ITO 17(1)(3), V. BOON INDUSTRIES,

MA 337/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3271 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2000-2001
• Appeal Filed On: 14-07-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIVEK PERAMPURNA
• Assessee Lawyers: RAJKUMAR JAJU
• Keywords: Reopening of assessment; Opportunity of being heard; Question of law
• Section: 260A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE HONBLE S/ SHRI D. MANMOHAN , VICE - PRESIDENT AND B.R.BASKARAN (AM) , . , . . , MISC.APPL ICATION NO S . 337 TO 341 /MUM/20 14 ARISING OUT OF I.T.A. NO. 4059 TO 4063 /MUM/20 09 ( / ASSESSMENT YEAR S : 2000 - 2001 TO 2004 - 05 ) INCOME TAX OFFICER 17(1)(3), PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 / VS. M/S BOON INDUSTRIES 12A, A MYNABAD BUILDING, LALBAUG 2 ND FLOOR, NESBIT ROAD, AGA HALL, MAZGAON, MUMBAI - 400010 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./ PAN/GIRNO.: AA CFB6885A / APP LICANT BY : S HRI VIVEK PE RAMPURNA / RESPONDENT BY : S/ SHRI PRAKASH G JHUNJHUNWALA AND RAJKUMAR JAJU / DATE OF HEARING : 27.3 .2015 / DATE OF PRONOUNCEMENT : 8 . 7 .2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER : THE REVENUE HAS FILED THESE MISCELLANEOUS PETITIONS SEEKING RECALL OF THE COMMON ORDER DATED 15 - 07 - 2010 PASSED BY THE TRIBUNAL IN ITA NOS. 4059 TO 4063/MUM/2009 RELATING TO ASSESSMENT YEARS 2000 - 01 TO 2004 - 05 AGAINST THE APPEALS FILED BY THE ASSESSEE. MA NOS.337 TO 341/M/2014 2 2. THE ASSESSEE HAD FILED APPEALS CHALLENGING THE ORDERS PASSED BY LD CIT(A) FOR THE ABOVE SAID YEARS, WHEREIN HE HAD CONFIRMED THE VALIDITY OF RE - OPENING OF ASSESSMENTS AND GRANTED PARTIAL RELIEF IN RESPECT O F ADDITIONS OF GROSS PROFIT MADE BY THE AO TOWARDS SUPPRESSED SALES. THE TRIBUNAL CONFIRMED THE ORDER OF LD CIT(A) IN UPHOLDING THE VALIDITY OF RE - OPENING OF THE ASSESSMENTS. HOWEVER, THE TRIBUNAL DELETED THE ADDITION OF GROSS PROFIT MADE TOWARDS SUPPRES SION OF SALES IN ALL THE YEARS REFERRED ABOVE. 3. IN THE MISCELLANEOUS PETITIONS, THE REVENUE HAS POINTED OUT THAT THE ASSESSING OFFICER HAD RECEIVED INFORMATION FROM THE ELECTRICITY DEPARTMENT ABOUT POWER THEFT ALLEGED TO HAVE BEEN COMMITTED BY THE ASS ESSEE HEREIN BY TAMPERING THE ELECTRICITY METER. THE POWER THEFT REPORTED BY THE ELECTRICITY DEPARTMENT PERTAINED TO THE PERIOD FROM FEBRUARY, 2001 TO NOVEMBER, 2003. THE QUANTUM OF POWER THEFT WAS ESTIMATED BY THE ELECTRICITY DEPARTMENT BASED UPON THE H ORSE POWER OF THE MACHINERY USED BY THE ASSESSEE. BASED UPON THE POWER CONSUMPTION DETAILS, THE AO ESTIMATED THE PRODUCTION SUPPRESSED BY THE ASSESSEE AND ALSO ESTIMATED THE SUPPRESSED GROSS PROFIT AND ADDED THE SAME. 4. THE REVENUE HAS FURTHER STATED TH AT THE ASSESSEE HAD ALSO SUPPRESSED THE ACTUAL ELECTRICITY PAYMENTS MADE BY IT. FOR EXAMPLE, IN THE YEAR RELEVANT TO THE ASSESSMENT YEAR 2000 - 01, THE ASSESSEE HAD PAID ELECTRICITY CHARGES OF RS.4,99,363/ - , BUT IT HAS ACCOUNTED ONLY RS.50,000/ - IN ITS BOOK S OF ACCOUNT. IT IS STATED THAT THE ASSESSEE HAS ACCEPTED THE FACT OF SUPPRESSION OF ELECTRICITY CHARGES IN ITS BOOKS OF ACCOUNT. THE REVENUE HAS FURTHER POINTED OUT THAT THE ADDITION MADE BY THE ASSESSING OFFICER ALSO INCLUDED THE SUPPRESSION OF PRODUCTI ON/SALES ON ACCOUNT OF ELECTRICITY CHARGES ACTUALLY SUPPRESSED BY THE ASSESSEE. MA NOS.337 TO 341/M/2014 3 5. THE REVENUE HAS POINTED OUT THAT THE ADDITION PERTAINING TO POWER THEFT WAS MADE ONLY IN AY 2001 - 02 TO 2004 - 05. IN ASSESSMENT YEAR 2000 - 01, THE AO DID NOT MAKE ANY ADDITIO N TOWARDS POWER THEFT. HOWEVER, THE TRIBUNAL HAS PROCEEDED TO DELETE THE ADDITION MADE IN AY 2000 - 01 ON THE ERRONEOUS PRESUMPTION THAT THE ADDITION WAS MADE IN THAT YEAR ON ACCOUNT OF POWER THEFT, WHICH IS AGAINST THE FACTS AVAILABLE ON RECORD. ACCORDING LY IT WAS POINTED OUT THAT THE INCORRECT APPRECIATION OF FACTS HAS LED TO A MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRIBUNAL FOR AY 2000 - 01. 6. THE REVENUE HAS POINTED OUT THAT THE TRIBUNAL HAS PROCEEDED TO DELETE THE ADDITION OF GROSS PRO FIT MADE TOWARDS SUPPRESSED PRODUCTION/SALES IN AY 2001 - 02 TO 2004 - 05 ON THE REASONING THAT THE ASSESSEE HAS BEEN ACQUITTED FROM POWER THEFT CASE BY THE ADDITIONAL DISTRICT JUDGE. THE REVENUE HAS POINTED THAT THE ADDITION PERTAINING TO POWER THEFT HAS ALR EADY BEEN DELETED BY LD CIT(A) AND HENCE THE SAID ADDITION WAS NOT AGITATED BY THE ASSESSEE BEFORE THE TRIBUNAL. THE ASSESSEE HAS ONLY AGITATED THE ADDITION OF GROSS PROFIT MADE ON SUPPRESSED PRODUCTION/SALES ON ACCOUNT OF SUPPRESSED ELECTRICITY CHARGES. 7. ACCORDINGLY IT HAS BEEN POINTED OUT BY THE REVENUE THAT THE TRIBUNAL HAS DELETED THE ADDITION MADE IN AY 2001 - 02 TO 2004 - 05 ALSO ON WRONG APPRECIATION OF FACTS AND THE SAME HAS RESULTED IN A MISTAKE APPARENT FROM RECORD. ACCORDINGLY IT HAS BEEN PRAY ED THAT THE COMMON ORDER, REFERRED ABOVE, SHOULD BE RECALLED. 8. THE LD A.R APPEARING BEFORE US STRONGLY OPPOSED THE MISCELLANEOUS PETITIONS FILED BY THE REVENUE. HE SUBMITTED THAT THE TRIBUNAL HAS DELETED THE ADDITION BY ON PROPER REASONING BY OBSERVING THAT THE METHODOLOGY ADOPTED BY THE ASSESSING OFFICER TO DETERMINE THE ADDITION IS FRAUGHT WITH MA NOS.337 TO 341/M/2014 4 MANY FALLACIES. HE SUBMITTED THAT THE TRIBUNAL HAS DELETED THE ADDITIONS WITH THE OBSERVATIONS THAT MERE ALLEGED DISPARITY IN CONSUMPTION OF ELECTRICITY UNITS CANNOT BE A REASON FOR ESTIMATING THE TURNOVER, SINCE THE PRODUCTION QUANTITY WOULD DEPEND UPON VARIOUS OTHER FACTORS. ACCORDINGLY HE SUBMITTED THAT THE TRIBUNAL CANNOT BE CONSIDERED TO HAVE DELETED THE ADDITIONS ON WRONG APPRECIATION OF FACTS AS ALLEGED BY THE REVENUE. ACCORDINGLY HE SUBMITTED THAT THERE IS NO MERIT IN THE CONTENTIONS OF THE REVENUE THAT THERE ARE MISTAKES APPARENT FROM RECORD IN THE COMMON ORDER PASSED BY THE TRIBUNAL. HE SUBMITTED THAT THE TRIBUNAL IS EMPOWERED U/S 254(2) OF THE ACT TO CORRECT NON - DEBATABLE MISTAKES APPARENT FROM THE RECORD. THE LD A.R SUBMITTED THAT THE PRAYER MADE BY THE REVENUE IN THE IMPUGNED PETITIONS ARE DEBATABLE IN NATURE. ACCORDINGLY HE SUBMITTED THAT THE RELIEF SOUGHT BY THE REVENUE WOULD LEAD TO REVIEW OF THE ORDER PASSED BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SEC. 254(2) OF THE ACT. 9. THE LD A.R FURTHER SUBMITTED THAT THE REVENUE HAS ALREADY PREFERRED APPEALS BEFORE HONBLE HIGH COURT OF BOMBAY CHALLENGING THE ORDERS P ASSED BY THE TRIBUNAL. HE SUBMITTED THAT PRESENT MISCELLANEOUS APPLICATIONS ARE INVALID, SINCE THE APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF THE TRIBUNAL HAVE SINCE BEEN ADMITTED BY THE HONBLE HIGH COURT. FOR THIS PROPOSITION, THE LD A.R PLACED RELIANCE ON THE FOLLOWING CASE LAW: - ( A ) TATA COMMUNICATIONS LTD VS. CIT (124 TTJ 721)(MUM - SB) ( B ) R.W PROMOTION PVT LTD (MA NO.194/MUM/2013) ( C ) DCIT VS. PADAM PRAKASH (HUF) (121 TTJ 593)(DEL - SB) ACCORDINGLY, THE LD A.R CONTENDED THAT THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE LIABLE TO BE DISMISSED. MA NOS.337 TO 341/M/2014 5 10. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. THERE SHOULD NOT BE ANY DISPUTE WITH REGARD TO THE FACT THAT THE POWER GIVEN TO THE TRIBUNAL U/S 254(2) OF THE ACT IS LIMITED ONE AND THE T RIBUNAL IS EMPOWERED ONLY TO CORRECT THE MISTAKES APPARENT FROM THE RECORD. HENCE, IT IS NECESSARY TO EXAMINE AS TO WHETHER THE MISTAKES POINTED OUT BY THE REVENUE SHALL FALL IN THE CATEGORY OF MISTAKE APPARENT FROM RECORD. 11. BEFORE PROCEEDING FURTHER, IT IS NECESSARY TO ADDRESS THE CONTENTION OF THE LD A.R THAT THE TRIBUNAL IS NOT ENTITLED TO ADJUDICATE THE RECTIFICATION APPLICATION FILED U/S 254(2) OF THE ACT, IF THE APPEAL PREFERRED AGAINST THE ORDER OF THE TRIBUNAL HAD BEEN ADMITTED IN THE HIGH COURT . WE NOTICE THAT THE TRIBUNAL HAS PASSED AN ORDER AGAINST THE MISCELLANEOUS APPLICATION FILED BY M/S R.W. PROMOTIONS P LTD (SUPRA), WHEREIN THE TRIBUNAL HAS REFUSED TO ADJUDICATE THE SAID MISCELLANEOUS APPLICATION ON THE GROUND THAT THE ASSESSEE HAS FILED APPEAL BEFORE THE HIGH COURT. THE REASONING GIVEN BY THE TRIBUNAL WAS THAT THE JUDICIAL PROPRIETY DOES NOT ALLOW THE ASSESSEE TO SEEK EFFICACIOUS REMEDY SIMULTANEOUSLY BEFORE TWO AUTHORITIES. THE SAID ORDER WAS CHALLENGED BY M/S R.W PROMOTIONS P LTD BEFO RE THE HONBLE BOMBAY HIGH COURT. THE HONBLE HIGH COURT, VIDE ITS ORDER DATED 08 - 04 - 2015 PASSED IN W.P NO.2238 OF 2014, SET ASIDE THE ORDER OF THE TRIBUNAL AND DIRECTED THE TRIBUNAL TO DISPOSE OF THE MISCELLANEOUS APPLICATION FILED BY M/S R.W. PROMOTIONS P LTD (SUPRA) IN ACCORDANCE WITH THE LAW. 12. THE RELEVANT OBSERVATIONS MADE BY HONBLE HIGH COURT OF BOMBAY ARE EXTRACTED BELOW: - 9. AFTER HEARING BOTH SIDES AND PERUSING THE TWO LEGAL PROVISIONS, NAMELY UNDER SECTION 254 AS REPRODUCED ABOVE, A ND SECTION 260A OF THE INCOME TAX ACT, 1961 WE ARE OF THE VIEW THAT THE TRIBUNALS ORDER AND IMPUGNED IN THE WRIT PETITION CANNOT BE SUSTAINED. THIS COURT ALSO HAS CLARIFIED THE LEGAL POSITION IN AN ORDER PASSED COPY OF WHICH IS ANNEXED AT PAGE 146 OF THE PETITION PAPER BOOK. WE HAVE NOTED THAT SUCH A POWER IS POSSESSED BY THE COURT OR TRIBUNAL AND EVEN AFTER IT DISPOSES OF THE MAIN MATTER AND APPLICATION OF THE MA NOS.337 TO 341/M/2014 6 NATURE MADE AND TO SEEK RECTIFICATION OR CORRECTION OF AN APPARENT MISTAKE CAN BE ENTERTAINED. THE LEGAL PROVISION BEFORE US IS PLAIN AND CLEAR. SUB - SECTION (2) OF SECTION 254 ENABLES THE TRIBUNAL TO ENTERTAIN THE APPLICATION OF THE ABOVE NATURE BUT WHAT ORDERS OUGHT TO BE PASSED ON SUCH AN APPLICATION DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE. NO GENERAL RULE CAN BE LAID DOWN IN THAT BEHALF. THE TRIBUNAL CAN RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND AMEND ITS ORDER PASSED UNDER SECTION (1) OF SECTION 254. IF THE AMENDMENT HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE, THEN, SUCH AN AMENDMENT SHALL NOT BE MADE UNDER THIS SUB - SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASON ABLE OPPORTUNITY OF BEING HEARD. WE ARE NOT CONFRONTED WITH SUCH A SITUATION. WHAT WE ARE CALLED UPON TO DECIDE IS THE CORRECTNESS OF THE VIEW TAKEN BY THE TRIBUNAL AND THAT THE JUDICIAL PROPRIETY DOES NOT ALLOW THE PETITIONER - ASSESSEE TO SEEK A FULL REM EDY SIMILAR BEFORE TWO AUTHORITIES AND IN PARTICULAR WHEN THE ISSUE IS PENDING FOR ADMISSION BEFORE HIGHER FORUM. 10. THE LEAST THAT CAN BE SAID ABOUT THE UNDERSTANDING OF THE LEGAL PROVISION BY THE TRIBUNAL IS THAT IT IS EX FACIE INCORRECT AND ERRONEOU S. MERELY BECAUSE THE ASSESSEE HAS CHALLENGED THE ORDER OF THE TRIBUNAL IN AN APPEAL UNDER SECTION 260A OF THE INCOME TAX ACT, 1961 BEFORE THE HIGH COURT DOES NOT MEAN THAT THE POWER UNDER SECTION (2) OF SECTION 254 CANNOT BE INVOKED EITHER BY THE ASSESSEE OR BY THE REVENUE/ASSESSING OFFICER. SUCH A POWER ENABLES THE TRIBUNAL TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND MAKE AMENDMENTS. THAT IN A GIVEN CASE WOULD NOT ONLY SAVE PRECIOUS JUDICIAL TIME OF THE TRIBUNAL BUT EVEN OF THE HIGHER COURT. ON LY WHEN THE ASSESSEE OR THE ASSESSING OFFICER CALLS UPON THE TRIBUNAL TO UNDERTAKE AN EXERCISE WHICH IS NOT PERMISSIBLE WITHIN THE MEANING OF SECTION (2) OF SECTION 254 THAT THE TRIBUNAL CAN RELY ON THE PRINCIPLE OF JUDICIAL PROPRIETY OR ITS RELUCTANCE OR REFUSAL TO TAKE UPON ITSELF THE POWERS OF THE HIGHER COURT OF APPEAL. WE CAN UNDERSTAND IF THE TRIBUNAL HAD PASSED AN ORDER AFTER CONSIDERING THE APPLICATION MADE BY THE PETITIONER - ASSESSEE ON ITS MERITS AND IN ACCORDANCE WITH LAW. HOWEVER, THE REFUSAL O F THE TRIBUNAL TO GO AHEAD AND REJECT THE APPLICATION ONLY ON THE GROUND THAT THE PETITIONER - ASSESSEE HAS INVOKED THE APPELLATE POWERS OF HIGHER COURT CANNOT BE SUSTAINED. THAT IS CONTRARY TO THE PLAIN LANGUAGE OF THE TWO STATUTORY PROVISIONS AND WHICH HA VE BEEN BROUGHT TO OUR NOTICE. NOTHING CONTRARY HAVING BEEN POINTED OUT AND SUCH A VIEW OF THE TRIBUNAL MAY AFFECT MA NOS.337 TO 341/M/2014 7 AND PREJUDICIALLY THE INTEREST OF THE REVENUE THAT ALL THE MORE WE CANNOT SUSTAIN THE IMPUGNED ORDER. THE WRIT PETITION IS ALLOWED. THE PE TITIONERS MISC. APPLICATION SEEKING TO INVOKE THE POWERS UNDER SUB.SECTION (2) OF SECTION 254 OF THE INCOME TAX ACT, 1961 BEING MISC. APPLICATION NO.194/M/2013 SHALL NOW BE HEARD BY THE TRIBUNAL AND IT SHALL BE DECIDED IN ACCORDANCE WITH LAW.. IN VIEW O F THE DECISION OF THE HONBLE JURISDICTIONAL BOMBAY HIGH COURT, THE POWER GIVEN TO THE TRIBUNAL U/S 254(2) CAN BE EXERCISED BY THE TRIBUNAL, EVEN IF THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) HAS BEEN CHALLENGED U/S 260A OF THE ACT BEFORE THE HIGH COURT. 13. COMING TO THE MERITS OF THE MISCELLANEOUS PETITIONS FILED BY THE REVENUE, WE NOTICE THAT THE REVENUE HAS POINTED OUT THAT THE ADDITION OF GROSS PROFIT ON SUPPRESSED PRODUCTION/SALES WAS MADE BY THE ASSESSING OFFICER ON TWO COUNTS, VIZ: - (A) THE SUPPRESSION OF ELECTRICITY CHARGES (B) THE ALLEGED POWER THEFT. IT IS POINTED OUT THAT THE ISSUE RELATING TO ADDITION MADE ON ACCOUNT OF POWER THEFT IS NOT AVAILABLE IN ASSESSMENT YEAR 2000 - 01. THE ADDITION MADE IN AY 2000 - 01 PERTAINED TO THE GROSS PRO FIT ESTIMATED ON SUPPRESSED PRODUCTION ON ACCOUNT OF SUPPRESSION OF ELECTRICITY CHARGES. HOWEVER, IT IS NOTICED THAT THE TRIBUNAL HAS PROCEEDED TO DISPOSE OF ALL THE APPEALS BY ITS COMMON ORDER BY CONSIDERING THE FACT THAT THE ASSESSEE HAS BEEN ACQUITTED IN POWER THEFT CASE. 14. IN ASSESSMENT YEAR 2001 - 02 TO 2004 - 05, IT IS SUBMITTED BY THE REVENUE THAT THE ADDITION PERTAINED TO THE GROSS PROFIT ESTIMATED ON SUPPRESSED PRODUCTION ON ACCOUNT OF SUPPRESSION OF ELECTRICITY CHARGES. HOWEVER, IT IS NOTICED THA T THE TRIBUNAL HAS PROCEEDED TO DISPOSE OF THIS ISSUE ALSO UNDER THE ERRONEOUS IMPRESSION THAT THE SAME RELATED TO ALLEGED POWER THEFT. HENCE THE TRIBUNAL TOOK NOTE OF THE FACT THAT THE ASSESSEE MA NOS.337 TO 341/M/2014 8 HAS BEEN ACQUITTED FROM THE POWER THEFT CASE AND ACCORDINGLY DELETED THE ADDITION. 15. THE LD A.R SUBMITTED THAT THE REVENUE HAS FILED APPEALS BEFORE THE HONBLE HIGH COURT OF BOMBAY CHALLENGING THE ORDER PASSED BY THE TRIBUNAL. THE ASSESSEE HAS FURNISHED COPIES OF ORDER PASSED BY THE HONBLE HIGH COURT, WHEREIN FOLLOWING SUBSTANTIAL QUESTION OF LAW HAS BEEN ADMITTED: - WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE TRIBUNAL IS RIGHT IN SETTING ASIDE THE ORDER OF CIT(A) BY DELETING THE ADDITION MADE ON ACCOUNT OF TURNOVER, BASED ON THE DISPARITY IN EXPENDITURE ON ELECTRICITY AS PER BOOKS OF ACCOUNT AND ACTUAL PAYMENT OF ELECTRICITY BILLS? THE ABOVE QUESTION OF LAW ALSO SUPPORTS THE CASE OF THE REVENUE THAT THE ASSESSEE HAD CONTESTED THE ADDITION OF GROSS PROFIT COMPUTED ON SUPPR ESSED PRODUCTION/SALES ON ACCOUNT OF SUPPRESSED ELECTRICITY CHARGES. 16. THOUGH THE TRIBUNAL HAS DISCUSSED ABOUT THE FALLACIES IN THE METHODOLOGY ADOPTED BY THE ASSESSING OFFICER, YET THE ADDITION HAS BEEN DELETED MAINLY ON THE GROUND THAT THE ASSESSEE HA S BEEN ACQUITTED IN THE POWER THEFT CASE. FOLLOWING OBSERVATIONS MADE BY THE TRIBUNAL VINDICATES THIS POINT: - THE VERY FACT THAT THE LEARNED CIT(A) HAS NOT ACCEPTED THE ASSUMPTION OF THE ASSESSING OFFICER THAT YIELD WOULD BE OF 2.50 KG INDICATE THAT THE ASSESSING OFFICER HAS PROCEEDED TO ESTIMATE THE INCOME ARBITRARILY AND WITHOUT ANY BASIS BUT AN IDENTICAL MISTAKE WAS PERPETUATED BY THE CIT(A) BY ESTIMATING THE YIELD AT 1.75 KGS, WHICH ALSO HAS NO BASIS. WHEN AN EXPERTS REPORT IS PLACED ON RECORD, FI NDINGS THEREIN SHOULD BE GIVEN PREFERENCE AND LEARNED CIT(A) OUGHT NOT HAVE ESTIMATED THE PRODUCTION ON AN ARBITRARY BASIS BY ASSUMING THAT THE ADDITIONAL SESSIONS JUDGE, PALGHAR HAD ACQUITTED THE PARTNER BY MERELY GIVING BENEFIT OF DOUBT. A CAREFUL PERUS AL OF THE ORDER PASSED BY THE ADDITIONAL DISTRICT JUDGE, PALGHAR (WHICH WAS CONSIDERED BY EARLIER BENCHES OF ITAT) SHOWS THAT THE COURT HAS CATEGORICALLY NOTICED THAT THE SEALS WERE FOUND INTACT AND MA NOS.337 TO 341/M/2014 9 IT WOULD BE STRETCHING THINGS TOO FAR TO CONCLUDE THAT SO MEBODY HAS TAMPERED WITH THE METER. THE COURT HAS TAKEN JUDICIAL NOTICE OF THE FACT THAT WHENEVER GLASS GOES INSIDE THE METER IT CAN BE REPLACED IN THE ORIGINAL POSITION ONLY IF THE METER IS OPENED. IN OTHER WORDS, METER HAS NOT BEEN TAMPERED WITH. IN V IEW OF THE CATEGORICAL FINDINGS OF THE ADDITIONAL SESSIONS JUDGE, PALGHAR, AND ADMITTED BY THE ITAT IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEARS 1998 - 99 AND 1999 - 2000 AS WELL AS IN THE CASE OF SISTER CONCERN, WE ARE OF THE VIEW THAT IT WAS NOT A CA SE OF PILFERAGE OF ELECTRICITY IN WHICH EVENT THE VERY BASIS FOR MAKING THE ADDITION FALLS TO GROUND. HAVING MADE THE ABOVE STATED OBSERVATIONS, THE TRIBUNAL HAS ALSO MADE OBSERVATIONS ABOUT THE ESTIMATION OF TURNOVER ON THE BASIS OF DISPARITY IN CON SUMPTION OF ELECTRICITY. HOWEVER, THE POINT TO BE NOTED HERE IS THAT THE TRIBUNAL HAS DELETED THE ADDITION MAINLY ON THE GROUND THAT THE ASSESSEE HAS BEEN ACQUITTED FROM THE POWER THEFT CASE. 17. THE REVENUE HAS POINTED OUT IN THE MISCELLANEOUS PETITIO NS THAT THE ADDITION PERTAINING TO POWER THEFT HAS SINCE BEEN DELETED BY LD CIT(A) AND THE FIRST APPELLATE AUTHORITY HAS SUSTAINED ONLY THE ADDITION OF GROSS PROFIT MADE ON SUPPRESSED PRODUCTION/SALES ON ACCOUNT OF SUPPRESSION OF ELECTRICITY CHARGES. THUS , WE NOTICE THAT THE TRIBUNAL HAS DELETED THE ADDITION SUSTAINED BY LD CIT(A) BY CONSIDERING THE FACTS RELATING THE POWER THEFT CASE, WHICH IN OUR VIEW, IS A MISTAKE APPARENT FROM RECORD. THE TRIBUNAL, AS POINTED OUT BY THE REVENUE, HAS PROCEEDED TO DISPO SE OF THE ISSUE ON WRONG APPRECIATION OF FACTS. 18. HENCE, WE FIND MERIT IN THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE. ACCORDINGLY, WE RECALL ALL THE GROUNDS RELATING TO THE ADDITION OF GROSS PROFIT MADE ON ACCOUNT OF SUPPRESSION OF PRODUCTION/ SALES. IN THE MISCELLANEOUS PETITIONS, THE REVENUE HAS NOT POINTED OUT ANY MISTAKE ON THE DECISION RENDERED ON THE ISSUES RELATING TO VALIDITY OF REOPENING OF MA NOS.337 TO 341/M/2014 10 ASSESSMENTS. HENCE THE GROUNDS RELATING TO VALIDITY OF REOPENING OF ASSESSMENTS NEED NOT BE REC ALLED. THE REGISTRY IS DIRECTED TO POST THESE APPEALS FOR HEARING IN THE NORMAL COURSE. 19. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE PARTLY ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 8TH JU LY , 2015 . 8TH JU LY, 2015 SD SD ( . / D. MANMOHAN ) ( . . , / B.R. BASKARAN ) / VICE - PRESIDENT / ACCOUNTANT MEMBER MUMBAI : 8TH JU LY , 2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / T HE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. 6. , , / DR, ITAT, MUMBAI CONCERNED / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI