Appeal Details
Counselvise Citation
[2015] 124 COUNSELVISE.COM (IT) 3343 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
2 month(s) 10 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
15-07-2015
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Assessment Year
misc
Appeal Filed On
05-05-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , . . , BEFORE MS. SUSHMA CHOWLA , JM AND SHRI R.K. PANDA , AM M.A . NO.17/PN/2015 ARISING OUT OF ITA NOS.123 & 124/PN/2012 ASSESSMENT YEARS: 2007 - 08 & 2008 - 09 THE ADDL. COMMISSIONER OF INCOME TAX, RANGE - 1, AURANGABAD APPLICANT VS. SRJ PEETY STEELS PVT. LTD., D - 51/1, ADDL. MIDC AREA, JALNA 43 1203 RESPONDENT PAN: AAACT6742M & ARISING OUT OF ITA NOS.435 & 436/PN/2012 ASSESSMENT YEARS: 2007 - 08 & 2008 - 09 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 1, AURANGABAD APPLICANT VS. SRJ PEETY STEELS PVT. LTD., D - 51/1, ADDL. MIDC AREA, JALNA 431203 RESPONDENT PAN: AAACT6742M / APPLICANT BY : SHRI SUNIL GANOO (SPECIAL COUNSEL TO DEPTT.) / RESPONDENT BY : SHRI J.P. BAIRAGRA / DATE OF HEARING : 19 .0 6 .2015 / DATE OF PRONOUNCEMENT: 15 .0 7 .2015 2 M A NO. 17 /PN/201 5 / ORDER PER SUSHMA CHOWLA, JM : THE CAPTIONED MISCELLANEOUS APPLICATION RELATING TO ASSESSMENT YEARS 2007 - 08 & 2008 - 09 HAS BEEN FILED BY THE DEPARTMENT AGAINST THE ORDER OF TRIBUNAL DATED 16.01.2015 UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 , WHICH READS AS UNDER : - MISCELLANEOUS APPLICATION NO.17/PN/2015 THIS MISCELLANEOUS APPLICATION IS FILED BY THE I.T. DEPARTMENT WHO IS THE RESPONDENT IN ITA NOS.123 & 124/PN/2012 AND APPELLANT IN ITA NOS. 435 & 436/PN/2012 HEREINABOVE REFERRED. THE HON. MEMBERS WERE PLEASED TO ALLOW THE APPEALS OF THE APPELLANT ASSESSEE BEARING NOS.123 & 124/PN/2012 AND WERE PLEASED TO DISMISS THE APPEALS OF THE DEPARTMENT IN ITA NOS.435 & 436/PN/2012 VIDE ORDER DT.16/01/20 15 FOR THE REASONS AS FULLY SET OUT IN THE IMPUGNED ORDER. WITH DUE RESPECT TO THE HON. MEMBERS, THE RESPONDENT REVENUE MOST RESPECTFULLY SUBMITS THAT THE SAID ORDER PASSED BY THE HON. BENCH SUFFERS RESPECTFULLY SUBMITS THAT THE SAID ORDER PASSED BY THE HON. BENCH SUFFERS FROM FOLLOWING SERIOUS MISTAKES OF FACTS AND LAW WHICH AR E APPARENT FROM THE RECORDS, AND HAVE CAUSED SERIOUS PREJUDICE AND INJUSTICE TO THE RESPONDENT REVENUE: ERRONEOUS ASSUMPTION OF MATERIAL FACTS THE RESPONDENT REVENUE SUBMITS THAT ITS SPECIAL COUNSEL MR. SUNIL GANOO, UPON CONCLUSION OF THE HEARING OF THE MA TTERS, WITH THE PERMISSION OF THE HON. BENCH HAS FILED NOTES OF ARGUMENTS ON 05/11/2014 AND THE HON. MEMBERS HAVE TAKEN NOTE OF THE SAME VIDE PARA NO.13 ON PAGE NO.24 OF THE IMPUGNED ORDER. DURING THE COURSE OF HEARING, THE RESPONDENT REVENUE FILED ON 27 / 10/2014 THE COPIES OF DECISIONS ON WHICH THE RESPONDENT REVENUE WANTED TO PLACE RELIANCE AND ALSO FILED COPIES OF CERTAIN DECISIONS AS PER THE DIRECTIONS OF THE HON. BENCH. ON PAGE NO.1 OF NOTES OF ARGUMENTS, THE RESPONDENT REVENUE HAS FRAMED THE FOLLOWING ISSUES: ISSUE NO.1 WHETHER THERE WAS ANY EVIDENCE / MATERIAL [OTHER THAN ERRATIC CONSUMPTION OF ELECTRICITY UNITS] IN POSSESSION OF LEARNED ASSESSING OFFICER / C.I.T.[A] TO HOLD THAT THE APPELLANT ASSESSEE HAS SUPPRESSED ITS SALES / PRODUCTION? 3 M A NO. 17 /PN/201 5 VIDE PAGE NOS. 1 TO 5 [PARA NOS. 1 TO 16] OF NOTES OF ARGUMENTS ALL THE MATERIAL FACTS PERTAINING TO THE AFORESAID ISSUE TOGETHER WITH THE LEGAL ARGUMENTS WERE SUBMITTED. THE HON. BENCH VIDE PARA NO.11 ON PAGE NO.16 TO PARA NO.11.1 ON PAGE NO.18 OF THE IMPUGNED ORDE R WAS PLEASED TO REPRODUCE BASIC MAIN FACTUAL POINTS ARGUED AND BROUGHT TO THE NOTICE OF THE HON. BENCH BY THE RESPONDENT REVENUE. IN ORDER TO AVOID THE REPETITION, THE SAME ARE NOT REPRODUCED HEREIN AND THE RESPONDENT REVENUE MAY PLEASE BE PERMITTED TO RE FER THE SAME AT THE TIME OF HEARING OF THIS PETITION. SUFFICE IT TO MENTION THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE LEARNED ASSESSING OFFICER VIDE PAGE NO. 6 PARA NO. 3.1 OF HIS REASSESSMENT ORDER FOR THE A.Y.2007 - 08 HAS OBSERVED ABOUT THE CO NFESSIONAL STATEMENT DT.12/01/2007 GIVEN BY SHRI SURENDRA S. PEETY, MANAGING DIRECTOR OF THE ASSESSEE COMPANY BEFORE THE DGCEI ABOUT REMOVAL AND SALE OF AROUND 275 MT OF INGOTS CLANDESTINELY TO SHREE OM ROLLING MILLS WITHOUT PAYMENT OF EXCISE DUTY AND HAD RECEIVED THE CASH AGAINST THE SAID SALES. IT IS FURTHER PERTINENT TO NOTE THAT DURING REASSESSMENT PROCEEDINGS, IN THEIR JOINT WRITTEN SUBMISSIONS DT.13/12/2010 FIL ED BEFORE THE LEARNED ASSESSING OFFICER BY THE ASSESSEE COMPANY AND SHREE OM ROLLING MILLS PVT . LTD, [WHICH ARE SISTER CONCERNS] THE ASSESSEE COMPANY OFFERED INCOME OF RS.6,72,62 0.00 [RS.L,43,270.00 BEING G.P. @ 3% ON SUPPRESSED SALES OF RS.47,75,600.00 PLUS RS.5,29,350.00 FOR PEAK PURCHASES] ON ACCOUNT OF THE RS.47,75,600.00 PLUS RS.5,29,350.00 FOR PEAK PURCHASES] ON ACCOUNT OF THE IMPUGNED SUPPRESSED SALES AS PER CO MPUTATION SHEET REGARDING ADDITIONAL INCOME. SIMILARLY SHREE OM ROLLING MILLS PVT . LTD OFFERED PROFIT OF RS.1,08,920.00 ON THE IMPUGNED SUPPRESSED SALES. THUS THE FACT OF SUPPRESSION OF SALES HAS BEEN ADMITTED BY THE ASSESSEE COMPANY BEFORE THE LEARNED ASS ESSING OFFICER. THE LEARNED ASSESSING OFFICER BY PLACING RELIANCE ON THE AFORESAID WRITTEN SUBMISSIONS DT.13/12/2010 FILED BEFORE HIM BY THE ASSESSEE COMPANY HAS VIDE PARA 1.4 ON PAGE 2 OF THE IMPUGNED ASSESSMENT ORDER FOR THE A Y 2007 - 08 OBSERVED THAT THE ASSESSEE COMPANY HAS OFFERED PROFIT OF RS.6,72,620.00 ON ACCOUNT OF ADMISSION OF SUPPRESSED PRODUCTION. THE SAID ADMISSION OF SUPPRESSION OF SALES AND UNACCOUNTED PURCHASES WAS NEVER RETRACTED BY THE APPELLANT ASSESSEE. THIS FACT IS ALSO ADMITTED BY THE A SSESSEE COMPANY IN PARA NO.1 OF STATEMENT OF FACTS FILED ALONG WITH FORM NO.35 FILED BEFORE THE LEARNED C.I.T.[A] IN VIEW OF THE AFORESAID UNCONTROVERTED FACTS, THERE WAS EVIDENCE IN POSSESSION OF THE LEARNED ASSESSING OFFICER ABOUT THE REMOVAL OF MATERIAL IN CLANDESTINE MANNER BY THE APPELLANT ASSESSEE AMOUNTING TO SUPPRESSIONS OF SALES. ON THIS FACTUAL BACKDROP, IT WAS ARGUED BY THE RESPONDENT REVENUE THAT IT DID NOT LIE IN THE MOUTH OF THE APPELLANT ASSESSEE THAT THERE WAS NOT AN IOTA OF EVIDENCE IN POSS ESSION OF THE RESPONDENT DEPARTMENT EVIDENCING SUPPRESSION OF SALES ON THE PART OF THE APPELLANT ASSESSEE. 4 M A NO. 17 /PN/201 5 THE ASSESSEE COMPANY APPROACHED THE HON. CUSTOMS & CENTRAL EXCISE SETTLEMENT COMMISSION ADDITIONAL BENCH MUMBAI FOR WAIVER OF PENALTY AND IMMUNITY FR OM PROSECUTION FOR EVADING THE EXCISE DUTY ON REMOVAL AND SALE OF GOODS IN CLANDESTINE MANNER AS WAS DETECTED BY THE CENTRAL EXCISE DEPARTMENT. THE HON. SETTLEMENT COMMISSION VIDE FIRST PARA ON PAGE NO.7 OF ITS ORDER [PLEASE REFER PAGE NO.218 OF PAPER BOOK NO. 1 FILED BY THE ASSESSEE COMPANY] HAS OBSERVED THAT HOWEVER, THE BENCH CANNOT IGNORE THE FACT THAT THERE WAS A CONCERTED EFFORT TO EVADE THE DUTIES. THE APPLICANTS ALL SEEM TO BE PART OF A WIDESPREAD GROUP INDIVIDUALLY AND COLLECTIVELY INVOLVED IN THE A FORESAID ACTIVITY TO EVADE THE TAXES. THEREFORE IN SPITE OF READINESS TO PAY UP THE FULL DUTIES AND THEIR COOPERATION BEFORE THE COMMISSION, THE COMMISSION IS OF THE VIEW THE PENALTIES CANNOT BE WAIVED IN FULL THOUGH MITIGATING CIRCUMSTANCES EXIST FOR PART IAL IMMUNITIES. THIS FINDING OF THE HON. COMMISSION HAS NOT BEEN CHALLENGED BY THE ASSESSEE COMPANY BEFORE SUPERIOR FORUM. EVEN BEFORE THIS HON. BENCH THE ASSESSEE COMPANY HAS NOT STATED THAT THE SAID FINDING IS ERRONEOUS. IN THE CIRCUMSTANCES, THE AFORESA ID FINDING OF THE HON. SETTLEMENT COMMISSION IS A RELEVANT FACT WHICH HAS BEEN RIGHTLY TAKEN NOTE OF BY THE LEARNED ASSESSING OFFICER AS WELL AS THE LEARNED C.I.T.[A] HOWEVER THE HON. BENCH INSTEAD OF DISPASSIONATELY ANALYZING ALL THE AFORESAID EVIDENCES H AS MISTAKENLY OVERLOOKED THE SAME BY PLACING RELIANCE ON THE THIRD MEMBER DECISION OF CESTAT IN THE CASE OF THE APPELLANT WHICH HAS NOT AT ALL CONSIDERED THE ABOVE CLINCHING EVIDENCES AS THE SAME WERE NOT IN ISSUE / GROUND BEFORE IT. IN FACT THE HON. THIRD MEMBER HAD CLARIFIED THE SCOPE OF CONTROVERSY INVOLVED IN THE MATTER AS UNDER: THE HON. THIRD MEMBER VIDE PAGE NO.13 OF HIS ORDER [REFER PAGE NO.19 OF PAPER BOOK NO.6 FILED BY THE ASSESSEE COMPANY] HAS REPRODUCED PARA 19 FROM THE ORDER OF THE HON. COMMISS IONER CENTRAL EXCISE AS UNDER: 19 THERE ARE OTHER INSTANCES OF CENTRAL EXCISE VIOLATIONS DETECTED BY OTHER AGENCIES WHERE THE ASSESSEE WAS FOUND TO BE INVOLVED. IN ONE INSTANCE THE ASSESSEE HAS APPROACHED SETTLEMENT COMMISSION, ADMITTED THE EVASION OFFENCE OF AN IDENTICAL NATURE AND HAD OBTAINED IMMUNITY FROM CRIMINAL PROCEEDINGS. THE ASSESSEE HAS HOWEVER ARGUED THAT EACH CASE HAS TO BE TREATED AS A SEPARATE CASE BASED ON ITS OWN MERITS AND DEALT WITH ACCORDINGLY. THE ARGUMENT OF THE ASSESSEE IS ACCEPTED. N O RELIANCE HAS BEEN PLACED ON EVIDENCE RELIED UPON IN CENTRAL EXCISE PROCEEDINGS. THE FINDINGS IN THIS CASE ARE BASED ONLY ON MATERIAL AND EVIDENCES THAT HAVE BEEN BROUGHT ON RECORD IN THE INSTANT CASE. THE HON. THIRD MEMBER HAS FURTHER OBSERVED AS I AM TH EREFORE OF THE OPINION THAT RELIANCE PLACED BY THE REVENUE ON THE EVIDENCE IN EARLIER CASES WHICH ARE ALREADY SETTLED, IS TOTALLY MISPLACED, WHEN THESE FINDINGS OF COMMISSIONER ARE NOT EVEN CHALLENGED BY REVENUE. THUS IT IS CRYSTAL CLEAR THAT THE HON. THIR D MEMBER HAS NOT CONSIDERED THE EVIDENCE ABOUT THE CLANDESTINE REMOVAL OF MATERIAL AND THE DUTY LEVIED ON THE SAME WHICH ISSUE WAS SETTLED BY THE HON. SETTLEMENT COMMISSION. FROM THE ABOVE OBSERVATION IT IS CRYSTAL CLEAR THAT THE HON. THIRD MEMBER HAD PROC EEDED ONLY ON THE HYPOTHETICAL EVIDENCE OF ELECTRICITY CONSUMPTION. IN THE CIRCUMSTANCES AFORESAID, FOLLOWING THE DECISION IN THE CASE OF R.A. 5 M A NO. 17 /PN/201 5 CASTINGS THE ALLEGED SUPPRESSED SALES ESTIMATED SOLELY ON ELECTRICITY CONSUMPTION WAS DELETED. IN THE PRESENT APP EALS BOTH THE LOWER AUTHORITIES HAVE CONSIDERED THE CONFESSIONAL ADMISSIONS OF THE ASSESSEE COMPANY BEFORE THE LEARNED ASSESSING OFFICER AS WELL AS THE CENTRAL EXCISE AUTHORITIES AND ALSO THE FACT THAT THE ASSESSEE COMPANY HAS OFFERED INCOME ON ALLEGED SUP PRESSED SALES AND ALLEGED UNACCOUNTED PURCHASES. THE CONFESSIONAL STATEMENTS OF THE APPELLANT ASSESSEE HAVE NOT BEEN WITHDRAWN AND ARE STILL IN FORCE. IN VIEW OF THE AFORESAID FACTS, THE CONCLUSION DRAWN BY THE HON. BENCH VIDE PARA NO.21 ON PAGE 41 OF THE IMPUGNED ORDER THAT MOREOVER, AS OBSERVED ABOVE THE ADJUDICATION ORDER PASSED BY THE CCE, AURANGABAD HAS BEEN CANCELLED BY THE CESTAT, MUMBAI BY MAJORITY OPINION AND HENCE, FOUNDATION OF ASSESSMENTS FOR A.Y. 2007 - 08 & 2008 - 09 DO NOT EXIST IS AN OUTCOME OF ERRONEOUS ASSUMPTION OF FACTS RESULTING IN TO MISTAKE OF LAW AND THUS CONSTITUTES MISTAKE APPARENT FROM RECORDS, WHICH HAS CAUSED SERIOUS PREJUDICE AND INJUSTICE TO THE RESPONDENT REVENUE AND HENCE THE SAME IS REQUESTED TO BE CORRECTED BY PASSING THE NECES SARY RECTIFICATION ORDER. THE RESPONDENT REVENUE FURTHER RESPECTFULLY SUBMITS THAT AS A CONSEQUENCE OF THIS MISTAKE THE HON. BENCH HAS FURTHER COMMITTED CERTAIN GLARING MISTAKES OF FACTS AND LAW AS HEREINAFTER MENTIONED WHICH NEED TO BE CORRECTED: MISTAKE N CONCLUSION THAT THE LEARNED ASSESSING OFFICER HAS MISTAKE N CONCLUSION THAT THE LEARNED ASSESSING OFFICER HAS COMPUTED THE SUPPRESSED TURNOVER ONLY ON THE BASIS OF CONSUMPTION OF ELECTRICITY AND FAILURE TO CONSIDER THE EFFECT OF ADMISSION OF THE APPELLANT ABOUT THE SUPPRESSION OF SALES IN THE IMPUGNED ORDER VIDE PARA NO.21 ON PAGE NO.41, THE HON. BENCH HAS DRAWN A CONCLUSION THAT NO INDEPENDENT ENQUIRY HAS BEEN CONDUCTED BY THE REVENUE BUT THE ENTIRE ASSESSMENTS ARE FRAMED ON THE BASIS OF THE INFORMATION RECEIVED FROM THE CENTRAL EXCISE DEPARTMENT AS WELL AS THE ADJUDICATION ORDER PASSED BY THE LEARNED COMMISSIONER OF CENTRAL EXCISE, AURANGABAD. THE RESPONDENT REVENUE MOST RESPECTFULLY SUBMITS THAT THE AFORESAID CONCLUSION DRAWN BY THE HON. BENCH IS AN OUTCOME OF MISTAKEN BELIEF OF FACTS AND LAW FOR THE REASONS HE REINAFTER MENTIONED. IN THE PRESENT APPEALS BOTH THE LOWER AUTHORITIES HAVE CONSIDERED THE CONFESSIONAL ADMISSIONS OF THE ASSESSEE COMPANY BEFORE THE LEARNED ASSESSING OFFICER AS WELL AS THE CENTRAL EXCISE AUTHORITIES AND ALSO THE FACT THAT THE ASSESSEE CO MPANY HAS OFFERED INCOME ON ALLEGED SUPPRESSED SALES. IT IS RESPECTFULLY SUBMITTED THAT THE HON. BENCH HAS NOT CONSIDERED THE RATIO OF FOLLOWING DECISIONS ABOUT THE LAW OF ADMISSION OF THE ASSESSEE REGARDING THE SUPPRESSION OF SALES: I . PULLANGODE RUBBER PROD UCE CO LTD V / S STATE OF KERALA AND ANOTHER REPORTED IN 91 I.T.R. PAGE 18 [SC] 6 M A NO. 17 /PN/201 5 II . BASANT SINGH V/ S JANKI SINGH REPORTED IN 1967 AIR 0341 SC III . MAK DATA P LTD V/ S C.I.T. REPORTED IN 358 I.T.R PAGE 593 [SC] IT IS RESPECTFULLY SUBMITTED THAT THE HON. SUPREME COU RT IN THE CASE OF A.C.I.T. V/S SURASHTRA KUTCH STOCK EXCHANGE LTD REPORTED IN 305 I.T.R. PAGE 227 HAS HELD THAT FAILURE TO CONSIDER THE DECISION OF THE SUPREME COURT OR THE JURISDICTIONAL HIGH COURT CONSTITUTES MISTAKE OF LAW APPARENT FROM RECORDS AND HAS TO BE RECTIFIED BY THE ITAT BY INVOKING POWERS U/S 254[2] OF THE I.T. ACT, 1961. ERRONEOUS INTERPRETATION OF E DECISION OF THE HON. SUPREME COURT IN THE CASE OF R.A. CASTINGS THE RESPONDENT REVENUE VIDE PAGE NO.9 OF ITS NOTES OF ARGUMENTS FILED ON 05/11/20 14 HAS FRAMED AN ISSUE AS UNDER: WHETHER THE RATIO OF THE DECISION OF HON. CESTAT, PRINCIPAL BENCH NEW DELHI IN THE CASE OF R.A.CASTINGS PVT LTD. REPORTED IN 2009[237] E.L.T.674 [TRI - DEL] AS AFFIRMED BY THE HON. ALLAHABAD HIGH COURT AGAINST WHICH SLP OF TH E DEPARTMENT STANDS DISMISSED IS APPLICABLE TO THE FACTS OF THE PRESENT CASE? [COPIES ENCLOSED IN PAPER BOOK NO.3 FILED BY THE ASSESSEE COMPANY AT PAGE NOS. 47 TO 66] THE RESPONDENT ASSESSEE VIDE PAGE NOS.9 TO 12 OF NOTES OF ARGUMENTS HAS EXPLAINED WITH CO GENT WELL SETTLED LEGAL PROPOSITIONS BY VARIOUS SUPREME COURT AND HIGH COURT DECISIONS. IN ORDER TO AVOID REPETITION, IT IS HUMBLY REQUESTED THAT SAME MAY PLEASE BE TREATED AS PART OF THIS PETITION AND THE RESPONDENT REVENUE MAY PLEASE BE PERMITTED TO REFE R THE SAME DURING THE HEARING OF THE PRESENT PETITION. THE RESPONDENT REVENUE MOST RESPECTFULLY SUBMITS THAT IN VIEW OF THE WELL SETTLED LEGAL PRINCIPLES OF INTERPRETATION OF THE JUDGMENT, THE RATIO IN THE CASE OF DECISION OF R.A. CASTINGS IS SQUARELY INAP PLICABLE TO THE CASE OF THE APPELLANT BECAUSE IN THAT CASE THERE WAS NOT AN IOTA OF EVIDENCE ABOUT THE SUPPRESSION OF PRODUCTION AND THE ALLEGED SUPPRESSION WAS CALCULATED SOLELY ON THE BASIS OF ELECTRICAL CONSUMPTION AND THAT TOO ON THEORETICAL BASIS. HOW EVER IN THE CASE OF THE APPELLANT THERE IS A CLINCHING EVIDENCE OF SUPPRESSION OF PRODUCTION BY THE APPELLANT ASSESSEE. IT IS A WELL SETTLED LAW THAT IF THERE IS AN ADMISSION OF SUPPRESSION OF TURNOVER, THE CONSUMPTION OF ELECTRICITY CAN FOR THE BASIS OF C ALCULATION OF SUPPRESSION. PLEASE REFER DECISION OF HON. SUPREME COURT IN THE CASE OF TRIVENI RUBBER AND PLASTICS V/S COLLECTOR OF CENTRAL EXCISE COCHIN REPORTED IN 2002 - TIOL - 547 SC - CX. ERRONEOUS INTERPRETATION OF THE DECISION OF THE HON. BENCH IN ASSESSE' S OWN CASE REPORTED IN 137 TTJ 627 [PUNE] WITH DUE RESPECT TO THE HON. MEMBERS, IT IS RESPECTFULLY SUBMITTED THAT THE CONCLUSIONS DRAWN BY THE HON. MEMBERS VIDE PARA NO.24 ON PAGE 47 OF THE IMPUGNED ORDER THAT IT IS ALSO TO BE TA KEN NOTE OF THE FACT THAT I N A. Y.2007 - 08 AND 2008 - 09 NO INVESTIGATION HAS BEEN DONE BY THE REVENUE WHICH ARE IMMEDIATE NEXT ASSESSMENT YEARS AFTER THE SEARCH AND SEIZURE OPERATION AGAINST THE ASSESSMENT COMPANY AND HENCE, IN OUR OPINION ABOVE FINDINGS 7 M A NO. 17 /PN/201 5 AND OBSERVATION OF THE TRIBUNAL AS WELL AS THE HON. HIGH COURT ARE ALSO IMPORTANT TO DECIDED THE PRESENT APPEALS MORE PARTICULARLY ON THE ADDITIONS, BASED ON CONSUMPTION OF ELECTRICITY ARE ERRONEOUS AND BEING CONTRARY TO THE FACTS AS HEREINABOVE MENTIONED THE SAME ARE LEGALLY UNSUSTAINA BLE. THE RESPONDENT REVENUE MOST RESPECTFULLY SUBMITS THAT THE SCOPE OF SECTION 153 A OF THE I.T. ACT 1961 HAS BEEN LUCIDLY EXPLAINED BY THE HON. BOMBAY HIGH COURT NAGPUR BENCH IN I.T. APPEAL NO.36 OF 2009 DECIDED ON 29/10/2010. IN THE PRESENT CASE DURING THE REASSESSMENT PROCEEDINGS THE LEARNED ASSESSING OFFICER DIRECTED THE APPELLANT ASSESSEE TO EXPLAIN THE DRASTIC VARIATION IN CONSUMPTION OF ELECTRICITY. BUT THE APPELLANT ASSESSEE DID NOT OFFER ANY EXPLANATION. IN FACT FOR SUBSEQUENT YEARS WHEN THE ASSE SSEE REALIZED THAT THE DEPARTMENT WAS ON RIGHT TRACK OF DETECTING THE SUPPRESSION THE ASSESSEE BECAME WISE AND THE CONSUMPTION OF ELECTRICITY FOR SUBSEQUENT YEARS HAS GONE DOWN AND HAS SETTLED TO 1026 UNITS AS PER THEORETICAL FORMULA. THIS IS QUITE EVIDENT FROM THE VARIOUS SUBMISSIONS MADE BY THE APPELLANT ASSESSEE. PLEASE REFER TO PAGE NOS.207 TO 211 OF PAPER BOOK NO.1 SUBMITTED BY THE APPELLANT ASSESSEE. IN THE CIRCUMSTANCES TO SAY THAT THE RESPONDENT REVENUE HAS NOT CONDUCTED ANY INVESTIGATION IS INCORRE CT. IN THE CIRCUMSTANCES THE HON. BENCH BY MISCONSTRUING THE FACTS HAS DRAWN ERRONEOUS CONCLUSIONS WHICH CONSTITUTE MISTAKE OF FACT APPARENT FROM RECORDS AND HENCE THE SAME NEEDS TO BE CORRECTED. ABOUT OTHER VARIOUS LEGAL ISSUES WHICH THE HON. BENCH ABOUT OTHER VARIOUS LEGAL ISSUES WHICH THE HON. BENCH HAS REFRAINED FROM DEALING DUE TO ERRONEOUS ASSUMPTION OF FACTS AS STATED HEREINABOVE IN VIEW OF THE ERRONEOUS ASSUMPTION OF FACTS AS STATED HEREINABOVE THE HON. BENCH HAS REFRAINED FROM VARIOUS LEGAL ISSUES RAISED AND AS MENTIONED IN NOTES OF ARGUMENTS FILED ON 05/11/2014. ON RECTIFICATION OF AFORESAID ERRORS, AS CONSEQUENCE THEREOF IT IS HUMBLY REQUESTED THAT ALL THE RELEVANT LEGAL ISSUES RAISED ON EARLIER OCCASION WHICH WERE NOT ADJUDICATED BY THE HON. BENCH SHALL STAND REVIVED AND THEREFORE THE SAME MAY PL EASE BE ADJUDICATED. ABOUT MAINTAINABILITY OF THE PRESENT PETITION THE RESPONDENT REVENUE MOST RESPECTFULLY SUBMITS THAT THIS PETITION IS FILED WITHIN THE PRESCRIBED PERIOD OF LIMITATION. THE RESPONDENT REVENUE HAS DEMONSTRATED THE MISTAKES OF FACTS AND LA W AS ARE APPARENT FROM RECORDS AND HENCE THE SAME ARE REQUIRED TO BE CORRECTED. IN THE CIRCUMSTANCES, THE PRESENT PETITION IS MAINTAINABLE AND THE HON. BENCH HAS JURISDICTION AND AUTHORITY TO HEAR AND DECIDE THE SAME AS PER THE PROVISION OF LAW. THE RESPON DENT REVENUE THEREFORE MOST RESPECTFULLY REQUEST THE HON'BLE BENCH TO PLEASE ALLOW THE PRESENT PETITION & PASS THE NECESSARY RECTIFICATION ORDER AND CONSEQUENTIAL ORDER, FOR WHICH ACT OF KINDNESS, THE RESPONDENT REVENUE SHALL ALWAYS REMAIN OBLIGED. 8 M A NO. 17 /PN/201 5 2. TH E LD. SPECIAL AR FOR THE REVENUE POINTED OUT THAT T HERE WAS AN ADMISSION OF C LANDESTINE REMOVAL OF GOODS BEFORE THE ASSESSING OFFICER AND THE ASSESSEE OFFERED PROFITS ON THE UNRECORDED SALES AND ALSO THE AMOUNT REQUIRED FOR EFFECTING PURCHASES W AS OFFERED AS ADDITIONAL INCOME AND EACH FACT IS MENTIONED IN THE STATEMENT OF FACTS IN FORM NO.35 AND WRITTEN NOTE FILED BY HIM ON 05.11.2014. IT WAS POINTED OUT BEFORE THE BENCH THAT THE STATEMENT WAS NOT WITHDRAWN OR RETRACTED BY ASSESSEE. IT WAS FURTHER POINTED OUT BY HIM THAT DESPITE THE NOTE AND ADMISSION , THIS ASPECT WAS MISSED OUT IN THE TRIBUNALS ORDER, SO THERE IS AN ERRONEOUS ASSUMPTION OF FACTS. WHERE THE ASSESSEE HAD OFFERED INCOME AND THE ASSESSING OFFICER HAD ACCEPTED THAT ADDITIONAL INCOME IN THE H ANDS OF THE ASSESSEE , THEN WHILE DELETING THE ADDITION , THE TRIBUNAL HAD COMMITTED AN ERROR AND OBSERVED THAT THERE WAS NO INFORMATION BEFORE THE ASSESSING OFFICER. IT WAS ALSO POINTED OUT BY LD. SPECIAL AR THAT THE ASSESSING OFFICER , AFTER HE GOT THE INF ORMATION OF THE ASSESSEE INVOLVED IN CLANDESTINE REMOVAL OF GOODS HAD ISSUED THE NOTI CE UNDER SECTION 148 OF THE ACT, A GAINST WHICH THE ASSESSEE FILED A RETURN OF INCOME OFFERING ADDITIONAL INCOME WHICH HAS BEEN ACCEPTED. THE LD. SPECIAL AR THUS POINTED O UT THAT T HE TRIBUNAL HAVING NOT CONSIDERED THE RELEVANT MATERIAL TO ARRIVE AT THE CONCLUSION , HENCE THERE WAS MISTAKE IN THE ORDER OF THE TRIBUNAL. OUR ATTENTION WAS DRAWN TO THE FINDINGS OF THE TRIBUNAL IN PARA 21 AT PAGE 41 AND PARA 22, 23, 24 AT PAGES 42 TO 45 OF THE TRIBUNAL S ORDER AND IT WAS VEHEMENTLY STRESSED BY THE LD. SPECIAL AR THAT THE ADDITION IN THE HANDS OF THE ASSESSEE WAS NOT ONLY BASED ON ERRATIC CONSUMPTION OF ELECTRICITY BUT IT WAS ONE OF THE MODE FOR CALCULATING THE ADDITION AL INCOME I N THE HANDS OF THE ASSESSEE. THE LD. SPECIAL AR FURTHER REFERRED TO THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN EARLIER YEARS AND ARGUED THAT IN VIEW OF THE SAID ORDER OF THE TRIBUNAL, ADDITION IN THE HANDS OF THE ASSESSEE SHOULD BE MADE BY ADO PTING THE ALLEGED CONSUMPTION AND INTERPOLATING THE SAME FOR 300 DAYS. THE LD. SPECIAL AR POINTED OUT THAT BY NOT MAKING TH E ADDITION OF INTERPOLATION OF 300 DAYS, THE ORDER OF THE TRIBUNAL SUFFERS FROM INFIRMITY AND THE SAME SHOULD BE RECTIFIED AND ADDIT ION IN THE HANDS OF THE 9 M A NO. 17 /PN/201 5 ASSESSEE SHOULD BE SUSTAINED ON THIS ACCOUNT. THE LD. SPECIAL AR POINTED OUT THAT THOUGH THE TRIBUNAL REFERRED TO HIS ARGUMENT BUT LOST SIGHT OF THE SAME , WHILE DECIDING THE APPEAL. IT WAS AGAIN STRESSED BY HIM THAT THE TRIBUNAL W HILE DECIDING THE ISSUE HAD NOT CONSIDERED THIS ASPECT. THE LD. SPECIAL AR PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE ALLAHABAD HIGH COURT IN ITO VS. ITAT, DELHI AND ANOTHER REPORTED IN (1965) 58 ITR 634 (ALL.) . FURTHER, RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE HONBLE MADHYA PRADESH HIGH COURT IN CIT VS. MITHALAL AHSOK KUMAR REPORTED IN (1986) 158 ITR 755 (MP) FOR THE PROPOSITION THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM ERROR , WHEN IT HAD NOT CONSIDERED THE MATERIAL PRODUCED BEFORE IT. THE LD. SPECIAL AR ALSO PLACED RELIANCE ON THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN NIRANJAN & CO. LTD. VS. ITAT AND OTHERS REPORT ED IN (1980) 122 ITR 519 (CAL.) , WHERE IN IT HAS BEE N HELD THAT THE TRIBUNAL HAS NO POWER TO REVIEW OR RE - HEAR THE MATTER. ANOTHER RELIANCE PLACED BY THE LD. SPECIAL AR WAS ON THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN JCIT VS. GRASIM INDUSTRIES LTD. IN MA NO.247/MUM/2010, ORDER DATED 25.03.2011 AND THE JUDGEMENT OF THE HONBLE ALLAHABAD HIGH COURT IN CIT VS. MOOL CHAND SHYAM LAL REPORTED IN (2005) 273 ITR 160 (ALL.) . FURTHER, RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. REPORTED IN (2008) 305 ITR 227 (SC) AND IN HONDA SIEL POWER PROD UCTS LTD. VS. CIT REPORTED IN (2007) 165 TAXMANN.COM 307 (SC) . 3 . THE LD. SPECIAL AR REFERRING TO THE OBSERVATION OF THE TRIBUNAL IN PARA 21 AT PAGE 41 OF THE ORDER REFERRED TO THE FACT NOTED BY THE TRIBUNAL THAT IN THE PRESENT CASE NO INDEPENDENT INVESTI GATION WAS MADE BY THE REVENUE. THE LD. SPECIAL AR OBJECTED TO THE SAID STATEMENT AND POINTED OUT THAT WHEN THERE IS AN ADMISSION BY THE ASSESSEE THEN ADDITION HAS TO BE SUSTAINED IN THE HANDS OF THE ASSESSEE. 4 . THE NEXT OBJECTION RAISED BY THE LD. SPEC IAL AR WAS THE CONTENTION MADE AT PAGE 7 OF THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT. IT WAS CONTENDED BY HIM THAT VARIOUS LEGAL ISSUES WERE RAISED AND ARE MENTIONED IN THE NOTES OF 10 M A NO. 17 /PN/201 5 ARGUMENT FILED ON 05.11.2014 BUT SINCE THE TRIBUNAL HAS REFR AINED FROM DEALING WITH THEM , THIS MISTAKE WAS COMMITTED BY THE TRIBUNAL AND IN SUCH A SITUATION WHAT IS FALL OUT I.E. (A) WHEN THERE IS CLANDESTINE REMOVAL OF GOODS , EXTRAPOLATION HAS NOT BEEN CONSIDERED IN THE HANDS OF THE ASSESSEE; AND, (B) THE TRIBUNAL SAY S THAT THERE IS NO INDEPENDENT I NQUIRY , THOUGH THERE IS AN I NQUIRY ON THE BASIS OF WHICH THE CLANDESTINE REMOVAL OF GOODS WAS DETECTED AND THE ASSESSEE OFFERED THE INCOME ON SUCH CLANDESTINE REMOVAL. THE LD. SPECIAL AR FURTHER STATED THAT EVEN THOUGH ASSESSING OFFICER HAD NOT MADE ANY ADDITION ON ACCOUNT OF CLANDESTINE REMOVAL OF GOODS, HOWEVER KEEPING IN MIND THE ERRATIC CONSUMPTION OF ELECTRICITY THE ASSESSING OFFICER HAD MADE ADDITION ON ACCOUNT OF ERRATIC CONSUMPTION OF ELECTRICITY. IT WAS VEHEMEN TLY ARGUED BY THE LD. SPECIAL AR THAT THE VARIOUS LEGAL ISSUES WHICH THE TRIBUNAL HAS REFRAINED FROM DEALING IN SHOULD HAVE DEALT BY IT AND IN THE ABSENCE OF THE SAME THERE IS A MISTAKE IN THE ORDER O F THE TRIBUNAL. 5 . COMING TO THE NEXT MISTAKE COMMITT ED BY THE TRIBUNAL I.E. ERRONEOUS 5 . COMING TO THE NEXT MISTAKE COMMITT ED BY THE TRIBUNAL I.E. ERRONEOUS INTERPRETATION OF THE DECISION OF THE HONBLE SUPREME COURT IN R.A. CASTINGS (SUPRA) , I T WAS POINTED OUT BY THE LD. SPECIAL AR THAT IN THE FACTS BEFORE THE HONBLE SUPREME COURT IN R.A. CASTINGS (SUPRA) THERE WAS NO CLANDE STINE REMOVAL OF GOODS. THE TRIBUNAL WHILE DELETING THE ADDITION HAD RELIED ON THE SAID DECISION WHICH WAS NOT RELEVANT. ON THE OTHER HAND, THE LD. SPECIAL AR HAD RELIED ON THREE DECISIONS WHICH HAVE NOT BEEN RELIED UPON BY THE TRIBUNAL. 