2016 (5) TMI 420 - AT - Income Tax

Suppression of production on account of electricity consumption - rejection of books of account - GP rate application - Held that - As during the year under consideration, neither investigation by the DGCEI nor any suppressed production has been detected and admitted by the assessee. Further, the assessee has not moved any petition before the Settlement Commission or any other Excise authorities. In the totality of the above said facts and circumstances and in the absence of any evidence collected by the Assessing Officer of alleged removal of goods without payment of Excise duty, merely on the basis of estimation of alleged suppressed production on account of erratic consumption of electricity, there is no merit in making any addition in the hands of assessee. Further, the Tribunal in Shree Om Rolling Mills Pvt. Ltd. Vs. Addl. CIT 2015 (10) TMI 2316 - ITAT PUNE has deleted the addition made in the hands of assessee on account of alleged suppression of production on account of electricity consumption. In the totality of the above said facts and circumstances, we delete addition made in the hands of assessee by the CIT(A) to the extent of 4% of the said alleged production. Accordingly, ground of appeal raised by the assessee against rejection of books of account and confirming the addition made on account of suppression of production by applying GP rate of 4% on the alleged production of sale are allowed. - Decided in favour of assessee

Issues Involved:
1. Validity of the assessment order.
2. Rejection of books of accounts under Section 145(1) of the Income Tax Act, 1961.
3. Addition based on estimated 4% Gross Profit on suppressed sales.
4. Clandestine removal of finished product and its calculation based on electricity consumption.

Detailed Analysis:

1. Validity of the Assessment Order:
The assessee contended that the assessment order passed by the assessing officer was "bad in law" and sought its cancellation. This issue was not elaborated further in the judgment, as the primary focus was on the rejection of books and the addition based on electricity consumption.

2. Rejection of Books of Accounts Under Section 145(1):
The assessee argued that the assessing officer erred in rejecting the books of accounts under Section 145(1) and requested that the profit arrived from the audited books be accepted. The Tribunal found that the rejection was primarily based on alleged suppression of production determined by electricity consumption. It was held that no independent investigation was made by the Revenue, and the entire assessment was based on information from the Central Excise Department, which had been overturned by the CESTAT. Therefore, the rejection of books of accounts was not justified.

3. Addition Based on Estimated 4% Gross Profit on Suppressed Sales:
The Tribunal addressed the addition made by estimating a 4% gross profit on suppressed sales calculated based on electricity consumption. The Tribunal referred to its earlier decision in the case of Shree Om Rolling Mills Pvt. Ltd., where it was held that such additions based on erratic electricity consumption were not sustainable. The Tribunal emphasized that the consumption of electricity for manufacturing depends on various factors and cannot be the sole basis for determining suppressed production. Consequently, the addition was deleted.

4. Clandestine Removal of Finished Product and Its Calculation Based on Electricity Consumption:
The Tribunal noted that the issue of clandestine removal of finished products was based on an investigation by the excise department, which relied on electricity consumption data. However, it was found that no incriminating documents or excess stock were discovered during the search. The Tribunal reiterated that the addition based on electricity consumption was not legally sustainable. The Tribunal also referred to the decision of the Third Member of CESTAT, which had overruled the order of the Commissioner of Central Excise, Aurangabad, regarding suppression of production based on electricity consumption. The Tribunal concluded that no addition could be made in the hands of the assessee on the basis of such assumptions and estimations.

Conclusion:
The Tribunal allowed the appeal of the assessee by deleting the addition made on account of suppressed production and sales based on electricity consumption. The rejection of books of accounts was also held to be unjustified. The appeal of the Revenue was dismissed, and the Tribunal directed the Assessing Officer to verify the records and include additional income only to the extent of profits on admitted clandestine removal of material without payment of excise duty.

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