ITO, Bangalore V. M/s Hi-Ttech Pneumatics & Heat Treaters Pvt. Ltd., Bangalore

ITA 927/BANG/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5661 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 11-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NOS. 927 & 928/BANG/2010 ASSESSMENT YEARS : 2003-04 & 2004-05 THE INCOME TAX OFFICER, WARD 11(2), BANGALORE. : APPELLANT VS. M/S. HI-TECH PNEUMATICS & HEAT TREATERS PVT. LTD., V-344, 7 TH MAIN, IIND STAGE, PEENYA INDUSTRIAL AREA, BANGALORE 560 058. : RESPONDENT APPELLANT BY : SMT. JACINTA ZIMIK VASHAI, ADDL. CIT (DR) RESPONDENT BY : SHRI V. SRIDHAR, C.A. O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THESE TWO APPEALS IN ITA NO.927 & 928/B/10 ARE FIL ED BY THE REVENUE AGGRIEVED BY THE COMMON ORDER OF THE LD. CI T(A) IN ITA NO.275, 276, 277 & 89/W-11(2)/A-I/07-08 DATED 11.03.2010 FO R THE ASSESSMENT YEARS 2003-04 AND 2004-05. 2. THE ASSESSEE HAS RAISED FOUR GROUNDS IN ITS APPE AL WHEREIN GROUND NO.1 & 4 ARE GENERAL IN NATURE AND DOES NOT SURVIVE FOR ADJUDICATION. IN THE REMAINING GROUNDS, THE CRUX OF THE ISSUE IS THAT TH E CIT(A) HAD ERRED IN DELETING THE ADDITIONS MADE ON ACCOUNT OF UNDER-VAL UATION OF EXCISABLE ITA NO.927 & 928/BANG/10 PAGE 2 OF 3 GOODS AND SUPPRESSION OF SALES RELYING ON THE ORDER OF CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL. 3. AT THE OUTSET, LD. AR SUBMITTED THAT ON THE IDE NTICAL ISSUE FOR THE EARLIER ASSESSMENT YEAR 2002-03 IN ITA NO.782/BANG/ 2010, THE TRIBUNAL HAD UPHELD THE COMMON ORDER OF CIT(A) WHICH IS THE PRESENT ORDER UNDER CHALLENGE BEFORE THE TRIBUNAL, IN FAVOUR OF THE APP ELLANT. LD. DR DID NOT CONTROVERT TO THE SUBMISSION OF THE LD. AR, HOWEVER RELIED ON THE ORDER OF LD. AO AND PRAYED THAT THE ORDER OF THE AO MAY BE U PHELD. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. WE FIND THAT THE ISSUES INVOLVED IN THESE APPEALS ARE IDENTICAL TO THAT OF ISSUES FOR THE A.Y. 2001-02 AND 2002-03. T HE LD. CIT(A) HAD PASSED A COMMON ORDER IN ITA NO.275/276/277 & 89 W- 11(2)/A-I/07-08 DATED 11.03.2010 WHICH IS REPRODUCED HEREINBELOW FO R REFERENCE: 2.2 THE ABOVE WAS GONE THROUGH. THE CUSTOMS EXC ISE AND SERVICE TAX APPELLATE TRIBUNAL IN CENTRAL EXCISE AP PEAL NO.165 TO 167 OF 2006 DATED: 25-11-2009 HAS DECIDED THE CA SE IN FAVOUR OF THE APPELLANT DISENTITLING THE INCOME-TAX DEPART MENT THE ROOT OF ADDITIONS MADE BY IT. IT HAS BEEN UPHELD THEREI N THAT UNLESS SPECIFIC INSTANCE IS BROUGHT TO SHOW THAT THE ASSES SEE HAS RECEIVED MORE SALE CONSIDERATION FROM THE CUSTOMERS THAN SHO WN IN THE INVOICE, IT CANNOT BE PRESUMED THAT THERE IS CONCEA LMENT THROUGH SALES SUPPRESSION OR UNDERVALUATION OF STOCK. SINC E THE ROOT HAS BEEN UPROOTED, I HAVE NO HESITATION TO DELETE THE A DDITIONS. GROUNDS OF APPEAL ARE ALLOWED. FURTHER, THE TRIBUNAL UPHELD THE ORDER OF THE LD. C IT(A) FOR THE A.Y. 2002-03 IN ITA NO.782/B/2010, THE RELEVANT PORTION IS REPRO DUCED HEREINBELOW: 6.1 AT THE OUT-SET, WE WOULD LIKE TO POINT OUT THA T ON THE BASIS OF INFORMATION TO THE EFFECT THAT THE ASSESSEE HAD INDULGED IN EVASION OF DUTY ETC., FROM THE CENTRAL EXCISE DEPAR TMENT; THE AO HAD DETERMINED THE ADDITION AS RECORDED IN HIS IMPU GNED ORDER ITA NO.927 & 928/BANG/10 PAGE 3 OF 3 UNDER CONSIDERATION. HOWEVER, THE HONBLE CESTAT, IN ITS FINDINGS CITED SUPRA, HAD EMPHATICALLY RULED THAT THE ALLEGATION OF UNDER-VALUATION SHOULD FAIL AND NO DEMAND ON THA T BASIS CAN BE SUSTAINED. THUS, THE INFORMATION ALLEGED EVASION OF DUTY BY RESORTING TO UNDER-VALUATION OF EXCISABLE G OODS MANUFACTURED ETC., HAS BEEN STRUCK DOWN BY THE HONBLE TRIBUNAL CITED SUPRA ON THE BASIS OF WHICH ADDITION MADE BY THE AO, AS RIGHTLY HIGHLIGHTED BY THE LD. CIT(A) IN HIS IMPUGN ED ORDER UNDER DISPUTE, IN OUR CONSIDERED VIEW, DOESNT STAN D THE TESTIMONY OF LAW. WE, ARE, THEREFORE, OF THE FIRM VIEW THAT THE STAND OF THE LD. CIT(A) DOESNT REQUIRE ANY INTERFE RENCE AT THIS STAGE. IT IS ORDERED ACCORDINGLY. 5. SINCE THE FACTS AND ISSUES INVOLVED ARE IDENTICA L IN ALL THESE CASES, WE ARE BOUND TO FOLLOW THE ORDER PASSED BY THE TRIB UNAL IN ITA NO.782/BANG/2010 AND THEREBY UPHOLD THE ORDER OF CI T (A) IN FAVOUR OF THE APPELLANT IN THESE CASES ALSO. IT IS ORDERED ACCO RDINGLY. 6. IN THE RESULT, THE REVENUES APPEALS ARE DISMISS ED. PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF APRIL, 2011. SD/- SD/- ( GEORGE GEORGE K. ) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 8 TH APRIL, 2011. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. C IT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.