EURO DECOR P.LTD, MUMBAI V. ACIT CEN COR 17 & 26, MUMBAI

ITA 2516/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0967 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 15-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S KEMWAL
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI SAKTIJIT DEY, JM & SHRI MANOJ KUMAR AGGA RWAL, AM ITA NOS. 2516, 2517, 2518 & 2519/MUM/2014 ASSESSMENT YEARS 2003-04, 2004-05, 2005-06 & 2006-0 7 EURO DCOR P. LTD., ERSTWHILE SUBHNEN DCOR P LTD. 101.102 OPP GURUNANAK PETROL PUMP, PEREIRA HILL ROAD, ANDHERI (E), MUMBAI 400 099. PAN : AABCS4248L VS. ACIT CENT. CIR 17& 28 MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI S S KEMWAL DATE OF HEARING : 2 4 .0 4 .2017 DATE OF PRONOUNCEMENT : 03 .0 5 .2017 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: AFORESAID APPEALS BY THE SAME ASSESSEE ARE DIRECTE D AGAINST A COMMON ORDER DATED 22.01.2014, OF LEARNED CIT(A)-20, MUMBA I, FOR THE ASSESSMENT YEARS 2003-04, 2004-05, 2005-06 AND 2006-07. 2. THE ONLY COMMON ISSUE ARISING FOR CONSIDERATION IN THESE APPEALS IS IN RELATION TO ADDITION MADE ON ACCOUNT OF UNDER INVOI CING OF SALES DETECTED BY CENTRAL EXCISE DEPARTMENT. ITA NO 2516 TO 2519/MUM//2015 M/S. EURO DCOR P LTD. 2 3. BRIEFLY, THE FACTS ARE ASSESSEE - A COMPANY, IS STATED TO BE ENGAGED IN MANUFACTURE AND SALE OF DECORATIVE PLY AND LAMINATE S. A SEARCH OPERATION WAS CONDUCTED IN THE FACTORY, OFFICE AS WELL AS RES IDENTIAL PREMISES OF THE ASSESSEE COMPANY AND ITS DIRECTORS BY THE DIRECTOR GENERAL OF CENTRAL EXCISE INTELLIGENCE, BANGALORE ZONAL UNIT ON 26.05.2005 AN D ON SUBSEQUENT DATES. IT IS ALLEGED, DURING THE SEARCH OPERATION VARIOUS INCRIMINATING RECORDS/DOCUMENTS WERE RECOVERED, WHICH REVEALED TH AT ASSESSEE WAS GROSSLY UNDER INVOICING THE GOODS MANUFACTURED BY IT TO EVA DE PAYMENT OF CENTRAL EXCISE DUTY. ON THE BASIS OF THE MATERIAL FOUND AS A RESULT OF SEARCH, THE CENTRAL EXCISE DEPARTMENT ISSUED A SHOW CAUSE NOTIC E TO THE ASSESSEE ALLEGING EVASION OF CENTRAL EXCISE DUTY TO THE TUNE OF ` .10,16,73,650/- DURING THE PERIOD APRIL 2002 TO MAY 2005. ON THE BASIS OF THE INFORMATION OBTAINED FROM THE CENTRAL EXCISE DEPARTMENT REVEALING UNDER INVOICING OF SALES BY THE ASSESSEE, THE AO REOPENED THE ASSESSMENT U/S. 147 O F THE ACT FOR THE IMPUGNED ASSESSMENT YEARS AND ULTIMATELY COMPLETED THE ASSESSMENT BY MAKING SUBSTANTIAL ADDITIONS AT THE HANDS OF THE AS SESSEE. AS IT EMERGES FROM RECORD, THE ASSESSEE CHALLENGED THE ADDITION M ADE ON ACCOUNT OF SUPPRESSION/UNDER INVOICING OF SALES BEFORE THE CIT (A) AND, THEREAFTER, BEFORE THE ITAT. THE ITAT WHILE DISPOSING OFF THE APPEALS OF THE ASSESSEE RESTORED THE ISSUE BACK TO THE FILE OF THE AO FOR FRESH ADJU DICATION ON THE BASIS OF THE FINAL ADJUDICATION TO BE MADE BY THE CENTRAL EXCISE DEPARTMENT IN PURSUANCE ITA NO 2516 TO 2519/MUM//2015 M/S. EURO DCOR P LTD. 3 TO THE ORDER OF CESTAT. AS IT APPEARS, IN PURSUANC E TO THE DIRECTION OF THE ITAT, THE AO AGAIN COMPLETED THE ASSESSMENT BY REPE ATING THE ADDITIONS MADE IN THE ORIGINAL ASSESSMENT ORDERS. AGGRIEVED OF THE ASSESSMENT ORDERS, SO PASSED, THE ASSESSEE PREFERRED APPEALS BEFORE TH E CIT(A). THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A ND PERUSING THE MATERIALS ON RECORD HAVING FOUND THAT IN PURSUANCE TO THE DIR ECTIONS OF THE CESTAT, THE COMMISSIONER OF CENTRAL EXCISE HAS MADE FRESH A DJUDICATION, WHEREIN THE SUPPRESSION/UNDER INVOICING OF SALES WERE QUALIFIED AT A SUBSTANTIALLY REDUCED FIGURE, RESTRICTED THE ADDITION TO SUCH REVISED FIG URE. AS PER THE FRESH ADJUDICATION ORDER OF THE CENTRAL EXCISE COMMISSION ER THE ADDITIONS ON ACCOUNT OF UNDER INVOICING OF SALES FINALLY SUSTAIN ED BY THE CIT(A) FOR DIFFERENT ASSESSMENT YEARS ARE AS UNDER: ASSESSMENT YEAR ADDITIONS SUSTAINED BY CIT(A) 2003-04 1,35,07,119 2004-05 1,87,23,706 2005-06 1,92,34,806 2006-07 38,88,525 THUS, THE TOTAL ADDITION SUSTAINED BY THE CIT(A) FO R ALL THE ASSESSMENT YEARS UNDER APPEAL AMOUNTED TO ` .5,53,54,156/- AS AGAINST ADDITIONS OF ITA NO 2516 TO 2519/MUM//2015 M/S. EURO DCOR P LTD. 4 ` .103,43,37,283/- MADE BY THE AO. STILL AGGRIEVED W ITH THE ORDER OF THE CIT(A) ASSESSEE IS BEFORE US. 4. WHEN THE APPEALS WERE CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. ON P ERUSAL OF RECORD, IT IS SEEN THAT ON 2.11.2016, WHEN THE APPEAL WAS LAST FIXED F OR HEARING, NO ONE APPEARED FOR THE ASSESSEE. THEREFORE, WHILE ADJOUR NING THE APPEALS TO THIS DATE, THE BENCH DIRECTED ISSUANCE OF NOTICE OF HEAR ING TO THE ASSESSEE THROUGH RPAD. AS COULD BE SEEN FROM THE POSTAL ACK NOWLEDGEMENT PLACED ON RECORD THE NOTICE OF HEARING ISSUED THROUGH RPAD WAS DULY SERVED ON THE ASSESSEE ON 14.12.2016. HOWEVER, INSPITE OF SERVIC E OF NOTICE, NEITHER THE ASSESSEE HAS APPEARED NOR HAS FILED ANY APPLICATION SEEKING ADJOURNMENT. THIS SHOWS COMPLETE RECALCITRANT ATTITUDE OF THE AS SESSEE AND LACK OF INTEREST IN PURSUING ITS APPEALS. THAT BEING THE CASE, WE P ROCEED TO DISPOSE OF THE APPEALS EXPARTE QUA THE ASSESSEE, AFTER HEARING THE LEARNED DR AND ON THE BASIS OF THE MATERIALS AVAILABLE ON RECORD. 5. AS COULD BE SEEN FROM THE FACTS ON RECORD, ON TH E BASIS OF SEARCH OPERATION CARRIED OUT IN CASE OF THE ASSESSEE BY TH E CENTRAL EXCISE AUTHORITIES, VARIOUS INCRIMINATING MATERIALS WERE R ECOVERED INDICATING UNDER INVOICING OF SALES BY THE ASSESSEE ON THE BASIS OF WHICH ADDITIONS WERE MADE BY THE AO. HOWEVER, AS COULD BE SEEN, THE CESTAT W HILE DECIDING ASSESSEES APPEAL RESTORED THE MATTER BACK TO THE COMMISSIONER CENTRAL EXCISE FOR FRESH ITA NO 2516 TO 2519/MUM//2015 M/S. EURO DCOR P LTD. 5 ADJUDICATION. ON THE BASIS OF THE ORDER PASSED BY CESTAT, THE ITAT ALSO RESTORED THE ISSUE BACK TO THE FILE OF THE AO FOR F RESH ADJUDICATION ON THE BASIS OF THE ORDER TO BE PASSED BY THE COMMISSIONER , CENTRAL EXCISE. IT IS EVIDENT FROM THE ORDER OF THE CIT(A) THAT THE COMMI SSIONER CENTRAL EXCISE, IN THE MEANWHILE, HAS MADE FRESH ADJUDICATION ON THE U NDER INVOICING OF SALES IN PURSUANCE TO THE DIRECTIONS OF THE CESTAT AND HAS R EVISED THE ACTUAL SUPPRESSION/UNDER INVOICING OF SALES MADE BY THE AS SESSEE. UNDISPUTEDLY, THE CIT(A) HAS ALSO RESTRICTED THE ADDITION ON THE BASIS OF THE UNDER INVOICING/SUPPRESSION OF SALES FINALLY ADJUDICATED BY THE COMMISSIONER OF CENTRAL EXCISE IN PURSUANCE OF DIRECTIONS OF CESTAT . WE HAVE FURTHER NOTED, THE CIT(A) TAKING INTO ACCOUNT THE FACT THAT THE AD JUDICATION MADE BY CENTRAL EXCISE COMMISSIONER WAS SUBJECTED TO FURTHER APPEAL BEFORE THE CESTAT, DIRECTED THE AO TO GIVE CONSEQUENTIAL EFFECT TO THE ADDITIONS MADE ON ACCOUNT OF UNDER INVOICING OF SALES ON THE BASIS OF THE FIN AL ORDER OF THE CESTAT. IN OUR VIEW, THE ORDER PASSED BY THE CIT(A) IS REASONA BLE AND CALLS FOR NO INTERFERENCE. MOREOVER, THE ASSESSEE HAS NEITHER A PPEARED BEFORE US NOR BROUGHT ANY MATERIAL TO INDICATE THAT THE QUANTUM O F UNDER INVOICED SALES DETERMINED BY CENTRAL EXCISE COMMISSIONER HAVE BEEN INTERFERED WITH BY CESTAT. THAT BEING THE CASE, WE DO NOT FIND ANY IN FIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY, THE GROUNDS RAISED BY THE ASS ESSEE BEING DEVOID OF MERIT ARE DISMISSED. ITA NO 2516 TO 2519/MUM//2015 M/S. EURO DCOR P LTD. 6 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD DAY OF MAY 2017. SD/- SD/- (MANOJ KUMAR AGGARWAL) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUD ICIAL MEMBER MUMBAI; DATED : 3 RD MAY, 2017 SA COPY OF THE ORDER FORWARDED TO : 1. THE APP ELL ANT. 2. THE RESPONDENT. 3. T HE CIT(A), MUMBAI 4. THE CIT 5. DR, E BENCH, ITAT, MUMBAI BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI