingly for the purpose of calculation of unaccounted production of finished goods. On the lines of the above discussions, pattern of input, output, electricity consumption for per metric tonne of production, usage of raw material, comparison of assessee's production results with those of its peers and conclusions derived therefrom, I am of the conclusion and firm belief that t....