DCIT CEN CIR 4(4) CEN RG 4, MUMBAI V. ESS DEE ALUMINIUM LTD, DAMAN

ITA 1997/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0828 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 02-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 07-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RISHABH SHAH LD
• Section: 143(3)

Judgement Text

ITA NO.1997/M/2015 ESS DEE ALUMINIUM LIMITED ASSESSMENT YEAR 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 1997/MUM/2015 ( / ASSESSMENT YEAR: 2010-11) DEPUTY COMMISSIONER OF INCOME TAX CC 4(4) CENTRAL RANGE-4 ROOM NO. 409, 4 TH FLOOR AAYKAR BHAVAN M.K.ROAD MUMBAI 400 020 / VS. ESS DEE ALUMINIUM LTD. C/O ESS DEE HOUSE AKURLI ROAD NEXT TO MAHINDRA & MAHINDRA GATE NO.4 KANDIVALI (E) MUMBAI - 400 101 ./ ./PAN/GIR NO. AABCE-3113-G ( /APPELLANT ) : ( !' / RESPONDENT ) A SSESSEE BY : RISHABH SHAH, LD. AR RE VENUE BY : NAVEEN GUPTA, LD. DR / DATE OF HEARING : 02/05/2017 / DATE OF PRONOUNCEMENT : 02/05/2017 ITA NO.1997/M/2015 ESS DEE ALUMINIUM LIMITED ASSESSMENT YEAR 2010-11 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMENT Y EAR [AY] 2010- 11 ASSAILS THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- VALSAD , [CIT(A)], MUMBAI DATED 09/01/2015 QUA DELETION OF ADDITION MADE ON ACCOUNT OF UNDER VALUATION OF SCRAP SALE TO THE TUNE OF RS.1,00,28,027/- . 2. BRIEFLY STATED, THE ASSESSEE, BEING RESIDENT COR PORATE ASSESSEE, WAS ASSESSED FOR IMPUGNED AY U/S 143(3) AT RS.103,1 1,35,406/- AFTER ADDITION OF UNDERVALUATION OF SCRAP SALE OF RS.1,00 ,28,027/- VIDE ASSESSING OFFICER [AO] ORDER DATED 31/01/2013 AS AG AINST NIL RETURNED FILED BY ASSESSEE ON 29/09/2010. PURSUANT TO INFORM ATION RECEIVED FROM THE EXCISE DEPARTMENT REGARDING SEARCH CARRIED OUT BY THE SAID DEPARTMENT ON ASSESSEE COMPANY, IT WAS NOTED THAT T HE ASSESSEE UNDERVALUED THE SALE INVOICES TO THE EXTENT OF RS.1 ,00,28,027/- ON SALE OF CERTAIN ALUMINIUM SCRAP . HOWEVER, THE ASSESSEE CONTESTED THAT NO CONCRETE / DIRECT EVIDENCES WERE FOUND BY THE EXCIS E DEPARTMENT AND THE ASSESSEE HAS CHALLENGED THE SHOW CAUSE NOTICE ISSUE D TO HIM BY THE SAID DEPARTMENT AND THE SAME HAS NOT ATTAINED FINAL ITY AND THEREFORE, THE SAME IS NOT CONCLUSIVE. HOWEVER, NOT CONVINCED, AO AFTER PERUSAL OF STATEMENT OF VARIOUS PARTIES MADE DURING SEARCH AND CONTENTIONS OF ASSESSEE ADDED THE SAME TO THE INCOME OF THE ASSESS EE. AGGRIEVED, THE ASSESSEE CONTESTED THE ADDITION WITHOUT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 09/01/2015 WHEREIN LD. CI T(A) RELYING UPON ITA NO.1997/M/2015 ESS DEE ALUMINIUM LIMITED ASSESSMENT YEAR 2010-11 3 THE DECISION RENDERED BY ITS PREDECESSOR IN ASSESSE ES OWN CASE FOR AY 2008-09 & 2009-10, CONFIRMED THE ADDITIONS, AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE US. 3. THE LD. COUNSEL FOR ASSESSEE [AR] DREW OUR ATTEN TION TO THE FACT THAT THE ASSESSEE SUFFERED SIMILAR ADDITIONS UNDER SIMILAR CIRCUMSTANCES IN AY 2008-09 AND THE MATTER WAS CARRIED UP-TO THE LEVEL OF TRIBUNAL VIDE ITA NO. 2032/AHD/2011 & ITA 2327/AHD/2011 DATED 15/ 05/2015 AND THE TRIBUNAL RESTORED THE ISSUE BACK TO THE FILE OF AO FOR ADJUDICATION IN LINE WITH THE OUTCOME OF ORDER PASSED BY EXCISE DEPARTME NT. THE LD. DR FAIRLY CONCEDED THE SAME. 4. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RELEVANT DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL WHERE WE FIND THAT THE TRIBUNAL RELYING UPON THE ORDER OF TRIBUNAL IN ACIT VS. SANTRO TILES LTD. [ITA NO. 1277 TO 1280/AHD/2012 ORDER DATED 23/01/2015] MADE THE FOLLOWING DIRECTIONS:- 30.IN THE INSTANT CASE ALSO, EXCISE DEPARTMENT HAS NOT ADJUDICATED THE CASE. THEREFORE, FOLLOWING THE ORDER OF THE CO-ORDINATE B ENCH OF TRIBUNAL CITED SUPRA, WE DEEM IT PROPER TO RESTORE THIS ISSUE TO THE FILE OF THE AO WITH DIRECTION TO DECIDE THE ISSUE AFRESH, AFTER THE ADJUDICATION ORDER IS PASSE D BY THE CENTRAL EXCISE DEPARTMENT, THUS, THIS GROUND OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. RESPECTFULLY, FOLLOWING THE SAME, THERE BEING NO CH ANGE IN FACTS OR CIRCUMSTANCES, WE ALSO RESTORE THE MATTER BACK TO T HE FILE OF AO WITH SIMILAR DIRECTIONS TO PASS THE ORDER IN LINE WITH T HE OUTCOME OF ORDER OF EXCISE DEPARTMENT. ITA NO.1997/M/2015 ESS DEE ALUMINIUM LIMITED ASSESSMENT YEAR 2010-11 4 5. THE REVENUES APPEAL STANDS ALLOWED FOR STATISTI CAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND MAY, 2017. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 02.05.2017 SR.PS:- THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. ) ( ) / THE CIT(A) 4. ) / CIT CONCERNED 5. !$, , , , / DR, ITAT, MUMBAI 6. -. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI