2017 (11) TMI 1852 - AT - Income Tax

Under valuation of sales - clandestine production - addition solely made on the basis of show-cause notice issued by the DGCEI wherein it was observed that assessee is engaged in under valuation of sales and clandestine removal of goods - HELD THAT - We find that the basis of addition is contents of show-cause notice issued by the Excise Department. An investigation was carried out by DGCEI at assessee premises on 25/08/2008 wherein it was alleged by the Excise Department that assessee has not declared actual assessable value of goods manufactured and cleared from factory. Based on above DGCEI issued show-cause notice dated 19/04/2010 Excise department concluded that assessee was engaged in under valuation of sales and clandestine removal of goods. Only on the basis of same Assessing officer reopened assessee s income tax assessment for the years under consideration and made addition of estimated Gross Profit on under valuation sales and clandestine removal of goods. The Revenue has brought nothing on record that it has applied it s mind over and above the contents of show-cause notice in question thus there is lack of independent application of mind on behalf of revenue in these matters. Without prejudice to above we find that in Excise proceedings concerned authorities passed order against assessee and matter was carried up to concerned Hon ble CESTAT. Hon ble CESTAT vide its order dated 12/02/2015 as discussed above has decided the issue in favour of the assessee holding that Excise Department could not estimate value of alleged suppression of sales as well as clandestine removal of goods merely on the basis of assumption and surmises. CESTAT having considered the relevant facts of the case as well as relevant material i.e. Pen drive and statement recorded by the Excise Department has decided the matter in favour of the assessee as discussed above. In these circumstances Ld. CIT(A) was not justified in observing that relief granted by Hon ble CESTAT was highly technical. We also find that Excise Department carried matter before Hon ble Apex Court wherein same was dismissed as withdrawn as mentioned above. Nothing contrary was brought to our knowledge on behalf of Revenue in this regard.

Issues Involved:
1. Validity of reassessment proceedings under Section 147 of the Income Tax Act.
2. Addition on account of alleged undervaluation of sales.
3. Addition on account of alleged clandestine removal of goods.
4. Rejection of books of account.
5. Levy of interest under Sections 234A/B/C/D of the Income Tax Act.
6. Initiation of penalty proceedings under Section 271(1)(c) of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Validity of Reassessment Proceedings under Section 147:
The assessee challenged the validity of the reassessment proceedings initiated under Section 147 of the Income Tax Act. The primary contention was that the reassessment was based solely on the show-cause notice issued by the Directorate General of Central Excise Intelligence (DGCEI). The Tribunal noted that the reassessment proceedings were initiated based on information received from the DGCEI, which indicated that the assessee was involved in under-valuation and clandestine removal of goods. However, the Tribunal observed that the assessee did not press this issue during the hearing, and thus, the challenge to the validity of the reassessment proceedings was dismissed as not pressed.

2. Addition on Account of Alleged Undervaluation of Sales:
The Assessing Officer (AO) made additions on account of alleged undervaluation of sales based on the show-cause notice issued by the DGCEI. The AO estimated the Gross Profit (G.P.) on the alleged undervaluation of sales and added it to the assessee's income. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's addition. However, the Tribunal found that the basis of the addition was solely the show-cause notice issued by the DGCEI. The Tribunal noted that the Hon'ble CESTAT had quashed the adjudication orders passed by the Central Excise authorities, holding that the department could not estimate the value of alleged suppression of sales merely on the basis of assumptions and surmises. The Tribunal concluded that the additions made on account of alleged undervaluation of sales did not survive and directed their deletion.

3. Addition on Account of Alleged Clandestine Removal of Goods:
Similar to the issue of undervaluation of sales, the AO made additions on account of alleged clandestine removal of goods based on the DGCEI's show-cause notice. The AO estimated the G.P. on the alleged clandestine removal of goods and added it to the assessee's income. The CIT(A) confirmed the AO's addition. The Tribunal observed that the Hon'ble CESTAT had also quashed the adjudication orders regarding the alleged clandestine removal of goods, stating that the department could not estimate the value of alleged clandestine removal merely on assumptions and surmises. Consequently, the Tribunal directed the deletion of the additions made on account of alleged clandestine removal of goods.

4. Rejection of Books of Account:
The AO rejected the books of account maintained by the assessee, citing that the assessee was engaged in suppression of sales by way of undervaluation of sales invoices and clandestine removal of unaccounted production. The AO adopted the G.P. rate for estimating the additions. The CIT(A) upheld the AO's rejection of books of account. The Tribunal noted that the assessee had failed to produce the books of account during the remand proceedings and observed that the AO had provided sufficient opportunity for cross-examination and verification of records. The Tribunal found that the rejection of books of account was justified based on the evidences gathered by the Excise Department and the statements recorded during the investigation.

5. Levy of Interest under Sections 234A/B/C/D:
The CIT(A) confirmed the levy of interest under Sections 234A/B/C/D of the Income Tax Act, stating that it was mandatory and consequential to the determination of total income. The Tribunal did not provide a separate detailed analysis on this issue, as it was consequential to the outcome of the other issues.

6. Initiation of Penalty Proceedings under Section 271(1)(c):
The CIT(A) confirmed the initiation of penalty proceedings under Section 271(1)(c) of the Income Tax Act. The Tribunal did not provide a separate detailed analysis on this issue, as it was consequential to the outcome of the other issues.

Conclusion:
The Tribunal allowed all the appeals filed by the assessee, directing the deletion of additions made on account of alleged undervaluation of sales and clandestine removal of goods. The Tribunal found that the additions were solely based on the show-cause notice issued by the DGCEI and that the Hon'ble CESTAT had quashed the adjudication orders passed by the Central Excise authorities. The Tribunal also upheld the rejection of books of account by the AO but directed the deletion of the additions as the basis for the additions did not survive. The issues of levy of interest and initiation of penalty proceedings were not separately analyzed, as they were consequential to the determination of total income.

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