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TMI Blog2019 (1) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... itional evidence - Held that:- We find that the so called additional evidence is a copy of letter exchanged by ACIT, Circle-1 to Jt. CIT, Central Circle, a copy of which is placed at pages 72 to 76 of the paper book and the contents of which have also been reproduced by learned CIT(A) in his order from para 4(10)(i) of his order. The assessee had filed this letter during appellate proceedings and the case of the Revenue is that this letter was not confronted to the Assessing Officer. CIT(A) has not allowed relief to the assessee on the basis of this letter only and in his earlier paragraphs he has already decided the issue in favour of the assessee. The said letter, being part of the official record of the Revenue, cannot be said to be a document to which the Assessing Officer had no access. In this letter, which is claimed by the Revenue to be additional evidence, the Assessing Officer has only expressed its opinion on the addition made by the Assessing Officer and has written to Jt.CIT that the additions were not sustainable. CIT(A) has not much relied on the letter and has in fact already decided the issue in favour of the assessee - ITA No.421 & 422/Lkw/2016 - - - Dated:- 11-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two partners Smt. Sarita Gupta and Shri Anil Kumar Yadav. The assessee firm being part of the group was also required u/s 153A to file the return of income which was duly filed by the assessee. The Assessing Officer observed that the assessee was engaged in the business of manufacturing of Pan Masala, Gutkha and allied products. The Assessing Officer also observed that one sole partnership firm Balaji Marketing with the proprietor Shri Ashok Kumar Gupta also started selling the products produced by the assessee. The Assessing Officer observed that during the 3 search proceeding at the premises of the assessee, A hard disk was seized and in which the data in respect of business of Gutkha manufacturing and selling was found recorded in two formats, one of which was in tally accounting software and other was in the form of Excel sheets. He further observed that in both the formats some of the data was stored in the name of Ghee. The Assessing Officer further observed that the disk was used to record business transactions of Balaji Marketing, proprietor of which was Shri Ashok Kumar Gupta who was spouse of Smt. Sarita Gupta, the major partner in the assessee firm. The Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietor of Balaji Marketing has accepted the unaccounted turnover and at the same time he has also stated that the unaccounted turnover was purchased from open market and not from the assessee company. The learned CIT(A) has analyzed the factual position and has held that there was no evidence in the seized material which established unaccounted trading between the assessee and Balaji Marketing. The learned CIT(A) has held that disclosed turnover of the assessee during assessment year 2013-14 was ₹ 32.15 crores whereas the turnover of Balaji Marketing was ₹ 26.99 crores. In view of these facts he held that the findings of Assessing Officer that the entire sale of the assessee was through Balaji Marketing was not supported by evidence. The learned CIT(A) further held that there was no evidence in the seized material in support of the findings that the entire turnover of Balaji Marketing was derived from trading in goods manufactured by the assessee. Therefore, the learned CIT(A) held that the addition made by the Assessing Officer was only based upon the presumptions. The learned CIT(A) has passed a detailed order in both the years. For the sake of 5 completeness, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory and the number of machines which he actually intends to operate during a particular month. -Number of multiple track or multiple line packing machines available and installed in his factory and the number of machines which he actually intends to operate during a particular month. -Number of multiple track or multiple line packing machines which are incapable of performing additional processes of branding or moulding the pouches. It is generally done to intimate the concerned Officer to seal the machines. Simply put, no manufacturer would desire to pay the duty for non-functional machine. -Name of the manufacturer of each of the packing machine, identification number of the machine, purchasing date of machine and the maximum packing speed of each of the machine. It is difficult to understand that why the department calls for the manufacturer to declare the packing speed of the machine when the duty is levied on the basis of deemed production. The purpose of such declaration is hard to construe in case of compounded levy scheme. -Description of goods and brand names which he shall manufacture i.e. pan masala or gutkha or both. -Retail sale prices of pou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tallation of any packing machine. -A manufacturer shall not be allowed to keep as well as to trade in those goods of which no retail sale price had been declared by him. 4(9)(iii) There is no evidence brought on record that there was production in excess of that declared in compounded excise levy. The sort of unaccounted production of ₹ 90,25,69,255/- computed by the AO would require operation of packing machines and assembly line far in excess of that declared to excise authorities in terms of the Rules discussed supra. There is no evidence of any possession or operation of any packing machines except the number approved by the Excise. Admittedly no corroborative evidence is available either in the form of seizure of unaccounted goods 8 lying in the factory or seizure of Gutka/Pan Masala having been removed without gate passes. There is no evidence in the form of sale records to show that the quantities other than those removed have been sold by the appellant. There is no allegation of the receipt and consumption of excess raw material. In short, there are no other evidences to support the allegation of excess production and their clandestine removal. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Circle, a copy of which is placed at pages 72 to 76 of the paper book and the contents of which have also been reproduced by learned CIT(A) in his order from para 4(10)(i) of his order. The assessee had filed this letter during appellate proceedings and the case of the Revenue is that this letter was not confronted to the Assessing Officer. However, we find that learned CIT(A) has not allowed relief to the assessee on the basis of this letter only and in his earlier paragraphs he has already decided the issue in favour of the assessee. The said letter, being part of the official record of the Revenue, cannot be said to be a document to which the Assessing Officer had no access. In this letter, which is claimed by the Revenue to be additional evidence, the Assessing Officer has only expressed its opinion on the addition made by the Assessing Officer and has written to Jt.CIT that the additions were not sustainable. The learned CIT(A) has not much relied on the letter and has in fact already decided the issue in favour of the assessee in its earlier para of his order. Therefore, the ground relating to admission of addition evidence without confronting the Assessing Officer has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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