2016 (11) TMI 1742

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....e of convenience. 3. The assessee in ITA No.2071/PN/2014 has raised the following grounds of appeal :- Ground No. 1: On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A), Aurangabad, erred in confirming the determination of quantum of suppressed production / sale of TMT bars merely on the basis of consumption of electricity unit. The appellant prays that basis of consumption of electricity may kindly not be taken for determination of quantum of suppressed production and additions so confirmed may kindly be deleted. Ground No. 2: On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in confirming the addition on account of profit on sale of suppressed production to the tune of Rs.1,31,03,660. The appellant prays that the addition of Rs.1,31,03,660 on account of suppressed production may kindly be deleted. Ground No.3: Without prejudice to the above ground and on the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in estimating gross profit @ 4% on suppressed sale as the income of the appellant. The appellant prays that the income of the appellant on account of s....

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....iled before the Settlement Commission or the Commissioner of Excise, hence, there is no merit in the said addition made in the hands of assessee which was partly upheld by the CIT(A). 8. The learned Departmental Representative for the Revenue placed reliance on the order of Assessing Officer to point out that in view of erratic consumption of electricity, addition is warranted. 9. We have heard the rival contentions and perused the record. This is the case of rolling mills, wherein the addition was worked out in the hands of the assessee on the basis of US standards. The case of assessee before us was that in the case of present assessee, there was no case of any clandestine removal of goods without payment of Excise duty by the Excise authority or even by the Income Tax authority during the year. Further, no demand had been raised by the CCE for alleged suppression of production or any petition was moved before the DGCEI or the Settlement Commission. 10. Admittedly, in the case of assessee, there was no enquiry or search or investigation by the Excise Department during the year, under which any case of suppressed production was detected and / or clandestine removal of goods wit....

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....n case the said additional income has not been added while computing the income in the hands of the assessee for the respective years, the same may be directed to be added in the hands of the respective assessee in respective years. Accordingly, we direct the Assessing Officer to verify from the records for the respective years and include the additional income on account of such admitted clandestine removal of material without payment of Excise duty, by the assessee either before the Settlement Commission or before the Excise authorities, in the hands of the assessee. We have heard bunch of appeals and in some years, there is no admission of clandestine removal of material without payment of Excise duty and in those years in the absence of any evidence and / or any investigation or inquiry made by the Assessing Officer and where the Assessing Officer has failed to collect additional evidence, no addition can be made in the hands of the assessee, by way of extrapolation of sales for 300 days on account of any evidence found in any preceding or succeeding years. Further, no addition can be made in the hands of the assessee, where no petition has been filed by the assessee before the....

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....l G.P. rate declared by the assessee for that year, whichever is higher, on value of such admitted clandestine removal of material without payment of Excise duty, by the assessee before the Excise authorities. Thus, the assessee is directed to file the requisite details of proceedings before the Excise authorities, before the Assessing Officer in order to compute the additional income in the hands of assessee in the respective years." 13. Further, the Tribunal in assessee's own case with lead order in ITA Nos.276 & 277/PN/2012, relating to assessment years 2006-07 & 2007-08, vide order dated 12.08.2015 had deleted the addition made on account of excess production following the consumption of electricity as per US standards as not merited. 14. The issue arising before us identical to the issue before the Tribunal in Shree Om Rolling Mills Pvt. Ltd. Vs. Addl. CIT (supra) and in assessee's own case. Further, during the year under consideration, neither investigation by the DGCEI nor any suppressed production has been detected and admitted by the assessee. Further, the assessee has not moved any petition before the Settlement Commission or any other Excise authorities. In the totali....