Assistant Commissioner of Income-tax, V. SRJ Peety Steels Pvt. Ltd., Jalna

ITA 992/PUN/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1898 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-03-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 30-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Keywords: Value adopted by valuation officer
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO. 806 /PN/201 5 / ASSESSMENT YEAR : 20 11 - 12 SRJ PEETY STEELS PVT. LTD., D - 51/1, ADDL.MIDC AREA, JALNA 431203 . / APPELLANT PAN: AA ACT6742M VS. THE JT . COMMISSIONER OF INCOME TAX, RANGE 1, AURANGABAD . / RESPONDENT . / ITA NO. 890 /PN/201 5 / ASSESSMENT YEAR : 20 11 - 12 THE JT . COMMISSIONER OF INCOME TAX, RANGE 1, AURANGABAD . / APPELLANT VS. SRJ PEETY STEELS PVT. LTD., D - 51/1, ADDL.MIDC AREA, JALNA 431203 . / RESPONDENT PAN: AA ACT6742M . / ITA NO. 992 /PN/201 5 / ASSESSMENT YEAR : 20 1 2 - 1 3 THE ASST . COMMISSIONER OF INCOME TAX, CIRCLE 1, AURANGABAD . / APPELLANT VS. SRJ PEETY STEELS P VT. LTD., D - 51/1, ADDL.MIDC AREA, JALNA 431203 . / RESPONDENT PAN: AA ACT6742M ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 2 . / ITA NO. 100 2 /PN/201 5 / ASSESSMENT YEAR : 20 12 - 13 / ASSESSMENT YEAR : 20 12 - 13 SRJ PEETY STEELS PVT. LTD., D - 51/1, ADDL.MIDC AREA, JALNA 431203 . / APPELLANT PAN: AA ACT6742M VS. THE ASST . COMMISSIONER OF INCOME TAX, CIRCLE 1, AURANGABAD . / RESPONDENT CIRCLE 1, AURANGABAD . / RESPONDENT ASSESSEE BY : SHRI J.P. BAIRAGRA REVENUE BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 16 . 0 3 .201 6 / DATE OF PRONOUNCEMENT: 27 .0 4 .201 6 / ORDER / PER SUSHMA CHOWLA, J M : THE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE ARE AGAINST SEPARATE ORDER S OF CIT (A) - I , AURANGABAD , DATED 25 .0 3 .201 5 AND 29.04 .2015 , RELATING TO ASSESSMENT YEAR S 20 11 - 12 AND 2012 - 13 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . 2 . THIS BUNCH OF TWO CROSS APPEALS ARE FILED BY THE ASSESSEE AND THE REVENUE ARE AGAINST IDENTI CAL ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. IN ORDER TO ADJUDICATE THE ISSUE, WE SHALL MAKE A REFERENCE TO THE FACTS IN CROSS APPEALS I.E. ITA NO.806/PN/2015 AND 890/PN/2015 , RELATING TO ASSESSMENT YEAR 2011 - 12. 12. ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 3 3. THE ASSESSEE IN ITA NO. 806 /PN/201 5 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1 . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FURTHER ERRED IN CONFIRMING THE ALLEGED SUPPRESSION OF PRODUCTION OF 532.74 MT OF CHAR DOLA CHAR AND 1464.03 MT OF MS SPONGE IRON/ - . 2 . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION ON ACCOUNT OF PROFIT OF RS.53,15,893/ - AND RS.1,67,813/ - ON THE ALLEGED SUPPRESSION OF SALE OF MS SPONGE IRON A N D CHAR DOLA CHAR RESPECTI VELY . 3 . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING ADDITION OF RS.37,15,400/ - ON ACCOUNT OF DIFFERENCE BETWEEN VALUE OF DVO REPORT AND ACTUAL INVESTMENT IN CONSTRUCTION OF DIRECTOR RESIDENTIAL PROPERTY. 4 . WITHOUT PREJUDICE TO GROUND OF APPEAL NO.3, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE PROPORTIONATE DIFFERENCE BETWEEN VALUE OF DVO REPORT AND ACTUAL INVESTMENT IN CONSTRUCTION OF DIRECTOR'S RESIDENTIAL PROPERTY FOR A.Y 2011 - 12 AT RS.8,16,645/ - . 5 . THE A PPELLANT COMPANY CRAVES TO ADD TO, ALTER OR AMEND THE FOREGOING GROUNDS, WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER, AT THE TIME OF HEARING. 4 . THE REVENUE IN ITA NO. 890 /PN/201 5 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - I) ON THE FACTS & IN THE CIRCUM STANCES OF THE CASE, THE LD. CIT(A) , AURANGABAD HAS ERRED IN DELETING THE ADDITION OF RS. 1,73,03,734/ - MADE ON ACCOUNT OF SUPPRESSED PRODUCTION OF TMT BARS. II) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), AURANGABAD HAS ERRED IN REST RICTING THE ADDITION OF RS. 2,20,80,611/ - TO RS. 54,83,706/ - MADE ON ACCOUNT OF SUPPRESSED PRODUCTION OF SPONGE IRON. III) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), AURANGABAD HAS ERRED IN IGNORING THE FACT THAT THE UNACCOUNTED PR ODUCTION OF SPONGE IRON WAS USED TO MANUFACTURE MS BILLETS & THEREFORE THE ADDITION MADE IN RESPECT OF SUPPRESSED PRODUCTION OF MS BILLETS ALSO SHOULD HAVE BEEN UPHELD. IV) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), AURANGABAD HAS ERRED IN NOT FOLLOWING HIS OWN ORDERS IN THE OTHER CASES OF STEEL MANUFACTURERS FROM JALNA PASSED EARLIER WHEREIN HE HAD ESTIMATED THE PROFIT @ 4% OF THE ESTIMATED SALE VALUE OF SUPPRESSED PRODUCTION. V) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A), ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 4 AURANGABAD HAS ERRED IN RELYING UPON THE ORDER OF THE ITAT IN THE CASE OF SRJ PEETY STEELS PVT. LTD., JALNA FOR AYS 2007 - 08 & 20 08 - 09 DT. 16/01/2015 WHEREIN SUCH ADDITION HAS BEEN DELETED. VI) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A), AURANGABAD HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE COMPANY IS ENGAGED IN UNACCOUNTED PRODUCTION OF GOODS WHICH HAS BEEN SUBSTANTIATED DURING THE SEARCH ACTIONS BY THE DG CEI. VII) ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD.CIT(A), AURANGABAD BE QUASHED AND THAT THE ORDER OF THE AO BE RESTORED. VIII) THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EVIDENCE TO SUBSTANTIATE ITS CASE AS THE OCCASION MAY DEMAND. 5 . THE CASE OF THE ASSESSEE BEFORE US WAS THAT THE GROUNDS OF APPEAL TAKEN IN THE REVENUE APPEAL ARE IN RESPECT OF ADDITION MADE ON ACCOUNT OF SUPPRESSED PRODUCTION OF TMT BARS ON THE BASIS OF ELECTRICITY CONSUMPTION. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FAIRLY POINTED OU T THAT THESE GROUNDS ARE COVERED BY THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE ITSELF FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 IN ITA NOS. 123 & 124/PN/2012 AND ITA NOS.435 & 436/PN/2012 DECIDED BY THE TRIBUNAL ON 16.01.2015 AND IN ITA NO.1429/PN/2012 AND 1474/PN/2012, RELATING TO ASSESSMENT YEAR 2009 - 10 DECIDED ON 12.08.2015 . IN RESPECT OF GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THIS APPEAL AND GROUND OF APPEAL NO.2 RAISED BY THE REVENUE , THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POIN TED OUT THAT THE SAME WERE IN RESPECT OF SUPPRESSED PRODUCTION OF SPONGE IRON IN THE UNIT DHANLAKSHMI , WHICH IS ALSO RUN ON ELECTRICITY. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ASSESSING OFFICER BECAUSE OF WIDE FLUCTUAT ION IN CONSUMPTION OF ELECTRICITY HAD ESTIMATED EXTRA PRODUCTION OF SPONGE IRON AND B YE PRODUCT CHAR DOLA CHAR. THE CIT(A) HAD ALLOWED CERTAIN RELIEF, AGAINST WHICH BOTH THE ASSESSEE AND THE REVENUE ARE IN APPEAL. ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 5 6 . THE LEARNED DEPARTMENTAL REPRESENTATI VE FOR THE REVENUE ON THE OTHER HAND, PLACED RELIANCE ON THE ORDERS OF ASSESSING OFFICER / CIT(A). 7 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. FIRST, WE TAKE UP THE GROUND OF APPEAL FILED BY THE REVENUE WHICH IS AGAINST ADDITION MADE O N ACCOUNT OF SUPPRESSED PRODUCTION OF TMT BARS ON THE BASIS OF ELECTRICITY CONSUMPTION. WE FIND THAT IDENTICAL ISSUE AROSE BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 , WHEREIN THE TRIBUNAL DELETED THE ADDITION VIDE O RDER DATED 16.01.2015 . FURTHER, THE SAID ISSUE WAS FURTHER CONSIDERED IN ITA NO. 1429/PN/2012 AND 1474/PN/2012 , RELATING TO ASSESSMENT YEAR 2009 - 10. THE TRIBUNAL VIDE ORDER DATED 12.0 8 .2015 ELABORATELY NOTED THE CASE OF REVENUE OF EXTRAPOLATION OF SALES O N THE BASIS OF EVIDENCE FOUND FOR PART OF THE YEAR. THE ASSESSEE WAS ENGAGED IN THE PRODUCTION OF TMT BARS AND THE EXCISE AUTHORITIES HAD DETECTED CERTAIN SUPPRESSED PRODUCTION IN THE HANDS OF ASSESSEE, ON THE BA S IS OF WHICH PROCEEDINGS WERE INITIATED AGA INST THE ASSESSEE IN DIFFERENT ASSESSMENT YEARS. THE ASSESSING OFFICER ON THE BASIS OF INFORMATION RECEIVED FROM THE EXCISE AUTHORITIES HAD ESTIMATED THE SUPPRESSED PRODUCTION IN THE HANDS OF ASSESSEE . THE BASIS FOR MAKING ADDITION IN THE HANDS OF ASSESS EE WAS THE REPORT OF DR. N.K. BATRA, AS PER WHICH THE MANUFACTURE OF ONE MT INGOT REQUIRES 1026 UNITS OF ELECTRICITY. APPLYING THE SAID PRINCIPLE, THE ASSESSING OFFICER WORKED OUT THE PRODUCTION IN THE HANDS OF ASSESSEE IN THE RESPECTIVE YEARS, WHICH DID NOT MATCH WITH THE RESULTS SHOWN BY THE ASSESSEE AND CONSEQUENTLY, THE ASSESSING OFFICER MADE ADDITION IN THE HANDS OF ASSESSEE ON ACCOUNT OF SUPPRESSED PRODUCTION. ALL THESE MATTERS FOR THE RESPECTIVE YEARS TRAVELLED TO THE TRIBUNAL AND THE TRIBUNAL HELD NO MERIT IN THE SAID ADDITION MADE IN THE HANDS OF ASSESSEE ON THE BASIS OF ELECTRICITY ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 6 CONSUMPTION. ONLY IN CASES WHERE THERE WAS EVIDENCE FOUND BY THE EXCISE AUTHORITIES ON ACCOUNT OF ANY ADMISSION MADE BEFORE THE DGCEI / SETTLEMENT COMMISSION, THE ASS ESSING OFFICER WAS DIRECTED TO COMPUTE ADDITIONAL INCOME IN THE HANDS OF ASSESSEE ON THE BASIS OF SUCH ADDITION MADE BY THE EXCISE AUTHORIT IES , FOR WHICH SUITABLE DIRECTIONS WERE GIVEN TO THE ASSESSEE. FURTHER, IN ASSESSMENT YEAR 2009 - 10 AND IN THE YEAR U NDER APPEAL BEFORE US, THE REVENUE HAS FAILED TO POIN T OUT ANY DISCREPANCY FOUND BY THE EXCISE AUTHORITIES. THE ASSESSEE ALS O POINTED OUT THAT THERE WAS NO ADMISSION BY WAY OF ANY PETITION BEFORE THE SETTLEMENT COMMISSION OR ANY ACTION BY DGCEI . IN THE T OTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE FIND NO MERIT IN THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WHERE THE CIT(A) HAS DELETED THE ADDITION ON ACCOUNT OF SUPPRESSED PRODUCTION OF TMT BARS ON THE BASIS OF ELECTRICITY CONSUMPTION, BY FOLLOW ING THE ORDER OF TRIBUNAL IN EARLIER YEARS. FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE DELETION OF ADDITION OF RS. 1,73,03,734/ - MADE IN THE HANDS OF ASSESSEE ON ACCOUNT OF SUPPR ESSED PRODUCTION OF TMT BARS. THE GROUND S OF APPEAL RAISED BY THE REVENUE , EXCEPT GROUND OF APPEAL NO.2 ARE THUS, DISMISSED. 8 . NOW, COMING TO THE ISSUE RAISED BY THE ASSESSEE IN ITS APPEAL BY WAY OF GROUNDS OF APPEAL NO.1 AND 2 AND THE GROUND OF APPEAL NO.2 RAISED BY THE REVENUE AGAINST PARTIAL RELIEF GIVEN BY THE CIT( A) IN RESPECT OF SUPPRESSED PRODUCTION OF SPONGE IRON IN THE UNIT DHANLAKSHMI 9 . THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSEE WAS ALSO RUNNING A UNIT UNDER THE NAME DHANLAKSHMI , IN WHICH IT WAS ENGAGED IN THE PRODUCTION OF SPONGE IRON OUT O F IRON ORE AND COKE . T HE B YE PRODUCT TO THE SAID MANUFACTURING ACTIVITY WAS CHAR DOLA CHAR . THE ASSESSING OFFICER DURING ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 7 THE COURSE OF ASSESSMENT PROCEEDINGS NOTED THAT THERE WAS VARIATION IN THE CONSUMPTION OF ELECTRICITY AND CONSEQUENTLY, WORKED OUT TH E SUPPRESSED PRODUCTION OF SPONG E IRON AND CHAR DOLA CHAR OF 8268 MT AND 2206 MT, CONSEQUENTLY, THE ADDITION WAS MADE IN THE HANDS OF ASSESSEE ON ACCOUNT OF SUPPRESSED PRODUCTION AT RS. 2,20,80,611/ - . 10 . THE CIT(A) NOTED THE MONTHLY ACTIVITY CARRIED ON BY THE ASSESSEE FOR THE PRODUCTION OF SPONGE IRON AND ALSO TOOK NOTE OF MONTH - WISE PRODUCTION OF SPONGE IRON AND OTHER BYE PRODUCTS AS SUBMITTED BY THE ASSESSEE AND OBSERVED THAT MINIMUM CONSUMPTION OF ELECTRICITY UNITS / MT IN JULY, 2010 WHICH WAS 86.09 UNI TS AS AGAINST THE CONSUMPTION IN MONTHS OF NOVEMBER AND DECEMBER, 2010 WHICH WERE AT 241.49 AND 923.76 UNITS RESPECTIVELY. THE CASE OF THE ASSESSEE BEFORE THE CIT(A) WAS THAT IN THE MONTH OF NOVEMBER, THE PLANT WAS USED FOR 11 DAYS AND IN THE MONTH OF DEC EMBER, IT WAS RUN FOR THREE DAYS, BUT THE PLANT HAD TO BE KEPT IN RUNNING M ODE AND HA D TO BE KEPT HEATED WHICH RESULTED IN ABNORMAL CONSUMPTION OF ELECTRICITY VIS - - VIS THE PRODUCTION. THE CIT(A) REJECTED THE SAID CONTENTION OF ASSESSEE , H OWEVER, RE - COMPU TED UNDISCLOSED PRODUCTION AFTER CONSIDERING 172.18 ELECTRICITY UN ITS AS REQUIRED FOR MANUFACTURING ONE MT SPONGE IRON. CONSEQUENTLY, THE UNDISCLOSED PROFIT IN THE HANDS OF ASSESSEE WAS RE - WORKED AND THE ADDITION WAS RESTRICTED TO RS. 54,83,706/ - AND THE A SSESSEE GOT RELIEF OF RS.1,65,96,905/ - . THE CIT(A) FURTHER OBSERVED THAT THOUGH THE TRIBUNAL HAD DECIDED THE ISSUE THAT NO ADDITION COULD BE MADE ON THE BASIS OF AVERAGE ELECTRICITY UNITS REQUIRED FOR PRODUCTION OF STEEL BUT THE TRIBUNAL HAD NOT DECIDED T HE ISSUE BY CONSIDERING THE FACT OF MINIMUM CONSUMPTION OF ELECTRICITY IN SOME MONTHS , AND HENCE SOME ADDITION HAD TO BE MADE ON ACCOUNT OF CONSUMPTION OF ELECTRICITY, BECAUSE OF ABNORMAL VARIATION IN TH E ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 8 CONSUMPTION OF ELECTRICITY. THE CIT(A) UPHELD PART IAL ADDITION IN THE HANDS OF ASSESSEE. 1 1 . BOTH THE ASSESSEE AND THE REVENUE ARE IN APPEAL BEFORE US AGAINST THE ORDER OF CIT(A). THE CLAIM OF ASSESSEE BEFORE US IS THAT THE ISSUE OF ESTIMATION OF PRODUCTION IN THE HANDS OF ASSESSEE ON THE BASIS OF ERRAT IC CONSUMPTION OF ELECTRICITY IS SQUARELY COVERED BY THE ORDERS OF TRIBUNAL IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 , DATED 16.01.2015 AND RELATING TO ASSESSMENT YEAR 2009 - 10, DATED 12.08.2015. 1 2 . THE LEARNED AUTHORIZED REP RESENTATIVE FOR THE ASSESSEE STRESSED THAT THE SAID UNIT OF DHANLAKSHMI WAS BEING RUN BY THE ASSESSEE IN THE EARLIER YEARS ALSO AND NO ADDITION WAS MADE IN ANY OF THE YEARS, EXCEPT FOR THIS ASSESSMENT YEAR. HE FURTHER POINTED OUT THAT THE REASON FOR LOW P RODUCTION IN THE MONTHS OF NOVEMBER AND DECEMBER, 2010 WAS NON - AVAILABILITY OF IRON ORE WHICH WAS THE BASIC MATERIA L. HE FURTHER SUBMITTED THAT BECAUSE OF NON - AVAILABILITY OF REGULAR IRON ORE, THE ASSESSEE HAD CLOSE D THE UNIT IN ASSESSMENT YEAR 2015 - 16 . 1 3 . AFTER CONSIDERING THE RIVAL CONTENTIONS AND PERUSING THE RECORD, WE FIND THAT ADDITION IN THE HANDS OF ASSESSEE IN RESPECT OF MANUFACTURING UNIT IN DH ANLAKSHMI HAS BEEN MADE BY CONSIDER ING CONSUMPTION OF ELECTRICITY AND THE PRODUCTION THEREOF. ADMIT TEDLY, IN SOME OF THE MONTHS, CONSUMPTION OF ELECTRICITY WAS ON A LOWER SCALE AS COMPARED TO THE CONSUMPTION OF ELECTRICITY IN THE OTHER MONTHS AND THE ASSESSING OFFICER AND CIT(A) WERE OF THE VIEW THAT ERRATIC CONSUMPTION OF ELECTRICITY SHOWN BY THE ASSES SEE RESULTED IN SUPPRESSED PRODUCTION OF SPONGE IRON AND ALSO BYE PRODUCT CHAR DOLA CHAR . ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 9 THE ASSESSING OFFICER AND CIT(A) ADOPTED THE FORMULA TO WORK OUT THE SUPPRESSED PRODUCTION IN THE HANDS OF ASSESSEE ON THE BASIS OF CONSUMPTION OF ELECTRICITY. HOWE VER, WE FIND THAT THERE IS NO DATA AVAILABLE WITH EITHER OF THE AUTHORITIES BELOW TO COMPUTE THE SO CALLED SUPPRESSED PRODUCTION IN THE HANDS OF ASSESSEE ON THE BASIS OF ERRATIC CONSUMPTION OF ELECTRICITY. FIRST OF ALL, THE ASSESSEE IS RUNNING THIS UNIT F ROM 2006 AND TILL DATE, NO ADDITION HAS BEEN MADE IN THE HANDS OF ASSESSEE IN ANY OF THE EARLIER YEARS . O NLY ADDITION MADE IN THE HANDS OF ASSESSEE IS IN ASSESSMENT YEARS 2011 - 12 AND 2012 - 13 . SECONDLY, THE ASSESSEE ALSO FURNISHED AN EXPLANATION AS TO WHY THERE WAS ABNORMAL CONSUMPTION OF ELECTRICITY IN THE MONTHS OF NOVEMBER AND DECEMBER, 2010 ON THE GROUND THAT THERE WAS NON - AVAILABILITY OF BASIC RAW - MATERIAL IRON ORE. HOWEVER, THE PLANT HAD TO BE KEPT IN A RUNNING CONDITION AND HEATED AS THE EXPENDITUR E REQUIRED TO BE SPENT ON STARTING THE PLANT WAS MUCH HIGHER . W E FIND MERIT IN THE EXPLANATION O F THE ASSESSEE IN THIS REGARD. FURTHER, WE ALSO NOTE THAT IN THE GROUP OF CASES DECIDED BY US OF FURNACE COMPANIES WHICH WERE ENGAGED IN THE PRODUCTION OF TMT BARS, THE AUTHORITIES BELOW HAD MADE THE ADDITION ON CLANDESTINE REMOVAL OF GOODS WITHOUT PAYMENT OF EXCISE DUTY ON THE BASIS OF CONSUMPTION OF ELECTRICITY I.E. REPORT OF DR. BATRA AS TO HOW MUCH ELECTRIC UNITS WERE USE D FOR THE PRODUCTION OF TMT BARS. T HE TRIBUNAL HAD ELABORATELY CONSIDERED THE ISSUE IN THE HANDS OF ASSESSEE ITSELF VIDE DIFFERENT ORDERS AND THE FIRST DECISION WAS IN ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 AND FURTHER IN ASSESSMENT YEAR 2009 - 10 . THE ADDITION MADE IN THE HANDS OF ASSESSEE ON ACCOUNT OF SUPPRESSED PRODUCTION BECAUSE OF ERRATIC CONSUMPTION OF ELECTRICITY HAS BEEN DELETED BY THE TRIBUNAL. FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT THERE IS NO MERIT IN THE ADDITION MADE IN THE HANDS OF ASSESSEE IN RESPECT OF ITS DHANLA KSHMI UNIT FOR THE MANUFACTURE OF SPONGE IRON AND BYE PRODUCT CHAR DOLA CHAR. THE DECISION ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 10 OF TRIBUNAL IN ASSESSMENT YEAR 2009 - 10 , DATED 12.08.2015 IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE BEFORE US AND FOLLOWING THE SAME PARITY OF REASONING, WE HO LD THAT NO ADDITION HAS WARRANTED ON ACCOUNT OF SUPPRESSED PRODUCTION ON THE BASIS OF ERRATIC CONSUMPTION OF ELECTRICITY. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION IN THE HANDS OF ASSESSEE. THE GROUNDS OF APPEAL NO.1 AND 2 RAISE D BY THE ASSESSEE ARE THUS, ALLOWED AND GROUND OF APPEAL NO.2 RAISED BY THE REVENUE IS DISMISSED. 1 4 . THE GROUNDS OF APPEAL NO.3 AND 4 RAISED BY THE ASSESSEE ARE NOT PRESSED AND HENCE, THE SAME ARE DISMISSED AS NOT PRESSED. 1 5 . NOW, COMING TO THE APPEAL IN ASSESSMENT YEAR 2012 - 13 . 1 6 . THE GROUNDS OF APPEAL NO.1, 2, 4, 5 AND 6 ARE RAISED BY THE REVENUE AGAINST DELETION OF ADDITION OF SUPPRESSED PRODUCTION ON ACCOUNT OF VARIATION IN THE CONSUMPTION OF ELECTRICITY , WHICH ARE SQUARELY COVERED IN FAVOUR OF TH E ASSESSEE BY THE ORDER OF TRIBUNAL ON SIMILAR ISSUE IN THE EARLIER YEARS AND ALSO IN ASSESSMENT YEAR 2011 - 12 AND FOLLOWING THE SAME PARITY OF REASONING, WE DISMISS THE GROUNDS OF APPEAL NO.1, 2, 4, 5 AND 6 RAISED BY THE REVENUE . FURTHER, THE ASSESSEE BY WAY OF GROUNDS OF APPEAL NO.1 AND 2 AND THE REVENUE BY WAY OF GROUND OF APPEAL NO.3 HAS RAISED THE ISSUE WITH REGARD TO ADDITION OF SUPPRESSED PRODUCTION ON THE BASIS OF CONSUMPTION OF ELECTRICITY IN THE UNIT DHANLAKSHMI. FOLLOWIN G OUR DECISION IN THE PARAS HEREINABOVE IN RESPECT OF SAME ISSUE BEING RAISED IN ASSESSMENT YEAR 2011 - 12, WE ALLOW THE GROUNDS OF APPEAL NO.1 AND 2 RAISED BY THE ASSESSEE AND THE GROUND OF APPEAL NO.3 RAISED BY THE REVENUE IS DISMISSED. ITA NO. 806 /PN/201 5 ITA NO. 890 /PN/201 5 ITA NO. 992 /PN/201 5 ITA NO. 1002 /PN/2015 11 1 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IN ASSESSMENT YEAR 2011 - 12 IS PARTLY ALLOWED AND IN ASSESSMENT YEAR 2012 - 13 IS ALLOWED AND THE APPEALS OF REVENUE ARE DISMISSED. ORDER P RONOUNCED ON THIS THE 27 TH DAY OF APRIL , 201 6 . SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 27 TH APRIL , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELL ANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I , AURANGABAD ; 4. / THE PRL. CIT - I , AURANGABAD ; 5. , , / DR 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORD ER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE