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TMI Blog2018 (9) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... dgement of the Income Tax Appellate Tribunal dated 16.01.2018. The issue pertains to the assessment year 2005-06. Following questions have been presented by the Revenue: "A. Whether on facts and circumstances of the case Appellate Tribunal is justified in law and on facts in not appreciating the provisions of section 145 of the IT Act which provides for rejection of book result of the assessee where the assessing officer is not satisfied about the correctness or completeness of the accounts of the assessee? B. Whether on the facts and circumstances of the case Appellate Tribunal is justified in law and on facts in deleting the addition made on account of suppressed sale by using the material collected by the Excise Department including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .25 crores coupled with excise duty element of 73.55 lacs) had escaped assessment. He accordingly, framed the assessment after rejecting the petitioner's objections. Such assessment order was challenged by the petitioner before the High Court on the ground that the Assistant Commissioner of Commercial Tax had proceeded merely on the show-cause notice issued by the Excise Department without any further verification. The Court noticed that the entire order of reassessment proceeded on the show-cause notice issued by the Excise department without any further material being brought on record. The Court held that merely because the Excise department issued such a notice, it cannot be a ground to presume that there was evasion of excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of fraud or collusion or willful misstatement or suppression of facts or contravention of the provisions of the Act with intent to evade payment of duty. 9. Under the circumstances, the Assessing Officer cannot be expected to defer completion of assessment awaiting final order of adjudication in excise proceedings at the risk of his assessment getting time barred. Even otherwise, in a given case, the material that may be brought on record in excise proceedings may be different from that which may form part of the assessment proceedings though the both may, to some extent, be common. 10. Having thus cleared the peripheral issues, we may examine the central question viz. did the Assessing Officer have sufficient material at his comma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atically established. The Assessing Officer merely cosmetically gave an opportunity to the assessee to meet with such allegations, virtually, shifting the burden of proving the evasion of duty that had taken place on the assessee. We have perused the entire order of assessment. There is no independent material brought on record by the Assessing Officer other than those which were already collected by the Excise department and which, as noted earlier, are yet to be verified. 12. Counsel for the assessees drew our attention to a judgement of Customs, Excise and Service Tax Appellate Tribunal in which, the order of adjudication passed in case of one of the ceramic units (not an assessee before us) by the Adjudicating authority came to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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