DCIT, New Delhi V. M/s. Dhir Global Industries Pvt. Ltd., New Delhi

ITA 5360/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7337 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 14-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard; Wrong claim; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5360/DEL./2016 (ASSESSMENT YEAR : 2007-08) ITA NO.5361/DEL./2016 (ASSESSMENT YEAR : 2008-09) DCIT, CIRCLE 7 (2), VS. M/S. DHIR GLOBAL INDUSTRIE S PVT. LTD., NEW DELHI. 207, OKHLA INDUSTRIAL AREA ESTATE, PHASE II, NEW DELHI. (PAN : AAACD7431P) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : MS. ASHIMA NEB, SENIOR DR DATE OF HEARING : 18.07.2019 DATE OF ORDER : 25.07.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN BOTH THE AFORESAID APPEALS, THE SAME ARE BEING D ISPOSED OFF BY WAY OF COMPOSITE ORDER TO AVOID REPETITION OF DISCU SSION. 2. APPELLANT, DCIT, CIRCLE 7 (2), NEW DELHI (HEREIN AFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOU GHT TO SET ASIDE THE IMPUGNED ORDERS BOTH DATED 18.07.2016 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-3, NEW DELHI QUA THE ASSESSMEN T YEARS 2007-08 & 2008-09 ON THE IDENTICAL GROUND INTER ALIA THAT : - ITA NO.5360 & 5361/DEL./2016 2 LD. CIT (A) ERRED IN LAW AND ON FACTS OF THE CASE IN RESTRICTING THE ADDITION (RS.2,17,35,677/- TO RS.11,92,892/- AND RS .2,27,84,478/- TO RS.95,75,443/- FOR AYS 2007-08 & 2008-09 RESPECTIVE LY) MADE BY THE AO ON ACCOUNT OF NON PAYMENT OF EXCISE DUTY WITHOUT APPRECIATING THE FACTS THAT THE EXCISE DEPARTMENT HAD CHALLENGED THE ORDER OF THE COMMISSIONER OF CENTRAL EXCISE, WHICH REDUCED THE L IABILITY OF THE ASSESSEE, BEFORE THE CESTAT. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE ISSUE AT HAND ARE : ORIGINALLY ASSESSMENT WAS FRAMED UNDER S ECTION 143 (3) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) VIDE ORDER DATED 12.10.2009 & 21.03.2010 AT THE INCOME OF RS.1,10,10 ,960/- & RS.1,00,55,060/- FOR AYS 2007-08 & 2008-09 RESPECTI VELY. SUBSEQUENTLY, ON RECEIPT OF COMMUNICATION FROM THE OFFICE OF DIRECTORATE OF INVESTIGATION, CENTRAL EXCISE, NEW D ELHI THAT DURING THE SEARCH ON THE FACTORY PREMISES OF THE ASSESSEE, IT IS FOUND THAT THEY HAVE PREPARED TWO SETS OF ACCOUNTS AND ITS AUDIT CERTIFI CATION IS FORGED AND AS SUCH, SALE CONTENTS MENTIONED IN THE BALANCE SHEET ARE QUITE DIFFERENT AND BY ADOPTING THIS METHOD, ASSESSEE HAS EVADED EXCISE DUTY TO THE TUNE OF RS.18 CRORES. THEN, AFTER REOPENING, ASSESSMENT WA S FRAMED UNDER SECTION 147/143(3) OF THE ACT THEREBY MAKING ADDITI ON OF RS.2,17,35,677/- & RS.2,27,84,478/- FOR AYS 2007-08 & 2008-09 RESPECTIVELY ON ACCOUNT OF NON-PAYMENT OF EXCISE DU TY AND ON ACCOUNT OF MAKING FALSE CLAIM IN RETURN OF INCOME ON THE BA SIS OF ADMISSION MADE BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDI NGS. 4. ASSESSEE CARRIED THE MATTER BY WAY OF APPEALS BE FORE THE LD. CIT (A) WHO HAS RESTRICTED THE ADDITION FROM RS.2,17,35 ,677/- TO RS.11,92,892/- & FROM RS.2,27,84,478/- TO RS.95,7 5,443/- FOR AYS ITA NO.5360 & 5361/DEL./2016 3 2007-08 & 2008-09 RESPECTIVELY BY PARTLY ALLOWING T HE APPEALS. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBU NAL BY WAY OF FILING THE PRESENT APPEALS. 5. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEEDED TO DEC IDE THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. SENIOR DR AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE TO THE APPEAL WHO HAS RELIED UPON THE ORDER PASSED BY THE AO, GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDERS P ASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. LD. CIT (A) RESTRICTED THE ADDITION FROM RS.2,17 ,35,677/- TO RS.11,92,892/- & FROM RS.2,27,84,478/- TO RS.95,7 5,443/- FOR AYS 2007-08 & 2008-09 RESPECTIVELY ON THE BASIS OF FINA L ORDER PASSED BY THE COMMISSIONER OF CENTRAL EXCISE, DELHI 3 DATED 11. 07.2014 WHEREBY HE HAS WORKED OUT THE DIFFERENTIAL EXCISE DUTY BY R ETURNING FOLLOWING FINDINGS :- HAVING GONE THROUGH THE SUBMISSIONS OF THE APPELLAN T, ORDER OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER AND TH E MATERIAL EVIDENCES PLACED ON THE RECORD, IT EMERGES THAT THE COUNSEL OF THE APPELLANT SUBMITTED THE CERTIFIED COPY OF THE FINAL ORDER PASSED BY THE COMMISSIONER CENTRAL EXCISE DELHI-III DATED 11 .07.2014. THE COMMISSIONER CENTRAL EXCISE -III, DELHI HAS WOR KED OUT THE TOTAL DIFFERENTIAL EXCISE DUTY AT RS. 6,43,81,944/- AT PAGE NO. 193 OF THE FINAL ORDER. THE DIFFERENTIAL EXCISE DUTY AS PER THE FINAL ORDER FOR THE PERIOD OF NOVEMBER, 2006 TO MARCH, 20 07 WAS RS. 91,36,385 WHICH WAS REDUCED TO THE EXTENT OF RS.11, 92,892/-. THE WORKING SHEET FOR THE PERIOD OF NOVEMBER, 2006 TO 1 1 TH AUGUST, ITA NO.5360 & 5361/DEL./2016 4 2010 IS KEPT AT PAGE NO. 18 OF THE PAPER BOOK FILED ON 16.03.2016. IN VIEW OF THIS, THE ADDITION OF RS.2,17,35,677/- O N ACCOUNT OF DIFFERENTIAL EXCISE DUTY MADE BY THE ASSESSING OFFI CER IS RESTRICTED TO RS.11,92,892/-. THE ASSESSING OFFICER IS DIRECTED TO MODIFY THE ORDER OF ASSESSMENT ACCORDINGLY. 8. NONE APPEARED ON BEHALF OF THE ASSESSEE TO ASSIS T THE BENCH. WE ARE OF THE CONSIDERED VIEW THAT THE ADDITION HAS BE EN RESTRICTED BY THE LD. CIT (A) ON THE BASIS OF ORDER DATED 11.07.2014 PASS ED BY THE COMMISSIONER OF CENTRAL EXCISE WITHOUT RECORDING TH E FACT IF THE SAID ORDER DATED 11.07.2014 PASSED BY COMMISSIONER OF CE NTRAL EXCISE HAS ATTAINED FINALITY OR HAS FURTHER BEEN CHALLENGED BE FORE THE QUASI JUDICIAL AUTHORITY I.E CESTAT. SO ,IN THE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT ORDER PASSED BY THE LD. CIT (A ) IS REQUIRED TO BE SET ASIDE AND THE FILE IS REMANDED TO THE AO TO DECIDE AFRESH AFTER ASCERTAINING AS TO WHAT HAS HAPPENED BEFORE THE CES TAT BY PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CON SEQUENTLY, AFORESAID APPEALS FILED BY THE REVENUE ARE ALLOWED FOR STATIS TICAL PURPOSES ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF JULY, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 25 TH DAY OF JULY, 2019 TS ITA NO.5360 & 5361/DEL./2016 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-3, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.