2019 (4) TMI 55

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.... The revenue has raised following grounds of appeal: 1. "Whether on the facts and circumstances of the case, the learned CIT(A) has erred in restricting the addition made on account of estimated GP. 2. Whether on the facts and circumstances of the case, the learned CIT(A) has erred in deleting the addition of Rs. 7,97,54, 165/ - and Rs. 3,41,55,992/~ made on account of alleged excise duty and VAT Tax collected but not paid in Government account. 3. Whether on the facts and circumstances of the case, the learned CIT(A) has erred in ignoring the facts of the case that the addition made on account of alleged excise duty and VAT Tax were based on incriminating invoices seized during the excise search and the same wa....

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....on account of gross profit at Rs. 8 crores, addition on account of Central Excise at Rs. 7,97,54,165/-, addition on account of VAT Rs. 3,41,55,992/- and undisclosed investment of Rs. 5 crores. 3.Aggrieved by this the assessee preferred an appeal before the ld. CIT(A) who after considering the submissions partly allowed the appeal. Ld. CIT(A) thereby, upheld rejection of books of accounts however Ld. CIT(A) applied the net profit @ 2.3% on the total turnover including turnover determined by the Excise Authority. Further, Ld. CIT(A) deleted the addition made in respect of Excise Duty and VAT alleged to have been collected by the assessee. The Ld. CIT(A) deleted the addition of Rs. 5,00,00,000/- made on account of investment on the alleged ....

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....ng the submissions and relying upon earlier order of the Tribunal applied net profit @ 2.3%. We find that Ld. CIT(A) observed that in assessee's own case for the assessment year 2007-08 in IT(SS)A Nos.24 & 35/Ind/2010, the Tribunal vide order dated 13.2.2012 had approved application of net profit rate @3.3% for estimation when there was evidence of unrecorded transactions. However, considering other factors, Ld. CIT(A) applied the rate @ 2.3% on the entire turnover. Considering totality of facts, admittedly the turnover which the basis of show cause notice of Excise Department has been set aside by the CESTAT, therefore the component is not available now for estimating the profit. We, therefore, direct the AO to adopt a net profit @3.3% ....

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.... unaccounted business. The ld. CIT/DR supported the order of the Assessing Officer. On the other hand, learned Counsel for the assessee relied upon the order of the ld. CIT(A). Considering the material available on record, we find that the CESTAT vide order dated 27.9.2018 has set aside the order passed by the Commissioner of Central Excise and Service Tax, therefore, the action of the Assessing Officer is not justified. Accordingly, we confirm the order of the ld. CIT(A). Thus, ground no.4 of the appeal of the Revenue is dismissed. 8.Now, we take up the appeal of the assessee in ITA No.587/Ind/2016 wherein the assessee has taised following grounds of appeal: "1. That On the facts and in circumstances of the case, ld. CIT(A) has....

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..... 11.The Assessing Officer held that the assessee had not followed the provisions of Section 145 of the Income Tax Act. The ld. CIT/DR supported the order of the Assessing Officer. On the other hand, learned Counsel for the assessee relied upon the order of the ld. CIT(A). We find that the Assessing Officer discussed the contents related to the show cause notice, cash payments towards purchase of scrap and also cash payment to the transporter on the same day, statements of Smt. Neera Banasal and Mayank Bansal, unexplained investment and valuation of closing stock and g.p. rate etc. in detail in the assessment order. While deciding ground no.1 of the appeal of the Revenue, we have partly allowed the ground of the appeal of the Revenue dis....