2016 (5) TMI 421 - AT - Income Tax

Addition made on account of alleged suppression of production - 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. 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. Alleged suppression of production and sales.
2. Basis of estimation of suppressed production.
3. Rejection of books of accounts under Section 145 of the Income Tax Act.
4. Addition on account of Gross Profit on alleged suppressed production.
5. Reliance on previous tribunal orders and technical reports.
6. Cross appeals by both the assessee and the Revenue.
7. Evidence from Central Excise and Customs Department.
8. Extrapolation of sales for the entire year based on evidence for a part of the year.
9. Addition on account of undisclosed investment under Section 69C of the Act.

Detailed Analysis:
1. Alleged Suppression of Production and Sales:
The assessee was accused of suppressing production and sales based on electricity consumption data, leading to an addition of ?1,65,53,281/-. The CIT(A) confirmed this addition based on a show cause notice from Central Excise and Customs for previous assessment years and an article by Dr. N.K. Batra, Professor of IIT, Kanpur. The Tribunal, however, found no merit in the addition made on mere assumptions and surmises.

2. Basis of Estimation of Suppressed Production:
The Assessing Officer (AO) estimated suppressed production based on electricity consumption, using a standard of 188 units per MT derived from US standards. The Tribunal noted that such standards could not be applied under Indian conditions without evidence. The Tribunal relied on previous orders where similar additions were deleted, stating that the consumption of electricity alone could not justify the suppression of production.

3. Rejection of Books of Accounts under Section 145:
The AO rejected the assessee's books of accounts under Section 145 of the Income Tax Act, citing discrepancies in electricity consumption and production data. The Tribunal found no justification for this rejection, as no independent investigation was conducted by the Revenue, and the basis for rejection was purely on assumptions.

4. Addition on Account of Gross Profit on Alleged Suppressed Production:
The CIT(A) applied a Gross Profit (GP) rate of 4% on the alleged suppressed production. The Tribunal, following its earlier decisions, deleted this addition, stating that the GP rate application was based on unsubstantiated assumptions.

5. Reliance on Previous Tribunal Orders and Technical Reports:
The Tribunal referred to its previous orders, particularly in the case of M/s. SRJ Peety Steels Pvt. Ltd., where similar additions were deleted. The Tribunal also noted that the technical report by Dr. N.K. Batra was not conclusive evidence for estimating production based on electricity consumption.

6. Cross Appeals by Both the Assessee and the Revenue:
Both the assessee and the Revenue filed cross appeals. The Tribunal consolidated these appeals and decided them together for convenience. The Tribunal allowed the assessee's appeal and dismissed the Revenue's appeals, finding no merit in the additions made by the AO and confirmed by the CIT(A).

7. Evidence from Central Excise and Customs Department:
The AO relied on information from the Central Excise and Customs Department, which had issued a show cause notice to the assessee. The Tribunal found that this information alone could not justify the addition, especially when no corroborative evidence was presented.

8. Extrapolation of Sales for the Entire Year Based on Evidence for a Part of the Year:
The Revenue argued for extrapolating sales for the entire year based on evidence of clandestine removal of goods for part of the year. The Tribunal rejected this argument, stating that without evidence for the entire year, such extrapolation was not justified.

9. Addition on Account of Undisclosed Investment under Section 69C of the Act:
The AO made an addition under Section 69C for alleged undisclosed investment in purchases for suppressed production. The Tribunal deleted this addition, stating that no evidence of such investment was presented.

Conclusion:
The Tribunal allowed the assessee's appeal and dismissed the Revenue's appeals, finding no merit in the additions made on the basis of electricity consumption data, assumptions, and unsubstantiated technical reports. The Tribunal emphasized the need for concrete evidence and independent investigation to justify any addition on account of suppressed production or sales.

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