6 . THE NEXT O BJECTION RAISED BY THE LD. SPECIAL AR WAS AGAINST THE WRONG INTERPRETATION OF THIRD MEMBER DECISION IN THE CASE OF THE ASSESSEE BEFORE THE CESTAT. THE CONTENTION OF THE LD. SPECIAL AR IN THIS REGARD WAS THAT THE TRIBUNAL HAD FAILED TO APPRECIATE THE JUDGE MENT PROPERLY AND CONSEQUENTLY THERE WAS A MISTAKE APPARENT FROM THE RECORD. IT WAS THE CONTENTION OF THE LD. SPECIAL AR THAT WHAT WAS THE BASIS ON WHICH THE THIRD MEMBER BASED HIS JUDGEMENT WAS NOT CONSIDERED BY THE TRIBUNAL I.E. THE QUESTION BEFORE THE THIRD MEMBER AND THE DECISION THEREON. ANOTHER CONTENTION RAISED BY THE LD. SPECIAL AR WAS THAT THE 11 M A NO. 17 /PN/201 5 ASSESSEE WAS INVOLVED IN WIDESPREAD RACKET OF CLANDESTINE REMOVAL OF GOODS WITHOUT PAYING EXCISE DUTY AND HENCE THE ADDITION IN THE HANDS OF THE ASSESSEE S HOULD HAVE BEEN SUSTAINED. THE RELIANCE PLACED BY THE TRIBUNAL ON THE RATIO LAID DOWN IN R.A. CASTINGS (SUPRA) IS NOT RELEVANT. THE LD. SPECIAL AR FURTHER POINTED OUT THAT WITH REGARD TO THE ESTIMATION OF GP IN THE HANDS OF THE ASSESSEE, HE HAD ALREADY M ADE SUBMISSIONS IN THE NOTE AT PAGE 4 OF HIS WRITTEN SUBMISSIONS DATED 05.11.2014. 7 . THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE, IN REPLY, SUBMITTED THAT WRITTEN NOTE FILED BY HIM DEALS WITH EACH AND EVERY ASPECT OF THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT. IT WAS FURTHER POINTED OUT BY HIM THAT THE TRIBUNAL IN PARA 13 AT PAGE 24 OF THE ORDER HAS REFERRED TO THE SYNOPSIS OF THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AND ALSO THE NOTE OF THE ARGUMENTS OF THE LD. SPECIAL AR AND IN MY WRITTEN NOTE NOW FILED , ALL THE ARGUMENTS OF THE LD. SPECIAL AR ARE ADDRESSED. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SPECIAL AR ARE ADDRESSED. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THIS WAS A MISCELLANEOUS APPLICATION FILED BY THE REVENUE AND THE ISSUE BEFORE THE TRIBUNAL IN MISCELLAN EOUS PROCEEDINGS IS WHETHER ALL THE ARGUMENTS TAKEN BY BOTH THE PARTIES WERE NOTED OR NOT. BUT THE TRIBUNAL WHILE DISPOSING OF AN APPEAL WAS NOT REQUIRED TO GIVE INDEPENDENT FINDING ON EACH JUDGEMENTS. THE PARTIES MAY CITE DECISIONS BUT THE JUDGEMENT OF THE TRIBUNAL IS INDEPENDENT OF THE ARGUMENTS MADE BY THE PARTIES. IT WAS FURTHER POINTED OUT BY HIM THAT IT WAS THE PREROGATIVE OF THE BENCH HOW TO GIVE THE FINDINGS. OUR ATTENTION WAS DRAWN TO PAGES 5 AND 6 OF THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT AND IT WAS POINTED OUT THAT IN THE MISCELLANEOUS APPLICATION THE LD. SPECIAL AR SAYS THAT THERE IS AN ERRONEOUS INTERPRETATION OF THE DECISION S BY THE TRIBUNAL. HE QUESTIONED HOW THE LD. SPECIAL AR CAN SAY THAT IT IS ERRONEOUS INTERPRETATION I N THE MISCELLANEOUS APPLICATION. THE LD. AUTHORIZED REPRESENTATIVE FOR T HE ASSESSEE PLACED RELIANCE ON SERIES OF DECISIONS AS PER THE CASE LAWS COMPILATION AND POINTED OUT THAT IN VIEW OF THE RATIO LAID DOWN BY THE SAID DECISION S , 12 M A NO. 17 /PN/201 5 THERE WAS NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT. IT WAS FURTHER CONTENDED BY HIM THAT THE TRIBUNAL HAD NOT DECIDED ON ONE ISSUE BUT ON MULTIPLE ISSUES. IT WAS FURTHER POINTED OUT BY HIM IF THE LD. SPECIAL AR SAYS THAT THE THIRD MEMBER DECISION OF CEST AT TRIBUNAL IS NOT TO BE APPLIED . HE STRESSED THAT THEN NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE BY RELYING ON THE ORDER OF THE CCE. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE THIRD MEMBER DECISION OF CESTAT TRIBU NAL HAD INTERPRETED THE PROVISIONS OF THE E XCISE L AWS AND EVEN THE DECISION IN R.A. CASTINGS (SUPRA) WAS UNDER THE E XCISE L AWS AND ONCE THAT DECISION HAS BEEN RELIED UPON BY THE THIRD MEMBER, AND THE ADDITION MADE IN THE HANDS OF THE ASSESSEE DELETED UNDER THE E XCISE L AWS, THERE IS NO MERIT IN ANY OF THE SUBMISSIONS MADE BY THE LD. SPECIAL AR IN THIS REGARD. 8 . COMING TO THE MERITS OF THE CASE, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT BEFORE THE ASSESSING OFFICER IN THE INCOME - TAX ASSESSEE POINTED OUT THAT BEFORE THE ASSESSING OFFICER IN THE INCOME - TAX PROCEEDINGS, THERE WAS NO ADMISSION, NO STATEMENT BEFORE ASSESSING OFFICER, AND NO INVESTIGATION BY ASSESSING OFFICER, EVEN THOUGH THERE WAS A SETTLEMENT PETITION FILED BEFORE THE SETTLEMENT COMMISSION FOR PARTICULAR QUANTIFY, WHICH FACT WAS AVAILABLE BEFORE ASSESSING OFFICER. IT WAS FURTHER POINTED OUT BY HIM THAT IF SETTLEMENT PETITION IS FILED BY ANY PERSON, THEN THE SETTLEMENT COMMISSION HAS UNDER ITS PROVISION, ON THE BASIS OF INFORMATION /MATERIAL AVAILABLE, THE RIGHT NOT TO ACCEPT THE SETTLEMENT PETITION . IT WAS FURTHER STRESSED THAT BY MAKING ANY SETTLEMENT BEFORE THE SETTLEMENT COMMISSION , NO PERSON COULD BE BLACK LISTED FOR EVER. IT WAS FURTHER POINTED OUT BY HIM THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE H AD FILED A LETTER BEFORE A SSESSING OFFICER ADMITTING ADDITION AL INCOME , BUT WHAT IS EVIDENCE BEFORE THE ASSESSING OFFICER. T HERE WERE NO QUERIES AND ONLY ON OWN ACCOUNT THE ASSESSEE HAD DECLARED ADDITIONAL INCOME. UNDER THE EXCISE ACT, THERE WAS NO SEARCH AND SEIZURE , BUT PUR SUAN T TO INVESTIGATION OF DGCEI , THE 13 M A NO. 17 /PN/201 5 ASSESSEE HAD ACCEPTED CLANDESTINE REMOVAL OF GOODS BEFORE THE SETTLEMENT COMMISSION AND NO INVESTIGATION BY ASSESSING OFFICER ON THIS ASPECT . 9 . WITH REFERENCE TO THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE RELAT ING TO ASSESSMENT YEAR 2006 - 07, IT WAS POINTED OUT BY THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT THE FACTS WERE AT VARIANCE AS IN THAT CASE SEARCH AND SEIZURE OPERATIONS BY INCOME TAX DEPARTMENT WERE CARRIED OUT ON THE BASIS OF 2 DAYS SALE FOU ND, AND THE TRIBUNAL HAD EXTRAPOLATED FOR 300 DAYS, AGAINST WHICH BOTH REVENUE AND THE ASSESSEE WENT IN APPEAL , WHICH APPEALS WERE DISMISSED BY THE HONBLE HIGH COURT. IN ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 , WHEN THERE WAS NO SEARCH AND NO INVESTIGATION BY THE INCOME TAX DEPARTMENT, IT WAS POINTED OUT BY THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT THERE WAS NO BASIS FOR MAKING ANY ADDITION OR EXTRAPOLATION FOR 300 DAYS IN THE HANDS OF THE ASSESSEE. IN RESPECT OF THE ADDITION TO BE SUSTAINED B Y EXTRAPOLATING THE SALE OF 2 TO 3 DAYS FOR 300 DAYS, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE 2 TO 3 DAYS FOR 300 DAYS, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE CASE OF THE ASSESSING OFFICER CANNOT BE MADE GOOD IN MISCELLANEOUS PROCEEDINGS. IT WAS POINTED OUT BY HIM THAT THE ASSESSING OFFI CER HAD NOT RAISED ANY ISSUE ON EXTRAPOLATION ON THIS ACCOUNT AND EVEN BEFORE THE CIT(A) AND THE TRIBUNAL , NO SUCH ARGUMENT WAS RAISED BY THE EITHER PARTY. OUR ATTENTION WAS DRAWN TO THE NOTE FILED BY THE LD. SPECIAL AR ON 05.11.2014 AND IT WAS POINTED OU T THAT THERE WAS NO ARGUMENT ON EXTRAPOLATION AND SUCH AN ARGUMENT FOR THE FIRST TIME HAD BEEN TAKEN IN THE MISCELLANEOUS PROCEEDINGS. IT WAS FURTHER POINTED BY HIM, THAT IN ANY CASE NO ADDITION ON ACCOUNT OF EXTRAPOLATION WAS POSSIBLE IN THE HANDS OF THE ASSESSEE BECAUSE OF THE RATIO LAID DOWN IN FOLLOWING DECISIONS : (I) CHHATTISGARH STEEL CASTING (P) LTD. VS. ACIT, 8 DTR (B I LASPUR) 14; (II) ANJANEYA BROCK WORKS VS. CIT, 74 TTJ 921; (III) C.J. SHAH & CO., 246 ITR 671; AND, (IV) ANAND KUMAR DEEPAK KUMAR , 294 ITR 497. 14 M A NO. 17 /PN/201 5 10. HE ALSO POINTED OUT THAT RELIANCE PLACED BY THE LD. SPECIAL AR ON SERIES OF DECISIONS IN THIS REGARD IS MISPLACED. 1 1 . WITH REGARD TO THE VARIOUS JUDGEMENTS RELIED UPON BY THE LD. SPECIAL AR, IT WAS POINTED OUT BY THE LD. AUTHORIZED RE PRESENTATIVE FOR THE ASSESSEE THAT WHERE THE TRIBUNAL HAS RELIED ON THE SECTIONS/JUDGEMENTS UNDER THE INCOME - TAX ACT, THERE WAS NO REASON TO RELY ON JUDGEMENT UNDER THE OTHER ACTS , WHEN JUDGEMENTS UNDER INCOME - TAX ACT WERE AVAILABLE TO DECIDE THE ISSUE. 1 2 . IN REJOINDER, THE LD. SPECIAL AR POINTED OUT THAT THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERS TO NO FURTHER INVESTIGATION BY MY ASSESSING OFFICER BUT WHERE THE ASSESSING OFFICER WAS SATISFIED THAT THERE WAS CLANDESTINE REMOVAL OF GOODS B UT RESULTED TO ANOTHER METHODOLOGY FOR COMPUTING THE ADDITION IN THE HANDS OF THE ASSESSEE, THE SAID ADDITION MERITS TO BE UPHELD. REFERRING TO THE THE HANDS OF THE ASSESSEE, THE SAID ADDITION MERITS TO BE UPHELD. REFERRING TO THE CASE LAWS RELIED UPON BY THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE, IT WAS THE CONTENTION OF THE L D. SPECIAL AR THAT THE SAME WERE NOT JUSTIFIABLE ON FACTS AND WERE NOT RELEVANT FOR DECIDING THE ISSUE. IT WAS FURTHER STATED BY HIM THAT WHEN THERE IS A DECISION AGAINST THE ASSESSEE THE N EXTRA POLATION CAN BE DONE SINCE THIS IS THE CASE OF RE - ASSESSMENT. IT WAS FURTHER STRESSED BY HIM THAT THERE WAS NO MERIT IN THE RELIANCE ON THE RATIO LAID DOWN IN R. A. CASTINGS (SUPRA) AND REFERENCE WAS MADE TO THE NOTES FILED BY HIM IN THIS REGARD. 1 3 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. UND ER SECTION 254(2) OF THE ACT, THE TRIBUNAL IS VESTED WITH A DISCRETIONARY POWER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. THE SAID POWER CAN BE EXERCISED BY THE TRIBUNAL AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF ORDER AND THE TRIBUNAL SHALL MA KE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. SECTION 254(2) OF THE ACT USES THE WORD MAY I.E. DISCRETION IS CONFERRED ON THE TRIBUNAL IN THE MATTER OF RECTIFICATION, IF IT FINDS ANY MISTAKE IN ITS 15 M A NO. 17 /PN/201 5 O RDER. THE MISTAKE SHOULD BE APPARENT FROM THE RECORD AND THE SCOPE OF RECTIFICATION IS NOT OF REVISION OR REVIEW. THE MISTAKE APPARENT FROM THE RECORD SHOULD BE SELF - EVIDENT, AND SHOULD NOT BE DEBATABLE AND ALSO SHOULD NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE O R ARGUMENT TO ESTABLISH IT. THE MISTAKE HAS TO BE SUCH WHICH IS APPARENT AND PATENT AND FOR WHICH, NO ELABORATE REASONS OR ENQUIRY IS NECESSARY. IN CASE WHERE TWO OPINIONS ARE POSSIBLE, THEN IT CANNOT BE SAID TO BE AN ERROR APPARENT ON THE BAS IS OF RECORD. SUCH WAS THE RATIO LAID DOWN BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS. VARDHAMAN SPINNING & GENERAL MILLS LTD. (1997) 226 ITR 296, 302 (P&H). UNDER SECTION 254(2) OF THE ACT, POWER IS CONFERRED WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND SUCH POWER DOES NOT CONTEMPLATE RE - HEARING, WHICH WOULD HAVE THE EFFECT OF RE - WRITING AN ORDER AFFECTING THE MERITS OF THE CASE. THE TRIBUNAL IS CONFERRED WITH THE POWER TO RECTIFY A MISTAKE AND THERE IS NO POWER TO REVIEW IT S ORDER. THE SAID RATIO IS LAID DOWN BY THE HONBLE DELHI HIGH COURT IN MS. DEEKSHA SURI VS. ITAT (1998) 232 ITR 395 (DELHI). FURTHER, IN THE GARB OF APPLICATION FOR RECTIFICATION, THE APPEAL CANNOT BE RE - ARGUED, WHICH IS BEYOND THE SCOPE OF SECTION 254( 2) OF THE ACT. 1 4 . THE HONBLE SUPREME COURT IN ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 (SC), RELIED UPON BY THE SPECIAL LEARNED AUTHORIZED REPRESENTATIVE FOR THE REVENUE, HELD AS UNDER: - A PATENT, MANIFEST AND SELF - EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPARENT ON TH E FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE FACE OF THE RECORD MEANS AN ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEED LONG DRAWN OUT PROCESS OF REASONING ON POI NTS WHERE THERE MAY CONCEIVABLY BE TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTE D BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF THE POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. - PATEL NARSHI THAKERSHI & ORS. VS. PRADYUMANSINGHJI ARJUNSINGHJI (1971) 3 SCC 844, HARI VISHNU KAMA TH VS. SYED AHMAD ISHAQUE (1955) 1 SCR 1104, SATYANARAYAN LAXMINARAYAN HEGDE & ORS. VS. MALLIKARJUN BHAVANAPPA TIRUMALE (1960) 1 SCR 890 AND SYED YAKOOB VS. K.S. RADHAKRISHNAN & ORS. (1964) 5 SCR 64 RELIED ON. (PARA 37) NON - CONSIDERATION OF A DECISION OF JURISDICTIONAL COURT OR OF THE SUPREME COURT CAN BE SAID TO BE A 'MISTAKE APPARENT FROM THE RECORD'. BOTH THE TRIBUNAL AND THE 16 M A NO. 17 /PN/201 5 HIGH COURT WERE RIGHT IN HOLDING THAT SUCH A MISTAKE CAN BE SAID TO BE A 'MISTAKE APPARENT FROM THE RECORD' WHICH CO ULD BE RECTIFIED UNDER S. 254(2). RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL. IT IS EXERCISED TO REMOVE THE ERROR AND TO DISTURB THE FINALITY. IN THE PRESENT CASE, ACCORDING TO THE ASSESSEE, THE TRIBUNAL DECIDE D THE MATTER ON 27TH OCT., 2000. CASE OF HIRALAL BHAGWATI WAS DECIDED FEW MONTHS PRIOR TO THAT DECISION, BUT IT WAS NOT BROUGHT TO THE ATTENTION OF THE TRIBUNAL. IN THE CIRCUMSTANCES, THE TRIBUNAL HAS NOT COMMITTED ANY ERROR OF LAW OR OF JURISDICTION IN E XERCISING POWER UNDER SUB - S. (2) OF S. 254 AND IN RECTIFYING 'MISTAKE APPARENT FROM THE RECORD'. SINCE NO ERROR WAS COMMITTED BY THE TRIBUNAL IN RECTIFYING THE MISTAKE, THE HIGH COURT WAS NOT WRONG IN CONFIRMING THE SAID ORDER. BOTH THE ORDERS, THEREFORE, ARE STRICTLY IN CONSONANCE WITH LAW AND NO INTERFERENCE IS CALLED FOR. - ASSTT. CIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2003) 183 CTR (GUJ) 364 : (2003) 262 ITR 146 (GUJ) AFFIRMED; SUHRID GEIGY LTD. VS. COMMR. OF SURTAX (1998) 150 CTR (GUJ) 424 : (1999) 237 ITR 834 (GUJ) APPROVED; S. NAGARAJ & ORS. VS. STATE OF KARNATAKA 1993 SUPP (4) SCC RELIED ON. (PARAS 41, 45 & 47) 1 5 . THE HONBLE APEX COURT IN ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) FURTHER HELD THAT NON CONSIDERATION OF DECI SION OF JURISDICTIONAL HIGH COURT OR OF THE HONBLE SUPREME COURT COULD BE SAID TO BE A MISTAKE APPARENT FROM THE RECORD. 1 6 . SIMILAR PROPOSITION HAS BEEN LAID DOWN BY THE HONBLE SUPREME COURT IN 1 6 . SIMILAR PROPOSITION HAS BEEN LAID DOWN BY THE HONBLE SUPREME COURT IN HONDA SIEL POWER PRODUCTS LTD. VS. CIT (2007) 295 ITR 46 6 (SC), WHEREIN IT WAS HELD AS UNDER: - 12. AS STATED ABOVE, IN THIS CASE WE ARE CONCERNED WITH THE APPLICATION UNDER SECTION 254(2) OF THE 1961 ACT. AS STATED ABOVE, THE EXPRESSION 'RECTIFICATION OF MISTAKE FROM THE RECORD' OCCURS IN SECTION 154. IT ALSO F IND S PLACE IN SECTION 254(2). THE PURPOSE BEHIND ENACTMENT OF SECTION 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL, BE IT AN ASSESSEE OR THE DEPARTMENT, SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE T RIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING TO DO WITH THE INHERENT POWERS OF THE TRIBUNAL. IN THE PRESENT CASE, THE TRIBUNAL IN ITS ORDER DATED 10 - 9 - 2003 ALLOWING THE RECTIFICATION APPLICATION HAS GIVEN A FINDING THAT SAMTEL COLOR LTD.'S CASE (SUPRA) WAS CITED BEFORE IT BY THE ASSESSEE BUT THROUGH OVERSIGHT IT HAD MISSED OUT THE SAID JUDGMENT WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF ADMISSIBILITY / ALLOWABILITY OF THE CLAIM OF THE ASSESSEE FOR ENHANCED DEPRECIATION UNDER SEC TION 43A. ONE OF THE IMPORTANT REASONS FOR GIVING THE POWER OF RECTIFICATION TO THE TRIBUNAL IS TO SEE THAT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEARING BEFORE IT BY ITS DECISION BASED ON A MISTAKE APPARENT FROM THE RECORD. 13. 'RULE OF PREC EDENT' IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN RULE OF LAW . THAT PRINCIPLE IS NOT OBLITERATED BY SECTION 254(2) OF THE INCOME - TAX ACT, 1961. WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNAL'S MISTAKE, ERROR OR OMISSION, THEN IT IS TH E DUTY OF THE TRIBUNAL TO SET IT RIGHT. ATONEMENT TO THE WRONGED PARTY BY THE COURT OR TRIBUNAL FOR THE WRONG COMMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER TO REVIEW. IN THE PRESENT CASE, THE TRIBUNAL WAS JUSTIFIED IN EXERCISING ITS POWERS UNDER SECTION 254(2) WHEN IT WAS POINTED OUT TO THE TRIBUNAL THAT THE JUDGMENT OF THE CO - ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNAL WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HAD COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL, WHICH WA S ALREADY ON RECORD. THE TRIBUNAL HAS 17 M A NO. 17 /PN/201 5 ACKNOWLEDGED ITS MISTAKE; IT HAS ACCORDINGLY RECTIFIED ITS ORDER. IN OUR VIEW, THE HIGH COURT WAS NOT JUSTIFIED IN INTERFERING WITH THE SAID ORDER. WE ARE NOT GOING BY THE DOCTRINE OR CONCEPT OF INHERENT POWER. WE ARE SIMPLY PROCEEDING ON THE BASIS THAT IF PREJUDICE HAD RESULTED TO THE PARTY, WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIBUNAL'S MISTAKE, ERROR OR OMISSION AND WHICH ERROR IS A MANIFEST ERROR THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE, WHI CH HAD BEEN DONE IN THE PRESENT CASE. 1 7 . THE HONBLE BOMBAY HIGH COURT IN CIT VS. RAMESH ELECTRIC & TRADING CO. (1993) 203 ITR 497 (BOM) HAD LAID DOWN THE PROPOSITION THAT FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRI VING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD, ALTHOUGH IT MIGHT HAVE BEEN AN ERROR OF JUDGMENT. THE HONBLE BOMBAY HIGH COURT HELD AS UNDER: - THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE I NCOME - TAX ACT, 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. IN THE INSTANT CASE, IN THE FIRST ORDER OF THE TRIBUNAL DATED 9 - 6 - 1975, THERE WAS NO MISTAKE WHICH WAS APPARENT FROM THE RECORD AT ALL. THE TRIBUNAL WAS REQUIRED TO DECIDE WHETHER THE COMMISSION PAYMENT OF RS.54,000 WAS DEDUCTIBLE UNDER SECTION 37 AFTER EXAMINING THE CIRCUMSTANCES, THE TRIBUNAL CAME TO THE CONCLUSION TH A T IT WAS NOT SO DEDUCTIBLE. THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF J UDGMENT BUT A MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF J UDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF . NO SUCH MISTAKE WAS APPARENT FROM THE RECORD. IN FACT, THIS WAS DOUB T FUL, IF THIS SORT OF AN EXERCISE COULD HAVE BEEN DONE BY THE TRIBUNAL EVEN IF IT HAD THE POWER OF REVIEW. THE T RIBUNAL HAD, PATENTLY, FAR EXCEEDED ITS JURISDICTION UNDER SECTION 254(2) IN REDECIDING THE ENTIRE DISPUTE WHICH WAS BEFORE IT IN THIS FASHION, AND THE TRIBUNAL HAD COMMITTED A GROSS AND INEXPLICABLE ERROR FOR REASONS WHICH COULD NOT BE UNDERSTOOD. THE PO WER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHERE THE MISTAKE IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND A LONG - DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MIGHT CONCEIVAB LY BE TWO OPINIONS. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD ALTHOUGH IT MAY HAVE BEEN AN ERROR OF JUDGMENT. IN THE INSTANT CASE , THE ALLEGED FAILURE AT LEA ST ON ONE CO UNT WAS ATTRIBUTED BY THE ASSESSEE TO THE ITO AND NOT THE TRIBUNAL . THEREFORE , THE TRIBUNA L HAD NO J URISDICTION UNDER SECTION 254(2) TO PASS THE SECOND ORDER. 1 8 . THE HONBLE DELHI HIGH COURT IN CIT VS. HINDUSTAN COCA COLA BEVERAGES (P.) LTD. (2007) 293 ITR 163 (DELHI) HAD FURTHER LAID DOWN THE PROPOSITION THAT UNDER SECTION 254(2) OF THE ACT, THERE IS NO POWER OF REVIEW, BUT IS RESTRICTED TO RECTIFYING THE MISTAKES APPARENT FROM THE RECORD. 1 9 . SIMILAR PROPOSITION HAS BEEN LAID DOWN BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN POPULAR ENGG. CO. VS. ITAT, (2001) 248 ITR 577 (P&H). 18 M A NO. 17 /PN/201 5 20 . THE MUMBAI BENCH OF TRIBUNAL IN JT. CIT VS. GRASIM INDUSTRIES LTD. IN M.A NO.247/MUM/2010 VIDE ORDER DATED 25.03.2011 HAD LAID DOWN THE PROPOSITION THAT WH ERE THE TRIBUNAL HAD OVERLOOKED THE RELEVANT MATERIAL ON RECORD, THERE WOULD BE AN ERROR APPARENT FROM THE RECORD, WHICH COULD BE RECTIFIED BY SETTING ASIDE THE ORDER FOR FRESH CONSIDERATION AND WHERE A MATERIAL FACT HAS BEEN LOST SIGHT OF BY THE TRIBUNAL, THEN IT HAS THE POWER TO RECTIFY THE MISTAKE SO COMMITTED, PROVIDED MATERIAL FACT HAS AN IMPORTANT BEARING ON THE ULTIMATE DECISION. 2 1 . THE REVENUE IN THE PRESENT CASE HAS FILED THE MISCELLANEOUS APPLICATION AGAINST THE ORDER OF TRIBUNAL DATED 16.01.201 5. THE ALLEGATION OF THE DEPARTMENT IS THAT THE SAID ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKES OF FACTS AND LAW, WHICH ARE APPARENT FROM THE RECORD, WHICH IN TURN, CAUSED SERIOUS PREJUDICE AND INJUSTICE TO THE RESPONDENT REVENUE. THE FIRST ALLEG ATION IS THE ERRONEOUS ASSUMPTION OF MATERIAL FACTS. REFERENCE IS BEING MADE TO THE NOTES OF ARGUMENTS ASSUMPTION OF MATERIAL FACTS. REFERENCE IS BEING MADE TO THE NOTES OF ARGUMENTS FILED ON 05.11.2014 BY THE LD. SPECIAL AR, WHICH ADMITTEDLY, HAS BEEN TAKEN NOTE OF BY THE TRIBUNAL VIDE PARA 13 ON PAGE 24 OF THE IMPUGNED ORDER. THE REVENUE ADMITS THAT THE TRIBUNAL VIDE PARA 11 ON PAGE 16 TO PARA 11.1 ON PAGE 18 OF THE IMPUGNED ORDER HAD REPRODUCED THE BASIC MAIN FACTUAL POINTS ARGUED AND BROUGHT TO THE NOTICE OF BENCH BY THE RESPONDENT REVENUE. FURTHER, REFERENCE WAS MADE TO THE CON FESSIONAL STATEMENT DATED 12.01.2007 GIVEN BY SHRI SURENDRA S. PEETY, MANAGING DIRECTOR OF THE ASSESSEE COMPANY BEFORE THE DGCEI ABOUT THE REMOVAL AND SALE OF AROUND 275 MT OF INGOTS CLANDESTINELY TO SHREE OM ROLLING MILLS, WITHOUT PAYMENT OF EXCISE DUTY A ND RECEIPT OF CASH AGAINST THE SALES. THE PLEA OF THE REVENUE IN THIS REGARD IS THAT DURING THE RE - ASSESSMENT PROCEEDING, THE ASSESSEE HAD OFFERED INCOME OF RS.6,72,620/ - AND THUS, THE FACT OF SUPPRESSION OF SALES WAS ADMITTED BY THE ASSESSEE COMPANY BEFO RE THE ASSESSING OFFICER. IN VIEW OF THE ADMISSION OF THE ASSESSEE IN THE STATEMENT OF FACTS AND ALSO IN ITS SUBMISSIONS FILED BEFORE THE ASSESSING OFFICER, THE REVENUE PLEADED THAT THERE 19 M A NO. 17 /PN/201 5 WAS EVIDENCE IN POSSESSION OF THE ASSESSING OFFICER ABOUT THE REMOV AL OF MATERIAL IN CLANDESTINE MANNER BY THE ASSESSEE AMOUNTING TO SUPPRESSION OF SALES. IN OTHER WORDS, THERE WAS EVIDENCE IN THE POSSESSION OF THE RESPONDENT DEPARTMENT EVIDENCING SUPPRESSION OF SALES. FURTHER, REFERENCES WERE MADE TO THE ORDER OF THE S ETTLEMENT COMMISSION IN THE CASE OF THE ASSESSEE. THE GRIEVANCE OF THE REVENUE BY WAY OF MISCELLANEOUS APPLICATION BEFORE US WAS THAT THE TRIBUNAL HAD NOT ANALYZED THE ABOVE SAID EVIDENCES AND HAD MISTAKENLY OVERLOOKED THE SAME BY PLACING RELIANCE ON THE THIRD MEMBER DECISION OF CESTAT IN THE CASE OF ASSESSEE, WHICH HAD NOT CONSIDERED THE ABOVE CLINCHING EVIDENCE AS THE SAME WAS NOT AN ISSUE / GROUND BEFORE IT. REFERENCE WAS MADE TO THE DECISION OF THIRD MEMBER OF CESTAT IN THE MISCELLANEOUS APPLICATION A ND IT IS ALLEGED BY THE REVENUE THAT THE THIRD MEMBER HAD NOT CONSIDERED THE EVIDENCE ABOUT THE CLANDESTINE REMOVAL OF MATERIAL AND THE DUTY LEVIED ON THE SAME, WHICH ISSUE WAS SETTLED BY THE SETTLEMENT COMMISSION. THE REVENUE FURTHER ALLEGED THAT THE CON FESSIONAL ADMISSION OF THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS THE CENTRAL EXCISE AUTHORITES AND ALSO THE FACT THAT THE ASSESSEE COMPANY HAD OFFERED INCOME ON ALLEGED SUPPRESSED SALES AND ALLEGED UNACCOUNTED PURCHASES WERE CONSIDERED BY BOTH T HE LOWER AUTHORITIES AND THE CONCLUSION DRAWN BY THE TRIBUNAL VIDE PARA 21 ON PAGE 41 OF THE IMPUGNED ORDER IS AN OUTCOME OF ERRONEOUS ASSUMPTION OF FACTS RESULTING INTO MISTAKE OF LAW AND THUS CONSTITUTE MISTAKE APPARENT FROM THE RECORD. 2 2 . THE PERUSA L OF THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AND THE ELABORATE SUBMISSIONS MADE BY THE SPECIAL LEARNED AUTHORIZED REPRESENTATIVE FOR THE REVENUE REFLECT THAT THE REVENUE HAS RE - ARGUED ITS APPEAL IN THE GARB OF MISCELLANEOUS APPLICATION. THE REV ENUE HAS RAISED CONSISTENT PLEAS FOR THE RE - CONSIDERATION OF THE ISSUE AND THE ARGUMENTS RAISED BY THE LD. SPECIAL AR BY WAY OF PRESENT MISCELLANEOUS APPLICATION ARE IN THIS REGARD. WE, IN THE PARAS HEREINABOVE HAVE REPRODUCED THE MISCELLANEOUS APPLICATIO N FILED BY THE REVENUE AND HAVE ALSO IN DETAIL REFERRED TO THE SUBMISSIONS MADE BY THE LD. SPECIAL AR 20 M A NO. 17 /PN/201 5 BEFORE US AND THE SAME REFLECTS ELABORATE SUBMISSIONS MADE BY HIM BY REFERRING TO VARIOUS EVIDENCES AND ARGUMENTS TO ESTABLISH ITS CASE. UNDER THE PROVIS IONS OF SECTION 254(2) OF THE ACT, THE TRIBUNAL IS VESTED WITH THE LIMITED POWER OF RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, WHICH SHOULD BE PATENT MISTAKE AND NOT BE ESTABLISHED BY A LONG DRAWN PROCESS OF ARGUMENTS. THE COURTS HAVE TIME AND AGAIN HELD THAT IN THE GARB OF MISCELLANEOUS PROCEEDINGS, THE PARTIES CANNOT RE - ARGUE AND RE - PRESENT ITS CASE AS THE SAME WOULD AMOUNT TO REVIEW AND NOT RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD. IN VIEW THEREOF, WHERE THE LD. SPECIAL AR HAS TIME AND A GAIN POINTED OUT THAT THE TRIBUNAL HAD NOT CONSIDERED ITS ARGUMENTS THOUGH HE HIMSELF ADMITS THAT THE TRIBUNAL HAD SUMMARIZED HIS ARGUMENTS IN PARAS 11 TO 11.1 AT PAGES 16 TO 18 OF THE ORDER OF TRIBUNAL, WE FIND NO MERIT IN THE ALLEGATIONS MADE BY THE LD. SPECIAL AR VIS - - VIS NON - CONSIDERATION OF MATERIAL. THE LD. SPECIAL AR IN THE GARB OF THE PRESENT MISCELLANEOUS APPLICATION HAS RE - ARGUED HIS APPEAL BY RAISING DIFFERENT PLEAS WHICH AS POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WERE NOT CASE OF THE ASSESSING OFFICER OR THE CIT(A) AND NO SUCH CONTENTIONS WERE RAISED EVEN BY THE DEPARTMENT IN THE WRITTEN NOTE FILED ON 05.11.2014. THE PRESENT MISCELLANEOUS APPLICATION MERITS TO BE DISMISSED ON THIS ACCOUNT. 2 3 . NOW, WE COM E TO TH E ISSUE NO.1 RAISED BY THE REVENUE IN ITS MISCELLANEOUS APPLICATION. THE PERUSAL OF THE ORDER OF TRIBUNAL DATED 16.01.2015 REFLECTS THAT AFTER CONSIDERING THE FACTUAL ASPECTS OF THE CASE, THE TRIBUNAL REFERRED TO THE SUBMISSIONS OF THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN PARA 10 TO 10.4 AND THE SAME WERE SUMMARIZED AT PAGES 12 TO 15 OF THE ORDER. FURTHER, THE ARGUMENTS OF LD. SPECIAL AR WERE SUMMARIZED IN PARAS 11 TO 11.5 ON PAGES 16 TO 22 OF THE ORDER. AFTER HEARING THE REJOINDER OF TH E ASSESSEE, THE TRIBUNAL VIDE PARA 13 NOTES THAT THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAD FILED ARGUMENTS / SYNOPSIS AND THE LD. SPECIAL AR HAD ALSO FILED NOTES OF HIS ARGUMENTS ON 05.11.2014, WHICH ARE PLACED ON RECORD. THE TRIBUNAL THE REAFTER, CONSIDERED ALL 21 M A NO. 17 /PN/201 5 THE PRECEDENTS AND DECISIONS RELIED ON BY BOTH THE PARTIES AND THEREAFTER, ADJUDICATED THE ISSUE VIDE PARA 14. THE FACTUM OF THE ACTION BY DGCEI AGAINST FEW BROKERS AND SUB - BROKERS, WHO WERE INVOLVED IN TRADING OF INGOTS AND BILLET S OF TMT BARS AND ALSO THE PETITION FILED BY THE ASSESSEE BEFORE THE CENTRAL EXCISE AND SETTLEMENT COMMISSION, MUMBAI BENCH WAS REFERRED TO. FURTHER, REFERENCE WAS ALSO MADE TO THE SEARCH AND SEIZURE OPERATIONS CARRIED OUT AGAINST THE ASSESSEE AND ITS GRO UP COMPANIES BY THE INCOME - TAX DEPARTMENT ON 17.03.2006 AND THE CONSEQUENT ASSESSMENTS FRAMED UNDER SECTION 153A R.W.S. 143(3) OF THE ACT IN PARA 14. VIDE PARA 15, IT WAS TAKEN NOTE OF BY THE TRIBUNAL THAT FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09, NO INDE PENDENT INVESTIGATION OR INQUIRY WAS MADE BY THE ASSESSING OFFICER OR ANY OTHER INCOME - TAX AUTHORITY. THE TRIBUNAL FURTHER OBSERVED AS UNDER: - 15. IT IS ALSO TO BE TAKEN NOTE OF THE FACT THAT EVEN FOR THE A.YS. 2007 - 08 AND 2008 - 09, NO INDEPENDENT INVESTI GATION OR ANY ENQUIRY IS MADE BY THE ASSESSING OFFICER OR ANY OTHER INCOME TAX AUTHORITIES. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS PLACED HIS RELIANCE ONLY ON THE INFORMATION RECEIVED FROM THE CENTRAL EXCISE AUTHORITIES AND THE PROCEEDING BEFOR E THE SETTLEMENT COMMISSION OF CENTRAL EXCISE AUTHORITIES AND THE PROCEEDING BEFOR E THE SETTLEMENT COMMISSION OF CENTRAL EXCISE & CUSTOM, MUMBAI. THE INVESTIGATION WAS CARRIED OUT BY CENTRAL EXCISE AUTHORITIES I.E. DGCEI, AGAINST FEW BROKERS/SUB - BROKERS AND THOSE BROKERS GAVE THE NAMES OF MANY COMPANIES WHO ARE IN THE MANUFACTURING OF INGOT/BILLETS AND TMT BARS. AS PER THE STATEMENT GIVEN BEFORE THE CENTRAL EXCISE AUTHORITIES BY THOSE BROKERS AS WELL AS SUB - BROKERS NAMELY SHRI UMESH MODI, MUMBAI, SHRI ANIL D LINGADE, SHRI MUKESH GUPTA IT WAS ADMITTED THAT THEY WERE INVOLVED IN CLEARING THE CONSIGNMENTS FROM THE FACTORY ON WEIGHMENT SLIPS ONLY AND NO EXCISE DUTY WAS PAID AND THEY WERE INVOLVED IN PROVIDING FAKE TRADING BILLS AND CHALLANS WHICH ACCOMPANIED THE VEHICLES CARRYING THOSE CONSIGNMENTS. AS PER THE MODUS OPERANDI ADOPTED BY THE BROKERS THEY USED TO RECOVER THE SAID FAKE TRADING BILLS AND CHALLANS AFTER THE GOODS REACHED THEIR DESTINATION. AS NOTED BY THE ASSESSING OFFICER THOSE BROKERS/SUB - BROKERS ALSO ADMITTED THAT THE ENTIRE EVIDENCE WAS DESTROYED BY THEM AND THEY USED TO GET THE COMMISSION OF RS.100/ - PER MT. THE ASSESSING OFFICER HAS DISCUSSED THE INFORMATION GATHERED BY THE DGCEI, ZONAL UNIT, MUMBAI IN PARA NOS. 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 & 2.7 OF THE ASSESSMENT ORDER. SO FAR AS ACTION AGAINST THE BROKERS AND SUB - BROKER S ARE CONCERNED THE CENTRAL EXCISE AUTHORITY ISSUED SHOW CAUSE TO THE ASSESSEE AS WELL AS THE OTHER MANUFACTURERS WHO WERE INVOLVED IN CLEARING THE EXCISABLE GOODS WITHOUT PAYMENT OF DUTY. ALL THE MANUFACTURERS OF THE INGOTS/BILLETS AND TMT BARS WERE BASE D IN JALNA AND THE ASSESSEE IS ONE OF THEM. AS PER THE INVESTIGATION DONE BY THE CENTRAL EXCISE AUTHORITIES, THE ASSESSEE WHO IS MANUFACTURING OF INGOTS/BILLETS SUPPLIED 288.500 MT. TO SHRI OM ROLLING MILLS PVT. LTD. WHICH IS ENGAGED IN THE MANUFACTURING OF TMT BARS. THE ASSESSING OFFICER ALSO REFERRED TO A STATEMENT OF SHRI SURENDRA S. PEETY, MANAGING DIRECTOR OF THE ASSESSEE RECORDED ON 12 - 01 - 2007, BY THE DGCEI WHO ALLEGEDLY ADMITTED THAT THE GOODS SUPPLIED TO SHRI OM ROLLING MILLS PVT. LTD. I.E. INGOTS / BILLETS, WERE REMOVED CLANDESTINELY WITHOUT PAYMENT OF EXCISE DUTY AND THE SAID MATERIAL WAS TO EXTENT OF 275 MTS. THE SALE PRICE WAS RECEIVED IN CASH FROM SHRI OM ROLLING MILLS PVT. LTD. AND HENCE, THERE WAS NO ACCOUNTING. THE ASSESSEE ADMITTED THE SA ID CHARGE OF THE CENTRAL EXCISE AUTHORITIES I.E. DGCEI AND APPROACHED THE SETTLEMENT COMMISSION AND PAID THE EXCISE DUTY TO THE EXTENT OF RS.7,79,313/ - FOR CLEARING THE GOODS WITHOUT PAYMENT OF 22 M A NO. 17 /PN/201 5 EXCISE DUTY. THE DECLARATION FILED BY THE ASSESSEE WAS ACCEPT ED WITHOUT ANY FURTHER ADDITION OR OBJECTION FILED BY THE CENTRAL EXCISE AUTHORITIES. THE SETTLEMENT COMMISSION LEVIED THE PENALTY OF RS.8,000/ - 2 4 . THE TRIBUNAL THEREAFTER, IN PARA 16 REFERRED TO THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER FOR ARRIVING AT THE CONCLUSION THAT AS COMPARED TO THE CONSUMPTION OF ELECTRICITY SHOWN BY THE ASSESSEE, THE PRODUCTION WAS MUCH LOWER. IT WAS ALSO REFERRED TO BY THE TRIBUNAL THAT THE ASSESSING OFFICER COMPLETED THE ASSESSMENT IN LINE WITH THE ASSESSMENTS F RAMED BY THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, AURANGABAD. IN RESPECT OF THE ALLEGED SUPPRESSION OF PRODUCTION, AFTER CONSIDERING THE ELECTRICITY CONSUMPTION DECLARED BY THE ASSESSEE, THE ASSESSING OFFICER HAD REJECTED THE BOOKS OF ACCOUNT UNDER SECTION 145(3) OF THE ACT AND HAD ADOPTED THE SUPPRESSION OF PRODUCTION DETERMINED BY CCE, AURANGABAD AND HELD THE ASSESSEE TO HAVE SUPPRESSED THE PRODUCTION, AS NOTED BY THE TRIBUNAL VIDE PARA 17. THE TRIBUNAL VIDE PARA 19 OBSERVED THAT IN BOTH THE ASSE SSMENT YEARS, THE ASSESSING OFFICER HAD DETERMINED THE ALLEGED SUPPRESSION OF PRODUCTION / SALES AS DETERMINED BY THE CCE, AURANGABAD ON THE BASIS OF POWER CONSUMPTION. THE TRIBUNAL VIDE PARA 19.2 REFERRED TO THE ORDER OF CESTAT, WHICH WAS AGAINST THE ORD ER OF CCE, AURANGABAD AND THIRD MEMBER OF CESTAT AFTER DISCUSSING THE ISSUE WHICH WAS REPRODUCED BY THE TRIBUNAL UNDER PARA 19.3 AT PAGES 31 TO 37 OF THE ORDER HELD THAT BY MAJORITY VIEW, THE APPEALS FILED BY THE ASSESSEE AND OTHER COMPANIES WERE ALLOWED B Y CESTAT ON 30.07.2006. VIDE PARA 19.4, IT IS STATED BY THE TRIBUNAL THAT THE CCE, AURANGABAD HAD CONSIDERED THE INVESTIGATION MADE BY DGCEI AGAINST SOME BROKERS AND IN CONSEQUENT THERETO, SHOW CAUSE NOTICES WERE ISSUED TO THE ASSESSEE AND OTHER COMPANIES , AGAINST WHICH THE ASSESSEE AND OTHER COMPANIES CAME FORWARD BEFORE THE SETTLEMENT COMMISSION AND PAID THE EXCISE DUTY. THE TRIBUNAL FURTHER NOTED THAT THE INVESTIGATION OF DGCEI MADE AGAINST THE BROKERS AND SUB - BROKERS WAS ALSO BEFORE THE LEARNED CCE, A URANGABAD. THE TRIBUNAL FURTHER OBSERVED THAT ON THE PERUSAL OF ASSESSMENT ORDER, IT WAS CLEAR THAT BOTH THE ASSESSMENTS WERE MERELY BASED ON 23 M A NO. 17 /PN/201 5 ALLEGED SUPPRESSION OF PRODUCTION BY ESTIMATING CERTAIN CONSUMPTION OF ELECTRICITY. THE TRIBUNAL FURTHER HELD TH AT SINCE AS THE VERY BASIS OF THE ASSESSMENT ORDER I.E. THE ORDER OF THE CCE, AURANGABAD HAS BEEN SET - ASIDE AND CANCELLED BY THE CESTAT, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) APPROVING THE ESTIMATE ALLEGED SUPPRES SION OF PRODUCTION / SALES HAVE NO LEGAL LEGS TO STAND. PARA 19.4 OF THE ORDER OF TRIBUNAL READS AS UNDER: - 19.4 THE COMMON ORDER WAS PASSED BY THE CESTAT ON 30 - 07 - 2006 AS PER THE MAJORITY OPINION ALLOWING THE APPEALS FILED BY THE ASSESSEE AND OTHER AP PELLANT COMPANIES. THE COPY OF THE MAJORITY ORDER IS PLACED AT PAGE NOS. 5 AND 6 OF THE P/B VI. IT IS PERTINENT TO NOTE HERE THAT THE LD. COMMISSIONER HAS ALSO CONSIDERED THE INVESTIGATION MADE BY THE DGCEI AGAINST SOME BROKERS AND IN CONSEQUENCE THE S HOW CAUSE NOTICES (SCN) WERE ISSUED TO THE ASSESSEE AND OTHER COMPANIES AND THE ASSESSEE AND OTHER COMPANIES CAME FORWARD BEFORE THE SETTLEMENT COMMISSION AND PAID THE EXCISE DUTY. HENCE, THE INVESTIGATION OF THE DGCEI MADE AGAINST THE BROKERS AND SUB - BRO KERS REFERRED BY THE ASSESSING OFFICER WAS ALSO BEFORE THE LD. COMMISSIONER, AURANGABAD. ON PERUSAL OF THE ASSESSMENT ORDERS IT IS CLEAR THAT BOTH THE ASSESSMENTS ARE MERELY BASED ON THE ALLEGED SUPPRESSION OF THE PRODUCTION BY ESTIMATING CERTAIN CONSUMPT ION OF ELECTRICITY I.E. 1026 UNITS FOR MANUFACTURING OF 1 MT OF INGOTS AND BILLETS. MOREOVER, EVEN IF IN THE A.Y. 2008 - 09, THE ASSESSING OFFICER HAS OBSERVED THAT THE INFORMATION RECEIVED FROM THE CENTRAL EXCISE AUTHORITIES HAS NO BEARING IN THE SAID ORDE R BUT ON THE PERUSAL OF THE SAID ORDER, IT IS SEEN THAT ENTIRE ORDER IS COPY OF ORDER PASSED FOR THE A.Y. 2007 - 08. AS VARY BASIS OF THE ASSESSMENT ORDER I.E. THE ORDER OF THE COMMISSIONER OF CENTRAL VARY BASIS OF THE ASSESSMENT ORDER I.E. THE ORDER OF THE COMMISSIONER OF CENTRAL EXCISE (CCE), AURANGABAD HAS BEEN SET ASIDE AND CANCELLE D BY THE CESTAT, IN OUR OPINION THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A) APPROVING THE ESTIMATED ALLEGED SUPPRESSION OF THE PRODUCTION/SALES HAVE NO LEGAL LEGS TO STAND. 2 5 . THE PERUSAL OF THE ABOVE SAID FINDI NG OF THE TRIBUNAL REFLECTS THAT PLEAS OF LD. SPECIAL AR WERE CONSIDERED WHILE DECIDING THE ISSUE, BOTH THE INVESTIGATION CARRIED OUT BY THE DGCEI, CONSEQUENT TO WHICH, SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE AND THE ASSESSEE FILED A PETITION BEFORE T HE SETTLEMENT COMMISSION AND PAID THE EXCISE DUTY AND ALSO THE FACT THAT THE SAID INVESTIGATION BY DGCEI WAS BEFORE THE CCE, AURANGABAD, WHO IN TURN, HELD THE ASSESSEE TO HAVE SUPPRESSED THE PRODUCTION ON ACCOUNT OF CERTAIN CONSUMPTION OF ELECTRICITY. THE PERUSAL OF THE FINDING OF TRIBUNAL IN PARA 19.4 REFLECTS THAT BOTH THE ASPECTS OF THE ISSUE I.E. PETITION BEFORE THE SETTLEMENT COMMISSION WHICH IS CONSEQUENT TO THE INVESTIGATION BY THE DGCEI AND ALSO THE ORDER OF CCE, AURANGABAD ALLEGING THE SUPPRESSION OF PRODUCTION ON CERTAIN CONSUMPTION OF ELECTRICITY, WERE CONSIDERED BY THE TRIBUNAL AND IN VIEW OF THE ORDER OF CCE, AURANGABAD BEING SET - ASIDE AND CANCELLED BY THE 24 M A NO. 17 /PN/201 5 CESTAT, THE TRIBUNAL HELD THAT THE ESTIMATED ALLEGED SUPPRESSION OF PRODUCTION / SALES HA VE NO LEGAL LEGS TO STAND. 2 6 . THE ALLEGATIONS OF REVENUE VIDE MISCELLANEOUS APPLICATION THAT THE TRIBUNAL HAD OVERLOOKED THE EVIDENCES I.E. THE CONFESSIONAL ADMISSION BY WAY OF PETITION BEFORE THE SETTLEMENT COMMISSION AND HAS ONLY RELIED ON THE THIRD MEMBER DECISION OF CESTAT IN THE CASE OF ASSESSEE, IS THUS, INCORRECT. 2 7 . NOW, COMING TO THE SECOND STAND OF THE REVENUE THAT THE THIRD MEMBER DECISION OF CESTAT IN THE CASE OF ASSESSEE HAD NOT CONSIDERED THE ABOVE SAID CLINCHING EVIDENCE, SINCE THE SA ME WAS NOT AN ISSUE / GROUND BEFORE IT, IS ALSO INCORRECT. THE THIRD MEMBER OF CESTAT VIDE PAGE 13 OF IMPUGNED ORDER HAD REPRODUCED PARA 19 OF THE ORDER OF CCE, AURANGABAD, WHEREIN HE NOTED THAT THERE WERE OTHER INSTANCES OF CENTRAL EXCISE VIOLATIONS DETE CTED BY OTHER AGENCIES WHERE THE ASSESSEE WAS FOUND TO BE INVOLVED. THE CCE, AURANGABAD / CESTAT ALSO REFERRED TO THE ASSESSEE APPROACHING SETTLEMENT COMMISSION AND ADMITTING THE EVASION OF OFFENCE OF AN IDENTICAL NATURE. THE RELEVANT PARA OF THE THIRD M EMBER OF CESTAT AT PAGE 13 IS REPRODUCED BY THE REVENUE IN ITS MISCELLANEOUS APPLICATION AT TOP OF PAGE 4 AND THE ALLEGATION OF THE REVENUE THAT THE THIRD MEMBER HAD NOT CONSIDERED THE EVIDENCE ABOUT CLANDESTINE REMOVAL OF MATERIALS AND THE DUTY LEVIED ON WHICH, WAS SETTLED BY THE SETTLEMENT COMMISSION, IS INCORRECT. 2 8 . THE TRIBUNAL IN ASSESSEES CASE HAS FURTHER VIDE PARA 21 GIVEN A FINDING THAT NO INDEPENDENT INVESTIGATION WAS MADE BY THE REVENUE, BUT THE ENTIRE ASSESSMENTS WERE FRAMED ON THE BASIS OF INFORMATION RECEIVED FROM CENTRAL EXCISE DEPARTMENT AS WELL AS ADJUDICATION ORDER PASSED BY THE CCE, AURANGABAD. IN VIEW OF THE ORDER OF CCE, AURANGABAD BEING SET - ASIDE BY THE THIRD MEMBER, THE TRIBUNAL FURTHER HELD THAT THE DECISIONS RELIED UPON BY THE LD. SPECIAL AR WHICH WERE IN THE CONTEXT OF ADMISSION OF THE DIRECTOR OF THE ASSESSEE, IN THE COURSE OF INVESTIGATION MADE BY DGCEI, MORE PARTICULARLY UNDER THE INDIAN EVIDENCE ACT, WERE NOT 25 M A NO. 17 /PN/201 5 RELEVANT NOW. THE RELEVANT PARA 21 HAS TO BE READ IN ENTIRETY AN D THERE IS NO MERIT IN THE MISCELLANEOUS APPLICATION MOVED BY THE REVENUE IN THIS REGARD BY REFERRING TO PART OF THE PARA 21. THE RELEVANT PARA 21 READS AS UNDER: - 21. THOUGH THE LD. SPL. AR HAS REFERRED TO AND RELIED ON THE DIFFERENT JUDGMENTS OF THE HON'BLE SUPREME COURT MORE PARTICULARLY ON THE BINDING NATURE OF THE ADMISSION OF ANY PERSON - SEC. 17, SEC. 106 AND SEC. 115 OF THE INDIAN EVIDENCE ACT ETC. BUT THE FACT REMAINS THAT IN THE CASE OF THE PRESENT ASSESSEE NO INDEPENDENT INVESTIGATION IS MAD E BY THE REVENUE BUT THE ENTIRE ASSESSMENTS ARE FRAMED ON THE BASIS OF THE INFORMATION RECEIVED FROM THE CENTRAL EXCISE DEPARTMENT AS WELL AS THE ADJUDICATION ORDER PASSED BY THE LD. COMMISSIONER OF CENTRAL EXCISE, AURANGABAD. MOREOVER, AS OBSERVED ABOVE T HE ADJUDICATION ORDER PASSED BY THE CCE, AURANGABAD HAS BEEN CANCELLED BY THE CESTAT, MUMBAI BY MAJORITY OPINION AND HENCE, FOUNDATION OF ASSESSMENTS FOR A. YRS. 2007 - 08 & 2008 - 09 DO NOT EXIST. THE LAW IS ALSO WELL SETTLED THAT WHEN THE ASSESSEE FILES AN APPEAL CHALLENGING AN ORDER OF THE LOWER AUTHORITY BEFORE THE HIGHER APPELLATE AUTHORITY THEN THE ENTIRE ORDER GETS MERGED WITH THE ORDER OF THE HIGHER APPELLATE FORUM WHICH IN THE PRESENT CASE IS CESTAT. MOREOVER, INVESTIGATION BY DGCEI AND PROCEEDING BEF ORE THE SETTLEMENT COMMISSION HAS ALSO BEEN CONSIDERED BY THE CCE, AURANGABAD IN HIS ADJUDICATION ORDER. THE SAID ORDER WAS SUBJECT MATTER BEFORE THE CESTAT AND SAID ORDER HAS BEEN SET ASIDE. HENCE, WE DO NOT CONSIDER IT NECESSARY TO DEAL WITH DECISIONS R ELIED ON BY LD. SPL AR OF THE REVENUE WHICH ARE IN CONTEXT OF ADMISSION OF THE DIRECTOR OF THE ASSESSEE IN THE COURSE OF INVESTIGATION MADE BY DGCEI MORE PARTICULARLY UNDER THE INDIAN EVIDENCE ACT AS THOSE DECISIONS ARE NOT RELEVANT NOW THOUGH GOOD FOR ACA DEMIC DISCUSSION. SO FAR AS MAINTAINING OF FORM G - 7 IN RESPECT OF THE ELECTRICITY CONSUMPTION, THE SAID ISSUE WAS ALSO BEFORE THE CESTAT WHILE DECIDING THE FATE OF ORDER OF THE LD. CCE, AURANGABAD. LD. AR THE CESTAT WHILE DECIDING THE FATE OF ORDER OF THE LD. CCE, AURANGABAD. LD. AR VEHEMENTLY ARGUED TO POINT OUT HOW THE ORDER OF THE CESTAT, MUMBAI BENCH, MUMBAI IS NOT CORRECT. THE CESTAT IS A HIGHER APPELLATE FORUM UNDER THE CUSTOM ACT 1962 AND CENTRAL EXCISE ACT 1944 AND WE CANNOT SIT AS REVISIONARY AUTHORITY OR MAKE ANY OBSERVATION WHETHER THAT ORDER IS RIGHT OR WRONG. 2 9 . WHERE THE TRIBUNAL AFTER CONSIDERING THE FACTUAL ASPECTS OF THE CASE AND ARGUMENTS OF AUTHORIZED REPRESENTATIVES HAD ADJUDICATED THE ISSUE TAKING INTO CONSIDERATION BOTH THE ASPECTS OF INVESTIGATION BY DGCEI AND THE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION A ND ALSO THE ORDER PASSED BY THE CCE, AURANGABAD, WHICH HAS BEEN SET - ASIDE BY THE THIRD MEMBER OF CESTAT AND ALSO NO INDEPENDENT INVESTIGATION BEING MADE BY THE REVENUE AND THE ENTIRE ASSESSMENTS BEING FRAMED ON THE BASIS OF INFORMATION RECEIVED FROM THE CE NTRAL EXCISE DEPARTMENT, THE CONCLUSION DRAWN BY THE TRIBUNAL IN THIS REGARD CANNOT BE SAID TO BE AN OUTCOME OF ERRONEOUS ASSUMPTION OF FACTS RESULTING INTO MISTAKE OF LAW. ONCE THE TRIBUNAL HAS GIVEN A DECISION AFTER CONSIDERING ALL THE ASPECTS OF THE CA SE I.E. BOTH THE FACTUAL AND LEGAL, THE SAME CANNOT BE RE - ARGUED BY THE REVENUE, AS THE SAME WOULD AMOUNT TO REVIEW OF ORDER, WHICH IS NOT PERMISSIBLE UNDER THE 26 M A NO. 17 /PN/201 5 PROVISIONS OF SECTION 254(2) OF THE ACT. THE REVENUE HAS FAILED TO ESTABLISH ANY MISTAKE APPAR ENT FROM THE RECORD AND THE ARGUMENTS RAISED BY THE REVENUE IN ITS MISCELLANEOUS APPLICATION ARE AKIN TO RE - HEARING OF THE APPEAL IN THE MANNER IN WHICH LD. SPECIAL AR HAS UNDERSTOOD THE ISSUE, WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2 ) OF THE ACT. THE HONBLE BOMBAY HIGH COURT IN CIT VS. RAMESH ELECTRIC & TRADING CO. (SUPRA) HAD LAID DOWN THE PROPOSITION THAT FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT OF EITHER OF THE PARTIES, FOR ARRIVING AT A CONCLUSION, IS NOT AN ERROR APPAREN T FROM THE RECORD. HOWEVER, AS REFERRED TO BY US IN THE PARAS HEREIN ABOVE, THE TRIBUNAL IN THE PRESENT CASE HAD CONSIDERED ALL THE ARGUMENTS OF THE REVENUE AND DECIDED THE ISSUE BOTH FACTUALLY AND LEGALLY AND IN THE ABSENCE OF ANY ERROR IN THE SAID DECIS ION, THE SAME IS NOT OPEN TO RECTIFICATION UNDER SECTION 254(2) OF THE ACT. IN VIEW OF OUR HOLDING THAT THE SUBMISSIONS MADE BY THE REVENUE IN ITS MISCELLANEOUS APPLICATION AMOUNTS TO RE - ARGUING / RE - HEARING OF THE APPEAL AND THE SAME BEING OUTSIDE THE PU RVIEW OF EXERCISE OF POWER BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT, THE FIRST ISSUE RAISED BY THE REVENUE IN MISCELLANEOUS APPLICATION IS DISMISSED. 30 . THE SECOND ASPECT RAISED BY THE REVENUE IS AGAINST THE PARA 21 ON PAGE 41 OF THE IMPUGNED ORDE R, WHEREIN THE TRIBUNAL HAD OBSERVED THAT NO INDEPENDENT INVESTIGATION AND INQUIRY WAS CONDUCTED BY THE REVENUE, BUT ENTIRE ASSESSMENTS WERE FRAMED ON THE BASIS OF INFORMATION RECEIVED FROM THE CENTRAL EXCISE DEPARTMENT AS WELL AS ADJUDICATION ORDER PASSED BY THE CCE, AURANGABAD. THE CASE OF THE REVENUE BEFORE US IS THAT THE AFORESAID CONCLUSION DRAWN BY THE BENCH WAS AN OUTCOME OF MISTAKEN BELIEF OF FACTS AND LAW AS THE CONFESSIONAL STATEMENT OF THE ASSESSEE COMPANY BEFORE THE ASSESSING OFFICER AS WELL AS THE CENTRAL EXCISE AUTHORITIES AND ALSO THE OFFER OF INCOME ON ALLEGED SUPPRESSED SALE WERE CONSIDERED BY LOWER AUTHORITIES AND THE TRIBUNAL HAD NOT CONSIDERED THE DECISION ABOUT THE LAW OF ADMISSION OF ANY ASSESSEE. IN THE FIRST INSTANCE, THE DECISIONS REFERRED TO BY THE REVENUE WERE UNDER THE EXCISE ACT I.E. PULLANGODE RUBBER 27 M A NO. 17 /PN/201 5 PRODUCE CO. LTD. VS. STATE OF KERALA AND ANOTHER (1973) 91 ITR 18 (SC) AND BASANT SINGH & ORS IN CIVIL APPEALS NOS.19 & 20 OF 1963, ORDER DATED 02.08.1966 HAVE BEEN CONSIDERED BY T HE THIRD MEMBER OF CESTAT AND IN VIEW THEREOF, IT CANNOT BE SAID THAT THE TRIBUNAL HAS NOT CONSIDERED THE RATIOS OF SAID DECISIONS, WHEREIN IT HAD RELIED ON THE DECISION OF THIRD MEMBER OF CESTAT. FURTHER, DECISION IN MAK DATA PVT. LTD. VS. CIT (2013) 358 ITR 593 (SC) WAS ON ISSUE OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND THE TRIBUNAL VIDE PARA 11.1 AT PAGE 18 OF THE TRIBUNAL ORDER HAD NOTED THE RELIANCE PLACED UPON BY THE LD. SPECIAL AR ON THE SAID DECISION. THE TRIBUNAL ALSO IN THE SAID PARA NOTES THE ARGUMENTS OF THE LD. SPECIAL AR THAT THE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION AS WELL AS THE CONFESSION BY THE ASSESSEE WERE GOOD PIECES OF EVIDENCE. 3 1 . ONCE THE ARGUMENTS OF THE REVENUE HAVE BEEN CONSIDERED BY THE TRIBUNAL AND THE RELIANCE HAS ALSO BEEN CONSIDERED BY THE CESTAT, THERE IS NO MERIT IN THE MISCELLANEOUS APPLICATION MOVED BY THE REVENUE IN THIS REGARD THAT THE FAILURE TO MISCELLANEOUS APPLICATION MOVED BY THE REVENUE IN THIS REGARD THAT THE FAILURE TO CONSIDER THE DECISION OF HONBLE SUPREME COURT OR THE JURISDICTIONAL HIGH COURT CONSTITUTE MISTAKE OF LAW APPARENT FROM THE RECORD. THE HONBLE SUPREME COURT IN ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) HAD LAID DOWN THE PROPOSITION THAT THE FAILURE TO CONSIDER THE DECISION OF HONBLE SUPREME COURT OR THE JURISDICTIONAL HIGH COURT CONSTITUT E MISTAKE OF LAW APPARENT FROM THE RECORD. HOWEVER, WHERE THE ABOVE SAID PROPOSITION HAS BEEN CONSIDERED AND APPLIED BY THE CESTAT AND ALSO CONSIDERED BY THE TRIBUNAL, THEN NO FAILURE COULD BE ATTRIBUTED TO THE TRIBUNAL ARISING IN ANY MISTAKE APPARENT FRO M THE RECORD. HENCE, THIS PLEA OF THE REVENUE IS ALSO DISMISSED. 3 2 . THE NEXT TWO OBJECTIONS RAISED BY THE REVENUE ARE AGAINST THE ERRONEOUS INTERPRETATION OF THE DECISIONS OF HONBLE SUPREME COURT IN THE CASE OF R.A. CASTING (SUPRA) AND IN ASSESSEES O WN CASE REPORTED IN 137 TTJ 627 (PUNE). THE HEADING OF THE OBJECTION ITSELF REFLECTS THAT THE TRIBUNAL HAD INTERPRETED THE DECISION REFERRED TO BY THE REVENUE AND ANY INTERPRETATION WHICH IS ERRONEOUS OR OTHERWISE CANNOT 28 M A NO. 17 /PN/201 5 BE SUBJECTED TO REVIEW BY WAY OF R AISING THE ISSUE AS MISTAKE APPARENT FROM THE RECORD UNDER SECTION 254(2) OF THE ACT. THE SAID DECISION OF THE TRIBUNAL CAN AT BEST BE SAID TO BE AN ERROR OF JUDGMENT WHICH IS NOT OPEN FOR EXERCISE OF POWER BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. HENCE, EVEN THIS PLEA OF REVENUE IS DISMISSED. 3 3 . THE LD. SPECIAL AR FURTHER MAKES REFERENCE TO THE LEGAL ISSUES WHICH HE HAD RAISED VIDE HIS NOTES OF ARGUMENTS FILED ON 05.11.2014 AND HAS SOUGHT RECTIFICATION OF THE ERRORS ALLEGED TO BE COMMITTED BY T HE TRIBUNAL ON ERRONEOUS ASSUMPTION OF FACTS. THE ASSESSEE BEFORE US HAS FILED A WRITTEN NOTE AND HAS ALSO FILED TABULATED DETAILS OF VARIOUS LEGAL ISSUES RAISED BY LD. SPECIAL AR IN HIS WRITTEN SYNOPSIS AND WHICH IN TURN, HAVE BEEN CONSIDERED AND DECIDED BY THE TRIBUNAL VIDE DIFFERENT PARAS. THE RELEVANT DETAILS ARE AS UNDER: - ISSUE CONSIDERED AND DECIDED BY HON. TRIBUNAL IN THE FOLLOWING PARAS TRIBUNAL IN THE FOLLOWING PARAS ISSUE NO.1 SETTLEMENT OF SMALL QUANTITY BEFORE EXCISE AUTHORITY THE SAME IS CONSIDERED IN PARA 10.2, 11, 11 . 6, 12 AND 14 ISSUE NO.2 - IF SUPPRESSION IS FOR PART OF PERIOD THE SAME CAN BE EXTRAPOLATED FOR REST OF THE YEAR THE SAME IS CONSIDERED IN THE MIDDLE OF PAGE NO.18 AND FINDING IS GIVEN IN PARA 19.4 AT PAGE NO.38 OF THE ORDER ISSUE NO.3 ESTIMATING SUPP RESSED PRODUCTION ON THE BASIS OF ELECTRICITY CONSUMPTION THE SAME IS CONSIDERED IN PARA 11.2 AND GIVEN THE FINDING IN PARA 23 AT PAGE NO.45 OF THE ORDER ISSUE NO.4 APPLICABILITY OF RATIO OF DECISION OF RA CASTING THE SAME IS CONSIDERED IN PARA 11.4 AND 11.5 AT PAGE NO.20 AND 21 AND THE SAME IS DISCUSSED ABOVE IN ISSUE NO.3 ISSUE NO.5 WHETHER IN VIEW OF THE DECISION OF THIRD MEMBER CESTAT THE CONSIDERED I N MIDDLE OF PARA 11 . 5 AT PAGE NO.21 WHEREIN THE FINDING IS GIVEN AFTER DECISION OF THIRD MEMBER CESTAT THE ADDITION OF SUPPRESSION OF SALES MADE BY THE AO AND CONFIRMED BY THE CIT(A) DESERVE TO BE DELETED NO.21 WHEREIN THE FINDING IS GIVEN AFTER CONSIDERING ALL THE ISSUES AND DECISIONS GIVEN BY THE SPECIAL COUNSEL STARTING FROM PARA 13 AND IN THE STARTING OF PARA 13 MENTIONED AS UNDER: WE HAVE HEARD THE RIVAL SUBMISSIONS OF TH E PARTIES AND PERUSED THE RECORD. LD. AR FOR THE ASSESSEE FILED ARGUMENT SYNOPSIS AND LD. SPECIAL AR FOR THE REVENUE ALSO HAS FILED NOTES OF HIS ARGUMENT ON 05 - 11 - 2014 WHICH ARE PLACED ON RECORD. WE HAVE ALSO CONSIDERED ALL THE PRECEDENTS AND DECISIONS RE LIED ON BY BOTH THE PARTIES. PARTIES. FURTHER THE FINDING IS GIVEN IN PARA 19.4 AT PAGE NO.38 OF THE ORDER ISSUE NO.6 WHETHER CIT(A) JUSTIFIED IN CALCULATING THE PROFIT AT THE RATE OF 4% ON THE SAME IS CONSIDERED IN PARA 31 29 M A NO. 17 /PN/201 5 SUPPRESSED SALE ISSUE NO.7 CONTENT ION THAT FOR THE YEARS UNDER CONSIDERATION THE LD. AO HAS DROPPED PENALTY PROCEEDINGS U/S THE HON. TRIBUNAL HAS NOT TAKEN THIS SUBMISSION INTO ACCOUNT WHILE PASSING THE ORDER DROPPED PENALTY PROCEEDINGS U/S 271(1)(C) OF IT ACT, 1961 WHICH SHOWS THAT THERE WAS NO SUPPRESSION AS ALLEGED ORDER I SSUE NO.8 APPLICABILITY OF DECISION OF ACIT V. SRJ PEETY STEEL PVT. LTD. 137 TTJ 627 DISCUSSED ABOVE IN ISSUE NO.4 OF THE MA ISSUE NO.9 APPLICABILITY OF DECISION OF THE HIGH COURT IN THE CASE OF THE ASSESSEE FOR EARLIER ASSESSMENT YEARS THE SAME IS CONSIDERED IN PARA 23 AND THE FINDING OF THE BOMBAY HIGH COURT IS INCORPORATED BY THE TRIBUNAL ISSUE NO.10 APPLICABILITY OF DECISION OF ACIT V. A.K. ALLOYS PVT. LTD. 271(1)(C) OF THE ACT TAXMANN.COM 120 ON THE GROUND THE FACTS OF THE CASE ARE DISTINGU ISHABLE WHILE DEALING WITH THE CASE, THE HON. BENCH IN PARA 25 CLEARLY QUOTED FROM THE DECISION THAT THE EXCISE AUTHORITY HAS RECORDED STATEMENT OF DIRECTOR OF THE COMPANY THAT THE ASSESSEE HAS REMOVED GOODS WORTH RS.4,19,12,650/ - ON WHICH GOODS WORTH RS.4,19,12,650/ - ON WHICH EXCISE DUTY WAS PAYABLE HOWEVER, IT WAS SUBSEQUENTLY RETRACTED BY THE ASSESSEE. ISSUE NO.11 APPLICABILITY OF DECISION IN THE CASE OF ACIT V. ARORA ALLOYS 271(1)(C) OF THE ACT TAXMANN.COM 140. IT IS ARGUED THAT IN THIS CASE THE STATEMENT WAS RECORDED BY THE EXCISE AUT HORITIES AND NOT BY THE INCOME TAX AUTHORITIES THE SAME IS CONSIDERED AND RELIED ON IN PARA 26 ON PAGE NO.49 OF THE ORDER. IN THIS REGARDS, WE SUBMIT THAT IN CASE OF THE ASSESSEE ALSO, THE STATEMENT FOR REMOVAL OF GOODS WITHOUT PAYMENT OF DUTY WAS GIVEN B EFORE THE EXCISE AUTHORITIES AND AS SUBMITTED ABOVE NO STATEMENT WAS RECORDED BY THE INCOME TAX AUTHORITIES REGARDING REMOVAL OF GOODS. FURTHER EVEN AFTER GETTING THE INFORMATION FROM THE EXCISE DEPARTMENT THE AO HAS NOT DONE EXCISE DEPARTMENT THE AO HAS NOT DONE ANY ENQUIRY. THEREFORE IT IS WRONG TO SAY THAT THESE FACTS OF THIS CASE ARE DIFFERENT AND NOT APPLICABLE TO THE FACTS OF THE ASSESSEE ISSUE NO.12 APPLICABILITY OF DECISION IN THE CASE OF VISHAL PAPER INDUSTRIES JCIT 32 TAXMANN.COM 247. IN THIS CASE THERE WAS NO ADMISSION FOR REMOVAL OF GOODS WITHOUT PAYMENT OF EXCISE. HOWEVER IN THE CASE BEFORE THE HON. BENCH THERE WAS AN ADMISSION ON ACCOUNT OF SUPPRESSED SALES AND UNDISCLOSED INCOME HAS BEEN OFFERED FOR WE NEED NOT ARGUE THIS REPEATEDLY AS THE ADMISSION WAS FOR SMA LL QUANTITY BEFORE THE EXCISE AUTHORITIES FOR WHICH SETTLEMENT PETITION WAS FILED AND ALLOWED BY PAYING THE EXCISE DUTY ON ALSO DECLARED PROFIT AT THE RATE OF 4% ON THE SALE PRICE OF THE QUANTITY REMOVED WITHOUT PAYMENT OF DUTY IN THE IT RETURN. FURTHER, THE AO HAS NOT RECORDED ANY STATEMENT NOR MADE ANY UNDISCLOSED INCOME HAS BEEN OFFERED FOR TAXATION NOT RECORDED ANY STATEMENT NOR MADE ANY ENQUIRY IN THIS REGARDS. ISSUE NO.13 APPLICABILITY OF CHATTISGARH STEEL CASTING PVT. LTD. V. ACIT 8 DTR 14. THE DEPARTMENT ARGUED THAT THE BENCH HAS ACCEPTED THE ARGUMENT OF THE ASSESSEE AGAINST TH E DECISION OF SUPREME COURT IN THE CASE OF H.M. ESUFALLI 90 ITR 271 IS NOT APPLICABLE IN THE INSTANT CASE AND IN THE SUBSEQUENT PARA THE DEPARTMENT ARGUES THAT THE DECISION IN THE CASE OF CHATTISGARH STEEL (SUPRA) DOES NOT PROPOUND THE CORRECT WELL SETTL ED LEGAL I AM AFRAID WHETHER MA CAN BE FILED AGAINST OR CHALLENGING THE DECISIONS TAKEN BY THE HON. TRIBUNAL. FURTHER THE DECISION OF H.M. ESUFALLI IS ALREADY CONSIDERED BY THE HON. BENCH IN PARA 11.1 AT PAGE NO.18 PROVISIONS 30 M A NO. 17 /PN/201 5 3 4 . THE CONTENTION OF THE LD. SPECIAL AR BEFORE US WAS THAT THE TRIBUNAL HAD NOT CONSIDERED THE ABOVE SAID ISSUES AND HENCE, THERE ARE MISTAKES OF LAW APPARENT FROM THE RECORD IN THIS REGARD. THE PERUSAL OF THE ORDER OF TRIBUNAL AND AS REFERRED IN TABULATED DETAILS IN THE PARAS HE REINABOVE REFLECT THAT EACH AND EVERY ISSUE RAISED BY THE LD. SPECIAL AR IN HIS WRITTEN NOTE DATED 05.11.2014 HAS BEEN CONSIDERED BY THE TRIBUNAL AND THE DECISION OF THE TRIBUNAL CANNOT BE DISTURBED / QUESTIONED BY WAY OF THE PRESENT MISCELLANEOUS APPLICAT ION, WHERE THE ISSUES HAVE BEEN CONSIDERED, DEALT IN AND DECIDED BY THE TRIBUNAL. THE LD. SPECIAL AR TIME AND AGAIN RAISED ARGUMENTS POINTING OUT THAT THE JUDGEMENTS REFERRED TO BY HIM SHOULD BE INTERPRETED IN A MANNER, WHICH AS PER HIM HAVE NOT BEEN APPL IED BY THE TRIBUNAL IN RIGHT PERSPECTIVE. WE FIND NO MERIT IN THE SAID PLEA OF THE LD. SPECIAL AR THAT THE SAME AT BEST WOULD AMOUNT TO AN ERROR OF JUDGMENT BY THE TRIBUNAL AND THE SAME IS NOT OPEN TO RECTIFICATION AS IT IS NOT A MISTAKE APPARENT FROM THE RECORD AND THE TRIBUNAL UNDER SUCH CIRCUMSTANCES CANNOT EXERCISE ITS POWER UNDER SECTION 254(2) OF THE ACT. THUS, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. 3 5 . ANOTHER ISSUE RAISED BY THE LD. SPECIAL AR REPEATE DLY AND VEHEMENTLY DURING THE HEARING OF MISCELLANEOUS APPLICATION WAS EXTRAPOLATION OF SALES FOR 300 DAYS, IN VIEW OF THE ADMISSION OF ASSESSEE FOR CLANDESTINE REMOVAL OF GOODS FOR A PERIOD OF 2 - 4 DAYS. THE ARGUMENT OF THE LD. SPECIAL AR BEFORE US WAS TH AT THE SAID ASPECT WAS CONSIDERED BY THE ASSESSING OFFICER, HOWEVER, ANOTHER METHODOLOGY WAS ADOPTED BY THE ASSESSING OFFICER WHILE ESTIMATING THE SUPPRESSED SALES IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF ERRATIC CONSUMPTION OF ELECTRICITY. IT WAS FURTH ER STRESSED BY HIM THAT THE ADDITION IN THE HANDS OF THE ASSESSEE IN THE ALTERNATE IS MERITED BY EXTRAPOLATING THE SALES FOR 300 DAYS IN VIEW OF THE ADMISSION OF THE ASSESSEE BEFORE THE SETTLEMENT COMMISSION OF CLANDESTINE REMOVAL OF GOODS. THE LD. SPECIA L AR POINTED OUT THAT THE ISSUES STAND COVERED AGAINST THE ASSESSEE IN VIEW OF THE APPEAL OF THE ASSESSEE BEING DISMISSED BY THE HONBLE 31 M A NO. 17 /PN/201 5 BOMBAY HIGH COURT RELATING TO ASSESSMENT YEAR 2006 - 07. TIME AND AGAIN, HE REFERRED TO THE DECISION OF THE TRIBUNAL REP ORTED IN 137 TTJ 627 [PUNE] AND POINTED OUT THAT THE TRIBUNAL HAS NOT CONSIDERED THE SAID FACT BEFORE DELETING THE ADDITION IN THE HANDS OF THE ASSESSEE AND THE ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE OF FACTS AND LAW. 3 6 . THE PERUSAL OF THE A SSESSMENT ORDER AND THE ORDER PASSED BY THE CIT(A) REFLECTS THAT THE ADMISSION OF THE ASSESSEE BEFORE THE DGCEI AND THE CONSEQUENT PETITION FILED BEFORE THE SETTLEMENT COMMISSION WAS IN THE KNOWLEDGE OF BOTH THE AUTHORITIES AND ALSO THE SAID FACT WAS IN TH E KNOWLEDGE OF CCE, AURANGABAD. HOWEVER, THE ADDITION IN THE HANDS OF THE ASSESSEE WAS MADE ON ACCOUNT OF ERRATIC CONSUMPTION OF ELECTRICITY I.E. THE FINAL ORDER PASSED BY THE CCE, AURANGABAD. NO OTHER INVESTIGATION WAS CARRIED OUT BY THE ASSESSING OFFIC ER DURING THE ASSESSMENT PROCEEDINGS OR DURING REMAND PROCEEDINGS OF THE CIT(A). THE TOTAL ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF ERRATIC CONSUMPTION OF ELECTRICITY MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF ERRATIC CONSUMPTION OF ELECTRICITY WHICH WAS THE ORDER PASSED BY CCE, AURANGABAD. THE SAID ORDER HAVIN G BEEN OVERTURNED BY THE THIRD MEMBER OF CESTAT, WAS CONSIDERED BY THE TRIBUNAL AND THE ADDITION MADE IN THE HANDS OF THE ASSESSEE WAS DELETED. ONE IMPORTANT FACT TO BE NOTED IN THIS WHOLE EXERCISE OF ASSESSMENT AND APPELLATE PROCEEDINGS IS THAT NEITHER I N THE ORDER OF THE ASSESSING OFFICER NOR THE CIT(A), THERE IS AN EVEN WHISPER OF EXTRAPOLATION OF SALES FOR THE ENTIRE YEAR BY ADOPTING THE CLANDESTINE REMOVAL OF GOODS, WHICH WAS ADMITTED BY WAY OF SETTLEMENT BEFORE THE SETTLEMENT COMMISSION. 3 7 . THE FIR ST ASPECT OF THE ISSUE IS WHERE AN ASPECT OF ADDITION I.E. EXTRAPOLATION OF SALES IN THE HANDS OF THE ASSESSEE, WHICH HAS NOT BEEN CONSIDERED / ADJUDICATED BY ANY OF THE AUTHORITIES, CAN THE SAID ISSUE BE RAISED BEFORE THE TRIBUNAL. THE ANSWER TO THAT QUE STION IS YES. HOWEVER, THE PERUSAL OF THE WRITTEN NOTE FILED BY THE REVENUE DATED 05.11.2014 DOES NOT REFLECT ANY SUCH ARGUMENTS MADE BY THE LD. SPECIAL AR. THOUGH THIS ISSUE OF EXTRAPOLATING THE FIGURES OF SUPPRESSED SALES WAS 32 M A NO. 17 /PN/201 5 RAISED BY THE LD. SPECIAL AR BY WAY OF ISSUE NO.2 IN HIS WRITTEN NOTE DATED 05.11.2014, BUT THE RELIANCE WAS ONLY THE PRESUMPTION UNDER SECTION 114 OF THE INDIAN EVIDENCE ACT AND THE VARIOUS CASE LAWS. THE RELEVANT WRITTEN SUBMISSIONS VIDE ISSUE NO.2 READ AS UNDER: - ISSUE NO.2 WH ETHER THE LEARNED ASSESSING OFFICER / LEARNED C.I.T.[A] WAS JUSTIFIED IN EXTRAPOLATING THE FIGURES OF SUPPRESSED SALES BEING EFFECTED BY THE ASSESSEE COMPANY? IT IS A WELL SETTLED LAW THAT IF SUPPRESSION FOR PART OF THE PERIOD IS FOUND, SUPPRESSION CAN BE ESTIMATED FOR THE REST OF THE YEAR. PRESUMPTION U/S 114 OF THE INDIAN EVIDENCE ACT 1872 CAN BE RELIED UPON IN ESTIMATING THE SUPPRESSED INCOME. PLEASE REFER THE FOLLOWING DECISIONS I . COMMISSIONER OF SALES TAX V/S H.M. ESUFALI H.M. ABDULALI REPORTED IN 90 I.T.R. PAGE 271 II . AMBIKA PRASAD THAKUR AND OTHERS V/S MAHARAJ KUMAR KAMAL SINGH AND OTHERS REPORTED IN 1966 AIR PAGE 605 SC III . C.I.T. V/S DR. M.K.E. MEMON REPORTED IN 248 I.T.R. PAGE 310 [BOM] IV . C.I.T. V/S HOTEL MARIYA REPORTED IN 332 I.T.R. PAGE 537 [KERALA ] IV . C.I.T. V/S HOTEL MARIYA REPORTED IN 332 I.T.R. PAGE 537 [KERALA ] 3 8 . IT MAY BE POINTED OUT THAT ALL THESE DECISIONS RELIED UPON BY THE LD. SPECIAL AR HAVE BEEN CONSIDERED BY THE T RIBUNAL . WHERE THE ASSESSMENT HAS BEEN MADE ON THE BASIS OF ADJUDICATING ORDER PASSED BY CCE, AURANGABAD, WHICH HAS BEEN SET - ASIDE BY THE THIRD MEMBER OF CESTAT, AND NO OTHER INVESTIGATION HAVING BEEN MADE BY THE INCOME - TAX DEPARTMENT AGAINST THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, WE FIND NO MERIT IN THE PLEA OF THE LD. SPECIAL AR FOR EXTRAPOLATING THE SALES OF YEAR RELYING ON THE P ETITION FILED BEFORE THE SETTLEMENT COMMISSION. FIRST OF ALL, IT WAS NEVER THE CASE OF THE DEPARTMENT DURING ASSESSMENT OR APPELLATE PROCEEDINGS AND EVEN NO SUCH ARGUMENT WAS RAISED BY THE LD. SPECIAL AR WHILE ARGUING THE APPEAL BEFORE THE TRIBUNAL. HE H AS TIME AND AGAIN RELIED ON HIS WRITTEN NOTE DATED 05.11.2014, WHICH WAS FILED AFTER THE CLOSE OF THE HEARING BEFORE THE TRIBUNAL AND ON THE PERUSAL OF THE SAID WRITTEN SUBMISSIONS, IT IS APPARENT THAT NO SUCH PLEA OF EXTRAPOLATION OF FIGURES OF SUPPRESSED SALES ON THE BASIS OF THE RATIO 33 M A NO. 17 /PN/201 5 LAID DOWN IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEAR 2006 - 07 WAS EVER RAISED BEFORE THE TRIBUNAL. ON THE OTHER HAND, THE LD. SPECIAL AR HAD STATED AS UNDER: - REGARDING APPLICABILITY OF VARIOUS CASE LAWS RELIED UP ON BY THE ASSESSEE COMPANY A.C.I.T. V/S SRJ PETTY STEELS [P] LTD REPORTED IN 137 T.T.J.[PUNE] 627 A LOUD SOUND HAS BEEN MADE BY THE ASSESSEE COMPANY THAT THE AFORESAID DECISION IN ITS OWN CASE CLINCHES THE ISSUES INVOLVED IN THE PRESENT APPEALS IN ITS FAVOUR. IT IS RESPECTFULLY SUBMITTED THAT IT IS ONLY THE WISHFUL THINKING OF THE ASSESSEE COMPANY. THE SAID CASE IS CLEARLY DISTINGUISHABLE ON FACTS AND THE DISTINGUISHING MAIN POINTS CAN BE SUMMARIZED AS UNDER: CAN BE SUMMARIZED AS UNDER: I . THE SAID CASE PERTAINS TO THE ASSESSMENTS FRAMED U/S 153A OF THE I. T. ACT 1961, IN PURSUANCE OF SEARCH AND SEIZURE ACTIONS CARRIED OUT ON 17/03/2006 IN THE RESIDENTIAL AND BUSINESS PREMISES OF THE SRJ GROUP. II . NO IOTA OF EVIDENCE WAS FOUND IN THE PREMISES OF THE ASSESSEE COMPANY SHOWING SUPPRESSI ON OF SALES. III . CERTAIN LOOSE PAPERS EVIDENCING UNACCOUNTED SALE OF MS ROUNDS AND MS INGOTS/BILLETS WERE FOUND AT THE RESIDENCE OF PEETY FAMILY. THE DETAILS OF PAPERS ARE GIVEN ON PAGE NOS. 5 & 6 OF THE DECISION. THE TOTAL SUPPRESSED SALES WORKED OUT TO RS .98,00,274.00 ON WHICH G.P. @ 1.5% SALES WORKED OUT TO RS .98,00,274.00 ON WHICH G.P. @ 1.5% IE.RS.1,50,000.00 WAS OFFERED BY SHRI SURENDRA S.PEETY AS HIS UNDISCLOSED INCOME. IV . THE CONCLUSIONS OF LEARNED C.I.T.[A] ARE GIVE N ON PAGE 9 AND THE RELEVANT IMPORTANT CONCLUSIONS ARE IN PARA 20[G]&[H] WHICH READ AS UNDER : 20[G] NO INCRIMINATING MATERIAL WHATSOEVER HAS BEEN FOUND AS A RESULT OF SEARCH IN RESPECT OF A.YRS. 2000 - 01 TO 2005 - 06, HENCE A.O'S SUSPICION AND APPREHENSIONS WITH REGARD TO RESULTS REFLECTED IN THE BOOKS OF ACCOUNTS, HOLDING THE SAME AS NOT RELIABLE , ARE HELD AS MISPLACED AND ILL - FOUNDED. 20[H] AS A RESULT OF NO EVIDENCE IN RESPECT OF A.YRS. 2000 - 01 TO 2005 - 06 OF SUPPRESSED PRODUCTION, ADDITIONS ON ACCOUNT OF THE SAME IN THESE OF SUPPRESSED PRODUCTION, ADDITIONS ON ACCOUNT OF THE SAME IN THESE YEARS ARE DELETED IN TOTO. V . BASED ON THE EVIDENCES AND ARGUMENTS, THE H ON. BENCH GAVE ITS FINDINGS IN PARA NOS.22 TO 44 OF THE DECISION. THE RELEVANT PARAS ARE REPRODUCED HEREUNDER: PARA 32 ON PAGE 13 READS AS UNDER: THE MATTER OF FLUCTUATING CONSUMPTION OF ELECTRICITY CAN BY NO MEANS BE SAID TO BE A FINDING OF SEARCH SINCE ALL DETAILS REGARDING ELECTRICITY VIS - A VIS PRODUCTION WERE BEFORE THE DEPARTMENT. IF THE DEPARTMENT HAD ANY DOUBTS REGARDING THE SAME, IT COULD HAVE BEEN RAISED DURING THE REGULAR ASSESSMENTS AND NOT IN THE ASSESSMENT PROCEEDINGS UNDER S.153A OF THE ACT. WHEN NOTHING INCRIMINATING WAS FOUND IN THE COURSE OF SEARCH RELATING TO ANY NOTHING INCRIMINATING WAS FOUND IN THE COURSE OF SEARCH RELATING TO ANY OF THESE ASSESSMENT YEARS, THE ASSESSMENTS FOR SUCH YEARS COULD NOT BE DISTURBED ON THIS GROUND. VI. PARA NO. 33 ON PAGE NO. 13 READS AS UNDER: IN VIEW OF THE ABOVE FACTUAL AND LEGAL POSITION WE FIND THAT THE ADDITIONS IN QUESTION IN ASST.YRS. 34 M A NO. 17 /PN/201 5 2000 - 01 TO 2005 - 06 ARE NOT CORRESPONDING TO THESEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH. THE RELEVANT I. T. RETURNS FOR THE SAID YEARS WERE FILED PRIOR TO THE SEARCH IN NORMAL COU RSE DISCLOSING THE PARTICULARS OF SUBJECT - MATTERS WERE ALREADY ON RECORD. THE RETURNS HAVE ALREADY BEEN ACCEPTED AND NO ASSESSMENT AS SUCH COULD BE SAID TO BE PENDING ON THE DATE OF INITIATION OF SEARCH AND ABATED IN THE LIGHT OF THE PROVISIONS OF S.153A VII. IT IS RESPECTFULLY SUBMITTED THAT THE HON. BENCH VIDE PARA NOS.29 TO 30 OF THE DECISION HAS LUCIDLY EXPLAINED THE PROVISIONS OF ASSESSMENTS TO BE MADE ON SEARCH CASES UNDER SECTION 153A OF THE L T. ACT 1961 AND THE SAME MAY PLEASE BE REFERRED. VII I. IT IS FURTHER SUBMITTED THAT THE VIEW EXPRESSED BY THE HON. BENCH ABOUT ASSESSMENTS UNDER SECTION 153A AND THE SCOPE OF SUCH ASSESSMENTS HAS BEEN EXPLAINED IN SIMILAR FASHION BY THE HON. BOMBAY HIGH COURT NAGPUR BENCH IN THE CASE OF C.LT. V/S MURLI AGR O PRODUCTS LTD IN INCOME TAX APPEAL NO. 36 OF 2009 DECIDED ON 29/ 10/2010. THIS CASE WAS REFERRED BY THE UNDERSIGNED DURING HIS ARGUMENTS AND THE SAME HAS BEEN RELIED UPON BY THE HON. LT.A.T. PUNE BENCHES PUNE IN VARIOUS CASES REPRESENTED BY THE UNDERSIGNE D. HENCE COPY OF THE SAME WAS NOT FURNISHED AND THE LEARNED A.R. ALSO DID NOT REQUEST FOR COPY OF THE SAID DECISION. IN ANY CASE THE SAID DECISION IS AVAILABLE IN PUBLIC DOMAIN. IX. THE PRESENT APPEALS PERTAIN TO THE REASSESSMENT PROCEEDINGS WHICH ARE D IFFERENT THAN THE SEARCH ASSESSMENTS UNDER SECTION 153A OF THE ACT. X. THUS THE FACTS OF THE AFORESAID CASES WERE DIFFERENT AND THE CONTENTION OF THE LEARNED A.R. THAT THE ISSUES INVOLVED IN THE PRESENT APPEALS ARE SQUARELY COVERED BY THE SAID DECISION I S ERRONEOUS AND BEING ILL FOUNDED THE SAME MAY PLEASE BE REJECTED. MAY PLEASE BE REJECTED. TAX APPEAL NO. 30 OF2011 THE C.I.T. V /S SRJ PEETY STEELS PVT LTD AND OTHER CONNECTED APPEALS DECIDED BY THE HON. BOMBAY HIGH COURT AURANGABAD THESE APPEALS WERE FILED BY THE DEPARTMENT AGAINST THE DECISIONS IN THE CASE OF THE ASSESSEE COMPANY DECIDED BY THE HON. I. T. A T. PUNE REPORTED IN 137 T.T.J. PAGE 627 REFERRED AND DISTINGUISHED HEREINABOVE. IT IS THE CONTENTION OF THE ASSESSEE COMPANY THAT THE HON. BOMBAY HIGH COURT HAS UPHELD TH E DECISION OF THE HON. PUNE ITAT WHEREIN IT WAS HELD THAT THE ESTIMATION OF SUPPRESSED PRODUCTION CANNOT BE MADE ON HYPOTHETICAL CONSUMPTION OF ELECTRICITY. ON CAREFUL READING OF THE SAID DECISION THE FALSITY OF THE CONTENTION OF THE ASSESSEE COMPANY CAN BE EASILY NOTICED. THE RATIO OF THE DECISION OF THE HON. BOMBAY HIGH COURT CAN BE EASILY NOTICED FROM THE CONTENTS OF PARA NO.4 OF THE DECISION. IN FACT THIS DECISION IS ON SIMILAR LINES WITH THE DECISION IN THE CASE OF MURLI AGRO REFERRED SUPRA WHEREIN T HE ISSUES INVOLVED WERE ENTIRELY DIFFERENT. IT IS SUBMITTED THAT THE ASSESSEE COMPANY IS MAKING THE MISLEADING ARGUMENTS WHICH DESERVE TO BE REJECTED . 3 9 . THE PERUSAL OF THE ABOVE SAID SUBMISSIONS FILED BY THE LD. SPECIAL AR REFLECT THAT HIS CASE BEFO RE THE TRIBUNAL WHILE ARGUING THE MAIN APPEAL WAS THAT THE VIEW EXPRESSED BY THE TRIBUNAL IN 137 TTJ 627 (PUNE) WAS ABOUT THE ASSESSMENT UNDER SECTION 153A OF THE ACT AND SINCE THE APPEALS AGAINST THE PRESENT ASSESSEE PERTAIN 35 M A NO. 17 /PN/201 5 TO THE ASSESSMENT PROCEEDINGS, WHICH WERE DIFFERENT FROM SUCH ASSESSMENTS AND THUS, THE FACTS OF THE AFORESAID CASE WERE DIFFERENT AND THE CONTENTION OF THE LD. SPECIAL AR THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL WAS SQUARELY COVERED BY THE SAID DECISION, WAS ERRONEOUS AND ILL - FOU NDED. IN RESPECT OF THE RELIANCE OF THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEAR 2006 - 07, THE LD. SPECIAL AR STRESSED THAT THE RATIO OF THE SAID DECI SION CANNOT BE APPLIED. 40 . NOW, BEFORE US WHILE ARGUING THE MISCELLANEOUS APPLICATION, THE LD. SPECIAL AR HAS VEHEMENTLY STRESSED THAT THE TRIBUNAL HAS ERRED IN NOT EXTRAPOLATING THE SALES FOR THE ENTIRE YEAR BASED ON THE EVIDENCE I.E. THE PETITION BEF ORE THE SETTLEMENT COMMISSION AND HENCE, THERE IS AN ERROR IN ASSUMPTION OF FACTS AND MISTAKE OF LAW IN THIS REGARD. WE FIND NO MERIT IN THE SAID ARGUMENTS RAISED BY THE LD. SPECIAL AR BEFORE US DURING THE COURSE OF HEARING OF MISCELLANEOUS APPLICATION AN D THE SAME IS BEYOND THE SCOPE OF CONSIDERATION UNDER THE PURVIEW OF SECTION AN D THE SAME IS BEYOND THE SCOPE OF CONSIDERATION UNDER THE PURVIEW OF SECTION 254(2) OF THE ACT. 4 1 . AS REFERRED TO BY US IN THE PARAS HEREINABOVE, SUCH A PLEA COULD HAVE BEEN RAISED BY THE DEPARTMENT DURING THE APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL FO R THE FIRST TIME. HOWEVER, IN THE ABSENCE OF SUCH PLEA BEING RAISED DURING THE COURSE OF HEARING OF THE MAIN APPEAL, RAISING OF SUCH AN ARGUMENT BEFORE THE TRIBUNAL VIDE MISCELLANEOUS APPLICATION IS SHEER WASTE OF JUDICIAL TIME AND PROCESS OF LAW. THIS I S A FIT CASE FOR LEVY OF COSTS AGAINST THE DEPARTMENT FOR RAISING FRIVOLOUS AND VEXATIOUS ARGUMENTS AND PLEAS ABOUT ESTIMATION OF INCOME, WHICH WERE NEVER RAISED DURING THE COURSE OF HEARING OF THE APPEAL BEFORE THE TRIBUNAL. HOWEVER, NO COST IS BEING LEV IED AGAINST THE REVENUE AT THIS JUNCTURE. 4 2 . BEFORE CLOSING THE ISSUE, IN THE INTEREST OF JUSTICE, WE WOULD LIKE TO ADJUDICATE THE ISSUE OF EXTRAPOLATION OF SUPPRESSED SALES ON ACCOUNT OF SETTLEMENT PETITION MADE BY THE ASSESSEE. ADMITTEDLY, DURING THE COURSE OF SEARCH AND SEIZURE 36 M A NO. 17 /PN/201 5 OPERATION ON CERTAIN BROKERS, EVIDENCES OF CLANDESTINE REMOVAL OF MATERIAL WITHOUT PAYMENT OF EXCISE DUTY, WAS FOUND AGAINST THE ASSESSEE. HOWEVER, NO SEARCH AND SEIZURE OPERATION WAS CARRIED OUT AGAINST THE ASSESSEE, BUT THE ASSESSEE CLAIMS THAT IN ORDER TO BUY PEACE OF MIND, IT HAD DECLARED THE SAID AMOUNT BY WAY OF PETITION BEFORE THE SETTLEMENT COMMISSION. THE SAID OFFER MADE BY THE ASSESSEE WAS ACCEPTED IN TOTO. IT MAY BE NOTED THAT THE EXCISE AUTHORITIES HAVE THE POWER TO RE - VISIT THE OFFER MADE BY THE ASSESSEE, IN CASE, ANY ADVERSE MATERIAL IS AVAILABLE AGAINST THE PERSON MAKING THE OFFER. IT MAY ALSO BE NOTED THAT THE SETTLEMENT ACCEPTED IN THE HANDS OF THE ASSESSEE IS FOR THE FINANCIAL YEAR AND IS NOT RESTRICTED TO T HE NUMBER OF DAYS FOR WHICH IT HAS OFFERED. IN OTHER WORDS, ONCE A PERSON MAKES A SETTLEMENT PETITION FOR A PARTICULAR YEAR ON ACCOUNT OF THE EVIDENCE FOUND FOR PART OF THE PERIOD AND ONCE THE PETITION IS ACCEPTED IN THE HANDS OF THE ASSESSEE, NO FURTHER ADDITION CAN BE MADE ON ACCOUNT OF ALLEGED CLANDESTINE REMOVAL OF GOODS OR SUPPRESSED SALES, IN THE ABSENCE OF EVIDENCE FOR THE BALANCE PERIOD. THE ABOVE SAID RATIOS HAVE BEEN LAID DOWN IN CHATTISGARH STEEL CASTING PERIOD. THE ABOVE SAID RATIOS HAVE BEEN LAID DOWN IN CHATTISGARH STEEL CASTING PVT. LTD. V . ACIT (SUPRA), HONBLE BOMBA Y HIGH COURT IN CIT VS. C.J. SHAH & CO. (SUPRA), HONBLE DELHI HIGH COURT IN CIT VS. ANAND KUMAR DEEPAK KUMAR (SUPRA). THE LD. SPECIAL AR HAD PLACED RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN CIT VS. DR.M.K.E. MEMON (SUPRA) WHILE ARGUING THE ISSUE NO.2 I.E. ESTIMATION OF SUPPRESSED PRODUCTION IS MIS - PLACED . T HE HONBLE BOMBAY HIGH COURT IN THE SAID DECISION CONSIDERED THE SCOPE OF ASSESSMENT UNDER CHAPTER XIV - COURT IN THE SAID DECISION CONSIDERED THE SCOPE OF ASSESSMENT UNDER CHAPTER XIV - B AND HELD THAT WHAT IS TO BE ASSESSED UNDER THE SAID CHAPTER IS UNDISCLOSED INCOME OF THE BLOCK PERIOD AND NOT THE TOTAL INCOME OR LOSS OF THE PREVIOUS YEAR REQUIRED TO BE ASSESSED UNDER REGULAR ASSESSMENT UNDER SECTION 143(3) OF THE ACT. THE HONBLE BOMBAY HIGH COURT HELD THAT SUCH REGULAR ASSESSMENT STAND S ON A DIFFERENT FOOTING IN C ONTRAST TO THE EXERCISE UNDERTAKEN BY THE ASSESSING OFFICER UNDER CHAPTER XIV - B, WHERE THE ASSESSING OFFICER HAD TO ASSESS ONLY THE UNDER CHAPTER XIV - B, WHERE THE ASSESSING OFFICER HAD TO ASSESS ONLY THE UNDISCLOSED INCOME. HOWEVER, THE HONBLE BOMBAY HIGH COURT FURTHER HELD THAT UNDER CHAPTER XIV - B, THE ASSESSING OFFICER CAN NOT ESTIMATE THE UNDISCLOSED 37 M A NO. 17 /PN/201 5 INCOME ON AN ARBITRARY BASIS. WE FIND NO MERIT IN THE PLEA RAISED BY THE LD. SPECIAL AR IN THIS REGARD AS THE FACTS OF THE SAID CASE ARE DIFFERENT FROM THE FACTS OF THE PRESENT CASE. 4 3 . E VEN ON MERITS, THE REVENUE HAS NO C ASE AGAINST THE ASSESSEE. THE RELIANCE PLACED UPON BY THE LD. SPECIAL AR ON THE RATIO LAID DOWN IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEAR 2006 - 07 IS MISPLACED AS THE ADDITION IN THE HANDS OF THE ASSESSEE IN THAT YEAR WAS MADE ON ACCOUNT OF SEARCH AND SEIZURE OPERATIONS CARRIED OUT BY THE INCOME - TAX DEPARTMENT, WHEREIN SALES OUTSIDE BOOKS WERE FOUND FOR FEW DAYS. HOWEVER, NO INDEPENDENT INVESTIGATION / INQUIRY BY THE INCOME - TAX DEPARTMENT HAS BEEN MADE BEFORE COMPLETING ASSESSMENT PROCEEDINGS AGAI NST THE ASSESSEE. ANOTHER ASPECT OF THE ISSUE IS THAT THE PETITION BEFORE THE SETTLEMENT COMMISSION HAS BEEN MADE BY THE ASSESSEE IN ASSESSMENT YEAR 2007 - 08 ONLY AND NO SUCH PETITION FOR CLANDESTINE REMOVAL OF MATERIAL WITHOUT PAYMENT OF EXCISE DUTY HAS B EEN MADE FOR ASSESSMENT YEAR 2008 - 09. THE PAYMENT OF EXCISE DUTY HAS B EEN MADE FOR ASSESSMENT YEAR 2008 - 09. THE ASSESSEE HAD OFFERED THE ADDITIONAL INCOME ON ACCOUNT OF SUCH CLANDESTINE REMOVAL OF GOODS BEFORE THE ASSESSING OFFICER FOR ASSESSMENT YEAR 2007 - 08 AND THE SAME WAS THE REASON FOR REOPENING THE ASSESSMENT UNDER SE CTION 148 OF THE ACT. ONCE A PARTICULAR FACT WAS AVAILABLE WITH THE ASSESSING OFFICER, WHICH WAS TAKEN NOTE OF AND CONSIDERED BY HIM DURING THE ASSESSMENT PROCEEDINGS, BUT THE ADDITION HAVING BEEN MADE ON ONLY ON THE ISSUE OF ERRATIC CONSUMPTION OF ELECTR ICITY, WHICH IS THE BASIS OF ORDER PASSED BY CCE, AURANGABAD, WHO WAS ALSO IN KNOWLEDGE OF THE CLANDESTINE REMOVAL OF MATERIAL AND THE INVESTIGATION CARRIED OUT BY THE DGCEI AND THE PETITION BEFORE THE SETTLEMENT COMMISSION, EVEN THE THIRD MEMBER OF CESTAT WAS AWARE OF ALL THESE PROCEEDINGS, BUT SINCE THE SETTLEMENT PETITION FILED BY THE ASSESSEE HAD BEEN ACCEPTED IN TOTO BY THE SETTLEMENT COMMISSION, NO FURTHER ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE ON THIS GROUND, IN THE ABSENCE OF ANY INQUIR Y OR INVESTIGATION BY THE ASSESSING OFFICER. ACCORDINGLY, THE RELIANCE PLACED UPON BY THE LD. SPECIAL AR IN 38 M A NO. 17 /PN/201 5 ASSESSEES OWN CASE REPORTED IN 137 TTJ 627 [PUNE] IS MIS - PLACED AND THERE IS NO MERIT IN THE ARGUMENTS OF THE LD. SPECIAL AR IN THIS REGARD. 44 . FURTHER, IT MAY BE PUT ON RECORD THAT THE LD. SPECIAL AR HAS DURING THE COURSE OF HEARING OF BUNCH OF APPEALS IN SHREE OM ROLLING MILLS PVT. LTD. AND O THERS IN ITA NOS.125 & 127/PN/2012 , ITA NOS.430 & 431/PN/2012 AND OTHERS HAS RAISED THIS PLEA OF EXTRAP OLATION, WHICH HAS BEEN ADJUDICATED BY US BY ORDER OF EVEN DATE AND SAME HAS BEEN DISMISSED. 4 5 . THE LD. SPECIAL AR VEHEMENTLY RELIED ON THE RATIO LAID DOWN BY THE HONBLE ALLAHABAD HIGH COURT IN ITO & ANR. VS ITAT, DELHI & ANR. (1965) 58 ITR 634 (ALL), W HEREIN THE TRIBUNAL HAD INADVERTENTLY OMITTED TO DEAL WITH A PARTICULAR GROUND OF APPEAL OR CONTENTION OF THE ASSESSEE. AS POINTED OUT IN THE PARAS HEREINABOVE, THE TRIBUNAL IN THE PRESENT APPEAL HAD DEALT WITH ALL ARGUMENTS RAISED BY THE REVENUE AND THER E IS NO MERIT IN THE SAID RELIANCE PLACED UPON BY THE LD. SPECIAL AR. EVEN AND THER E IS NO MERIT IN THE SAID RELIANCE PLACED UPON BY THE LD. SPECIAL AR. EVEN OTHERWISE, THE HONBLE BOMBAY HIGH COURT, WHICH IS THE JURISDICTIONAL HIGH COURT, IN CIT VS. RAMESH ELECTRIC & TRADING CO. (SUPRA) HAD HELD THAT THE FAILURE BY THE TRIBUNAL TO CONS IDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT FROM THE RECORD. 46. THE RATIO LAID DOWN IN NIRANJAN & CO. LTD. VS. ITAT & OTHERS (SUPRA) IS ON THE PROPOSITION THAT THERE IS NO POWER TO REVIEW OR RE - HEAR T HE APPEAL . THE SAID DECISION IN FACT IS IN FAVOUR OF THE ASSESSEE . 4 7 . SIMILAR PROPOSITION HAS BEEN LAID DOWN IN C.I.T. V/S MOOL CHAND SHYAM LAL (SUPRA) THAT WHERE IN A PARTICULAR CASE, SOME ERROR HAD CREPT IN THE ORDER OF THE TRIBUNAL, WHICH DOES NOT RE QUIRE ANY DEBATE WHICH IS APPARENT ON THE FACE OF THE RECORD, COULD BE CORRECTED IN THE EXERCISE OF POWER UNDER SECTION 254(2) OF THE ACT. THE LD. SPECIAL AR FURTHER RELIED ON THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN CIT VS. MITHALAL ASHOK KUM AR (1986) 158 ITR 755 (MP), WHEREIN IT WAS 39 M A NO. 17 /PN/201 5 HELD THAT WHERE THE TRIBUNAL HAD COMMITTED CERTAIN MISTAKES IN NOT CONSIDERING THE MATERIAL, WHICH WAS ALREADY ON RECORD, THE SAME COULD BE RECTIFIED AND COULD NOT BE SAID TO BE A CASE OF DEBATE IN THE STRICT SENS E OF TERM. HOWEVER, AS POINTED OUT BY US IN THE PARAS HEREINABOVE, THE LD. SPECIAL AR HAS FAILED TO ESTABLISH ITS CASE OF THE TRIBUNAL IN NOT CONSIDERING ANY MATERIAL AND IN THE ABSENCE OF THE SAME, NO POWER CAN BE EXERCISED UNDER SECTION 254(2) OF THE AC T. IN THE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE HOLD THAT THE MISCELLANEOUS APPLICATION MOVED BY THE REVENUE IS NOT MAINTAINABLE AND THE SAME IS DISMISSED. 4 8 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISPOSED OF F AS ABOVE . ORDER PRONOUNCED ON THIS THE 15 TH DAY OF JULY , 2015. SD/ - SD/ - SD/ - SD/ - ( R.K. PANDA ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER PUNE ; DATED : 15 TH JULY , 2015. / GCVSR / COPY OF THE O RDER IS FORWARDED TO : 1 ) THE ASSESSEE; 2 ) THE DEPARTMENT; 3 ) THE CIT(A) , AURANGABAD ; 4 ) THE CIT, AURANGABAD ; 5 ) THE DR A BENCH, I.T.A.T., PUNE; 6 ) GUARD FILE. / BY ORDER , //TRUE COPY// / SR. PRIVATE SECRETARY , / ITAT, PUNE
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