ACIT CENTRAL CIRCLE, Agra V. SHRI PRAVEEN KUMAR, Agra

ITA 315/AGR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6335 (ITAT-AGRA)
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 31-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DIPENDRA MOHAN
• Keywords: Additional evidence
• Section: 234B; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH: AGRA BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER, AND D R . MITHA LAL MEENA, ACCOUNTANT MEMBER I.T.A NO S . 306 TO 309 /AGRA/201 6 (ASSESSMENT YEAR S 200 3 - 0 4 TO 2006 - 07 ) SHRI PRAVEEN KUMAR, 3/15B, BHARATPUR HOUSE, KHANDARI AGRA. PANNO.ABXPS7293R (ASSESSEE) VS.. A CIT, CENTRAL CIRCLE, AGRA . (REVENUE) I.T.A NO S . 315 TO 318/AGRA/2016 (ASSESSMENT YEARS 2003 - 04 TO 2006 - 07) ACIT, CENTRAL CIRCLE, AGRA. (REVENUE) V S .. SHRI PRAVEEN KUMAR, 3/15B, BHARATPUR HOUSE,KHANDARI AGRA. PANNO.ABXPS7293R (ASSESSEE) ASSESSEE BY SHRI DIPENDRA MOHAN, AR . REVENUE BY SHRI WASEEM ARSHAD, SR. DR. ORDER PER , BENCH : THESE ARE ASSESSEES APPEAL S FOR A SSESSMENT Y EARS . 200 3 - 0 4 TO 2006 - 07 , INVOLVING COMMON ISSUE, FOR CONVENIENCE, THE FACTS ARE BEING TAKEN FROM ITA NO S . 306/AGRA/2016. DATE OF HEARING 30 . 0 5 .201 7 DATE OF PRONOUNCEMENT 02 .06 .201 7 I.T.A NO S . 306 TO 309/AGRA/2016 & I.T.A NO S . 315 TO 318/AGRA/2016 2 I.T.A NO S . 306 TO 309/AGRA/2016 2. THE FOLLOWING GROUNDS HAVE BEEN RAISED : 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION AT RS.52,05,587/ - BEING THE ESTIMATED GROSS PROFIT WORKED OUT SOLELY ON THE BASIS OF SUBJUDICE EXCISE ORDER WITHOUT THERE BEING ANY INTANGIBLE OR INCRIMINATING MATERIAL BEING FOUND DURING THE COURSE OF INCOME - TAX SEARCH. 2. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION AT RS. 52,05,587/ - BEING THE GROSS PROFIT AND TREATING IT AS THE INCOME OF THE ASSESSEE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE INTEREST CHARGED U/S 234B OF THE ACT IS ERRONEOUS AND NOT JUSTIFIABLE. 3. AN APPLICATION FOR ADDITIONAL EVIDENCE HAS BEEN FILED BEFORE US ON BEHALF OF THE ASSESSEE. ITS CONTENTS ARE AS FOLLOWS: THE PRESENT APPEALS BEFORE TH E HON'BLE TRIBUNAL ARISES OUT OF THE ORDER PASSED BY LD. A.O AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), AGRA WHEREIN ADDITION OF THE AMOUNT OF SALES ON THE BASIS OF ORDER OF COMMISSIONER (EXCISE) WAS ADDED AS THE UNDISCLOSED INCOME OF THE APPELL ANT. THE SAID ORDER OF COMMISSIONER (EXCISE) WAS SUB - JUDICE AT THE TIME OF ASSESSMENT AND THE APPELLATE PROCEEDINGS BEFORE THE I.T.A NO S . 306 TO 309/AGRA/2016 & I.T.A NO S . 315 TO 318/AGRA/2016 3 HON'BLE CESAT. NOW, THE ORDER OF HON'BLE CESAT DATED 26 - 10 - 2016 HAS BEEN RECEIVED, I.E. AFTER THE COMPLETION OF ASSESSMENT AND TH E APPELLATE PROCEEDINGS. THE APPELLANT UNDERSTANDS THAT THIS HON'BLE TRIBUNAL IS HIGHEST AND THE LAST FACT FINDING AUTHORITY AND IT WOULD BE IN THE INTEREST OF SUBSTANTIAL JUSTICE THAT THE SAID ORDER OF HON'BLE CESAT, BE ADMITTED AS ADDITIONAL EVIDENCE WH ICH IS AT PAPER BOOK PAGES 21 TO 45, AND ADJUDICATED UPON. THE EVIDENCE