2018 (3) TMI 894 - AT - Income Tax

Reopening of assessment - addition on account of suppression of sales by adopting GP rate @ 15% on unaccounted sale - Held that - As Departmental Representative vehemently contends that the CIT(A) has erred in law as well as on facts in deleting the impugned addition he however fails to dispute the fact that the impugned re-assessment exercise is based on the Central Excise Department s show cause notice. It has come on record that the assessee has already succeeded on the very issue before the CESTAT tribunal. The impugned addition therefore has no legs to stand since not based on any independent evidence. The CIT(A) s above extracted findings are accordingly confirmed. - Decided against revenue

Issues Involved:
1. Suppression of sales and adoption of GP rate.
2. Validity of reassessment based on Central Excise Department’s show cause notice.
3. Admissibility of evidence and cross-examination under Section 9D of the Central Excise Act, 1944.

Issue-wise Detailed Analysis:

1. Suppression of Sales and Adoption of GP Rate:
The Assessing Officer (AO) made an addition of ?41,38,760/- by adopting a Gross Profit (GP) rate of 15% on unaccounted sales of ?2,75,91,738/-. This decision was based on investigations and search and seizure proceedings by the Directorate General of Central Excise Intelligence (DGCEI), which alleged under-valuation of sale bills and clandestine removal of goods. The AO concluded that the appellant's book results were unreliable and thus applied the GP rate to the unaccounted sales.

2. Validity of Reassessment Based on Central Excise Department’s Show Cause Notice:
The CIT(A) reversed the AO’s addition, emphasizing that the AO’s action was solely based on the DGCEI’s inquiries without independently identifying defects in the appellant's books of account. The CIT(A) noted that there was no seized material or details proving the alleged under-valuation and clandestine removal of goods. Furthermore, the appellant had succeeded in an appeal before the Central Excise and Service Tax Appellate Tribunal (CESTAT), which rejected the DGCEI’s allegations.

3. Admissibility of Evidence and Cross-Examination under Section 9D of the Central Excise Act, 1944:
The CESTAT’s decision highlighted several procedural lapses and the lack of reliable evidence in the DGCEI’s investigation. The tribunal found that the estimation of clandestine removal based on gas consumption norms was not legally sound. It also questioned the authenticity of data retrieved from a pen-drive, citing discrepancies in its handling and the failure to seal it properly. The tribunal emphasized the necessity of cross-examining witnesses whose statements were used to establish undervaluation and clandestine removal, as mandated by Section 9D of the Central Excise Act, 1944. The failure to allow cross-examination rendered such statements inadmissible as evidence.

Conclusion:
The CIT(A) concluded that the AO had rejected the appellant’s books of accounts under Section 145(3) of the Income Tax Act based solely on the DGCEI’s findings, without pointing out any independent defects. Since the basis for the addition (i.e., the DGCEI’s show cause notice) had been nullified by the CESTAT, the addition on account of the GP rate was unsustainable. The Revenue’s appeal was dismissed, and the CIT(A)’s findings were confirmed, as the reassessment lacked independent evidence to support the addition.

Final Judgment:
The appeal by the Revenue was dismissed, and the CIT(A)’s decision to delete the addition made by the AO was upheld. The reassessment based on the Central Excise Department’s show cause notice was deemed invalid due to the lack of independent evidence and procedural lapses in the DGCEI’s investigation. The judgment was pronounced in the open court on March 16, 2018.

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