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TMI Blog2014 (8) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... estored back to the file of the CIT(A) for adjudication afresh in the light of the order of CESTAT – revenue also agreed to the above submissions of the assessee - thus, the matter is to be remitted back to the CIT(A) for fresh adjudication – Decided in favour of Assessee. - ITA No. 1697/Ahd/2012 - - - Dated:- 19-8-2014 - Shri N. S. Saini And Shri Kul Bharat,JJ. For the Petitioner : Shri B. Kulshrestha, Sr. D.R. For the Respondent : Shri Sunil Talati, AR ORDER Per Shri N. S. Saini, Accountant Member: This is an appeal filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-XVI dated 22.06.2012. 2. The assessee has taken following grounds of appeal: 1. The learned C.I.T. (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- which is not accounted for in the books of accounts and further erred in law and on the facts of the case in confirming the G.P. addition of ₹ 14,1307- at the rate of 14.13% on this alleged parallel sales of ₹ 1,00,0007-. Both these estimations are illegal and without any basis and in any case highly excessive. 4. The learned C.I.T. (Appeals) has erred in law and on the facts of the case in confirming the estimation of shortage @ 15% which has resulted in to unaccounted sales of ₹ 10,40,8757- and further erred in making G.P. addition of ₹ 1,47,0757- at the rate of 14.13% on this alleged unaccounted sales of ₹ 10,40,8757-. Both these estimations are illegal and without any basis and in any case highly exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l ex-factory prices and MRPs for the purpose of payment of central excise duty. Consequently, the DGCEI carried out search at the business premises of the Appellant on 21/08/2008. It was the contention of the search team that the Appellant has removed ceramic frit clandestinely and has undervalued the finished goods by adopting various means such as issuing parallel invoices / commercial invoices. Accordingly, the search team had issued a show cause notice upon the Appellant to show as to why recovery of excise duty should not be made on such undervalued finished goods. In that respect, the Appellant submitted and explained to the adjudicating officer that the Appellant has neither undervalued the finished goods not clandestinely removed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt in cash. In respect of the allegation that post-survey the finished product has been sold at higher price, the Appellant explained to the Id. AO along with documentary evidences that due to increase 4n production cost and technical changes, the sale price has been increased and under the circumstances, it does not lead to mean that the Appellant has now started to charging the correct value. The Appellant further submitted and explained to the ld. AO that due to quality and standardization requirement of M/s Surani Ceramics, the price was charged at higher rate than the rate charged to other domestic customers where the requirement was different. Against the allegation that the Appellant has declared stock godown hypothecated to the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained to the ld. AO that Central Excise authorities is based only on the assumption and surmises and that cannot 6e made base for making addition under the Scheme of the Act, which is bad and illegal in the eyes of law. It was further explained that allegation of clandestine removal has to be proved by evidences/supporting and mere consumption of natural gas cannot be taken as base to mak6 an addition. Hence, the Appellant strongly submitted to the ld. AO that without brining on record evidence or material about purchase and consumption of raw material and sale of goods manufactured out of such raw material, no addition can be made merely on assumption, surmises and conjecture. However, the ld. AO did not appreciate the facts submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 10,40,875/- and therefore G.P. @ 14.13% , amounting to ₹ 1,47,075/- should be added to the total income of the Appellant. In this connection, the Appellant vide letter dated 24/12/2010 submitted a detailed reply. The Appellant submitted and explained to the ld. AO that the Excise Records of the Appellant are subjected to the Excise Audit by the Excise Officers and they have not found any discrepancy on account of clandestine manufacture and removal or undervaluation of the finished goods. It was also submitted and explained to the ld. AO that the Books of Accounts are also subjected to Audit by the Tax Auditors in view of the Income Tax Act, 1961 and no adverse comment has also been found in the Tax Audit Report. Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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