2015 (7) TMI 1264 - AT - Income Tax

Quantification of suppressed production - G.P. rate - Held that - Following the same parity of reasoning as per our order of even date in the case of Bhagyalaxmi Steel Alloys Pvt. Ltd. & Others relating to assessment years 2006-07 to 2008-09 and in view of the physical verification carried out by the authorities as referred to by us in the paras hereinabove and the consequent order of Division Bench of CESTAT in the case of present assessee s before us relating to assessment year 2009-10 we find no merit in the orders of authorities below and we reverse the order of CIT(A). We find no merit in the addition made in the hands of the assessee on account of suppressed production consequent to erratic consumption of electricity. Appeals of the Revenue against the adoption of GP rate of 4% and the deletion of working capital required for investment in suppressed production is also deleted by us by following order in the case of assessee and others in earlier years and following the same parity of reasoning we dismiss the grounds of appeal raised by the Revenue.

Issues Involved:
1. Alleged suppression of production and sales.
2. Reliance on Central Excise and Customs orders.
3. Variation in electricity consumption.
4. Rejection of books of accounts under Section 145.
5. Gross Profit (GP) addition on suppressed sales.
6. Non-issue of notice under Section 143(2) after reopening under Section 147.
7. Extrapolation of sales for the entire year based on part-year evidence.

Issue-wise Detailed Analysis:

1. Alleged Suppression of Production and Sales:
The assessee was accused of suppressing production of MS Billets and sales based on information from the Central Excise and Customs Department. The Assessing Officer (AO) noted deviations in electricity consumption, which led to the presumption of suppressed production. The CIT(A) upheld the AO's findings, citing evidence of clandestine removal of goods and evasion of excise duty.

2. Reliance on Central Excise and Customs Orders:
The AO relied on the Central Excise and Customs Department's findings, which were based on electricity consumption norms provided by a report from Dr. N.K. Batra. The CIT(A) supported this reliance, noting the assessee's admission of clandestine removal of goods and payment of excise duty before the Settlement Commission.

3. Variation in Electricity Consumption:
The AO observed significant monthly variations in electricity consumption per metric ton (MT) of steel, which was deemed unreasonable. The CIT(A) agreed, stating that the variations indicated suppressed production. However, the Tribunal found that the physical verification by the Excise Department showed actual consumption higher than the norms used by the AO, leading to the conclusion that the addition based on erratic electricity consumption was not justified.

4. Rejection of Books of Accounts under Section 145:
The AO rejected the assessee's books of accounts under Section 145, citing discrepancies in electricity consumption and production records. The CIT(A) upheld this rejection. The Tribunal, however, found no merit in the rejection, noting that the AO's basis (erratic electricity consumption) was flawed and unsupported by independent investigation.

5. Gross Profit (GP) Addition on Suppressed Sales:
The CIT(A) applied a GP rate of 4% on the alleged suppressed sales. The Tribunal, following its earlier decision in M/s. SRJ Peety Steels Pvt. Ltd., held that such an addition was not warranted without concrete evidence of suppressed production and sales.

6. Non-Issue of Notice under Section 143(2) after Reopening under Section 147:
The Tribunal dismissed this issue as academic, given the deletion of the addition on account of suppressed production/sales.

7. Extrapolation of Sales for the Entire Year Based on Part-Year Evidence:
The Revenue argued for extrapolating sales for the entire year based on evidence of clandestine removal for part of the year. The Tribunal rejected this, noting that the Settlement Commission's acceptance of the assessee's petition for part of the year did not justify extrapolation for the entire year without further evidence.

Conclusion:
The Tribunal found no merit in the additions made by the AO and upheld by the CIT(A) on the grounds of suppressed production and sales based on erratic electricity consumption. The Tribunal also dismissed the Revenue's appeal against the CIT(A)'s application of a 4% GP rate, citing lack of concrete evidence. The Tribunal emphasized the need for independent investigation and corroborative evidence to justify such additions.

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