WAS NOT FILED EARLIER AS THE ORDER WAS PASSED SUBSEQUENT TO BOTH THE PROCEEDINGS AND HENCE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE TO PRODUCE THE ADDITIONAL EVIDENCE BEFORE THE AUTHORITIES BELOW. THE APPELLANT PRAYS AND SEEKS YOUR HONOUR'S PERMISSION AND LEAVE TO FILE THE ADDITIONAL EVIDENCE AND HUMBLY PRAYS THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE ADDITIONAL EVIDENCES FILED BY THE APPELLANT BE KINDLY ADMITTED AND ADJUD ICATED UPON AND OBLIGE. 4. THE ADDITION UNDER CONSIDERATION, AS CONTENDED, WAS MADE ON THE BASIS OF ORDER DATED 29.11.2007 (APB 46 - 306), OF THE COMMISSIONER (EXCISE), WHEREBY, EXCISE DEMAND OF RS.13,06,19,045/ - FOR THE PERIOD FROM 1.1.2003 TO 13.12.2005, I.E., FOR AYS 2003 - 04 TO 2006 - 07, I.E., THE YEARS UNDER CONSIDERATION WAS LEVIED. THE LD. CIT(A) CONFIRMED PART OF THE ADDITIONS MADE BY THE AO VIDE SEPARATE I.T.A NO S . 306 TO 309/AGRA/2016 & I.T.A NO S . 315 TO 318/AGRA/2016 4 ORDERS FOR ALL THESE YEARS, EACH DATED 30.06.2016. THESE ORDERS OF THE LD. CIT(A) ARE UNDER CHALLE NGED BY THE ASSESSEE BEFORE US BY WAY OF THE PRESENT APPEAL. 5. APROPOS PASSING THE LD. CIT(A)S AFORESAID ORDERS DATED 30.06.2016, ON APPEAL BY THE ASSESSEE BEFORE CESAT AGAINST THE ORDER (SUPRA) DATED 29.11.2007 PASSED BY THE COMMISSIONER (EXCISE) THE C ESAT, VIDE ORDER DATED 26.10.2016, (APB 21 - 45), HAS QUASHED THE ORDER OF THE COMMISSIONER (EXCISE). FOR READY REFERENCE, THE RELEVANT PORTION OF THE CESAT REPRODUCED AS UNDER: HAVING CONSIDERED THE RIVAL CONTENTIONS, WE FIND THAT BILLTY BOOKS AND CHALLANS RESUMED FROM TRANSPORTER M/S BFC ARE NOT RELIED FOR ISSUE OF SHOW CAUSE NOTICE AND IT IS CLAIMED BY REVENUE THAT ANNEXURE - A TO THE SHOW CAUSE NOTICE WAS PREPARED ON THE BASIS OF BILLTY BOOKS AND CHALLANS RESUMED FROM TRANSPORTER. ANNEXURE - A INDICATES THAT 9403 NUMBER OF BAGS OF GUTKHA WERE CLEARED THROUGH M/S BFC IN THE GUISE OF PASHU AHAAR. THE STATEMENTS AS STATED ABOVE OF THE WITNESSES WHICH WERE DEALING WITH GOODS IN BFC HAVE CATEGORICALLY STATED DURING THEIR CROSS - EXAMINATION THAT GUTKHA WAS NEVER BOO KED IN THE GUISE OF PASHU AHAAR. THEREFORE, WE HOLD THAT THERE IS NO EVIDENCES TO ESTABLISH THAT 9403 BAGS OF GUTKHA WAS MANUFACTURED BY M/S P & J AROMATICS. WE FURTHER FIND FROM PAGE NO.1784 TO 1990 OF APPEAL PAPER BOOK THAT THE INFORMATION GIVEN BY RAILW AY AUTHORITIES IS GENERAL INFORMATION IN RESPECT OF ENTIRE GUTKHA BOOKED AT AGRA RAILWAY STATION AND THAT INFORMATION DOES NOT INDICATE THAT SAID GOODS I.T.A NO S . 306 TO 309/AGRA/2016 & I.T.A NO S . 315 TO 318/AGRA/2016 5 WERE MANUFACTURED BY M/S P & J AROMATICS. THE ENTIRE DEMAND ON THE BASIS OF INFORMATION GIVEN BY RAILWAY AUTHORITIES THAT 40553 BAGS OF GUTKHA WERE CLANDESTINELY REMOVED IS NOT ESTABLISHED. WE HOLD THAT REVENUE COULD NOT ESTABLISH THAT ON THE BASIS OF INFORMATION GIVEN BY RAILWAY AUTHORITIES, M/S P & J AROMATICS MANUFACTURED 40553 BAGS OF GUTKHA AND CLEARED THE SAME WITHOUT PAYMENT OF DUTY. WE FIND A GREAT FORCE IN ALL THE ARGUMENTS PUT FORTH BY THE COUNSEL FOR THE APPELLANTS. WE ALSO FIND THAT RAW MATERIALS CANNOT BE CONFISCATED UNDER RULE 25 OF CENTRAL EXCISE RULES, 2002. WE THEREFORE, MODIFY THE IMPUGNED O RDER - IN - ORIGINAL BY SETTING ASIDE THE CONFIRMATION OF DEMAND OF RS.13,06,19,045/ - AND SETTING ASIDE THE PENALTY OF RS.13,06,19,045/ - AND SETTING ASIDE THE ORDER FOR RECOVERY OF INTEREST ON RS.13,06,19,045/ - AND SETTING ASIDE THE PENALTY OF RS.50 LAKH ON SH RI PRAVEEN KUMAR SINGHAL AND SETTING ASIDE PENALTY OF RS.20 LAKH ON SHRI YOGENDRA KUMAR SINGHAL AND SETTING ASIDE THE CONFISCATION OF 31.6KG AND 1282.4KG OF JEET BRAND LAMINATION AND CONFISCATION OF JEET BRAND LAMINATION AND OUTER VALUED OF RS.7,61,875/ - A ND HDPE OUTER VALUED AT RS.9,600/ - AND CONFISCATION OF 6417 KGS OF JEET BRAND LAMINATION & OUTER VALUED AT RS.8,39,500/ - . ACCORDINGLY, THE APPEAL NO.388 OF 2003 IS PARTIALLY ALLOWED AND APPEAL NOS.389 & 390 IS ALLOWED. THE APPELLANTS ARE ENTITLED FOR CONS EQUENTIAL RELIEF AS PER LAW. I.T.A NO S . 306 TO 309/AGRA/2016 & I.T.A NO S . 315 TO 318/AGRA/2016 6 6. THE AFORESAID CESAT ORDER WHICH THE ASSESSEE SEEKS TO INTRODUCE ON RECORD AS ADDITIONAL EVIDENCE. 7. THE IMPUGNED ORDER, AS STATED, WERE PASSED ON 30.06.2016. THE CESAT ORDER DATED IS 26.10.2016, I.E., BASED PASSING OF THE IMPUGNED ORDERS. THUS, OBVIOUSLY, THE ASSESSEE COULD NOT HAVE PRODUCED THE SAME BEFORE THE LD. CIT(A) AND THE LD. CIT(A), NOT HAVING THE BENEFIT OF THE CESAT ORDER PARTLY CONFIRMED THE ADDITIONS MADE BY THE AO, BASED ON THE ORDER (SUPRA) DATED 29.11.2007 PASSED BY THE COMMISSIONER (EXCISE) WHICH STANDS QUASHED BY THE CESAT ORDER DATED 26.10.2016. 8. IN VIEW OF THE ABOVE, THE APPLICATIONS FOR ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IN ALL THESE FOUR APPEALS IS ALLOWED. THE MATTER IS REMITTED TO THE LD. CIT(A) TO RE - DECIDE THE SAME, TAKING INTO CONSIDERATION THE AFORESAID CESAT ORDER DATE 26.10.2016. THE ASSESSEE SHALL BE ALLOWED DUE AND ADEQUATE OPPORTUNITY TO DEFEND ITS CASE. ALL PLEASE AVAILABLE TO THE ASSESSEE UNDER THE LAW SHALL SO REMAIN AVAILABLE TO HIM. THE ASSESSEE SHALL CO - OPERATE IN THE FRESH PROCEEDINGS BEFORE THE LD. CIT(A). I.T.A NO S . 315 TO 318/AGRA/2016 9. THESE ARE DEPARTMENTS APPEALS FOR A.YS. 2003 - 04 TO 2006 - 07, FILED AS CROSS APPEALS TO THE ASSESSEES ABOVE ITA NO. 306 TO 309/AGRA/2016 . SINCE THE MATTER I.T.A NO S . 306 TO 309/AGRA/2016 & I.T.A NO S . 315 TO 318/AGRA/2016 7 HAS BEEN REMITTED TO THE FILE OF THE LD. CIT(A) BY US AS ABOVE, THESE APPEALS ARE ALSO REMANDED TO THE LD. CIT(A), TO BE DECIDED AFRESH ALONGWITH ITA NOS. 306 TO 309/AGRA/2016, ON FOLLOWING OUR DIRECTIONS ISSUED THEREIN. 10 . IN THE RESULT, FOR STATISTICAL PURPOSES, ITA NOS. 306 TO 309/AGRA/2016 FILED BY THE ASSESSEE AS WELL AS FILED BY THE DEPARTMENT ARE TREATED AS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 02 / 06 / 201 7 . SD/ - SD/ - ( D R . MITHA LAL MEENA) (A.D. JAIN) ACCOU N TANT MEMBER JUDICIAL MEMBER DATED: 02 /06 /201 7 *AKV* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT AGRA