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TMI Blog2019 (7) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act which requires to reject the 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 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 the statements of relevant witnesses recorded during the search ? [C] Whether on the facts and in the circumstances of the case the Appellate Tribunal was justified in deciding the tax appeal against Revenue in spite of set aside the issue with a direction to verify the finality of proceedings by the Excise Department and assess the correct profit on suppression of sales on such information?" 3. We take notice of the fact that the Appellate Tribunal by a common judgment disposed of, in all 12 appeals including the appeal of the assessee herein. 4. We also take notice of the fact that one Vrundavan Ceramics Pvt. Ltd. was also one of the appellants before the Appellate Tribunal. The Appeal of Vrundavan Ceramics Pvt. Ltd. was ITA No. 117/Rjt/2013. The Revenue challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The Assessing Officer took the assessee's return under scrutiny. He supplied the copy of the show-cause notice to the assessee and called upon him to respond to the materials collected therein. The assessee's response in brief was that the contents of the show-cause notice issued by the Excise department were not true and correct. It merely contains statements collected behind the back of the assessee. Such statements are not yet verified. The makers of the statements have not been offered for cross-examination. It was also pointed out that the show-cause notice is yet to be adjudicated by the Excise Authorities. It was contended that even if the goods are ultimately sold at a price higher than the printed RSP, there cannot be any presumption that the assessee received the marginal price value. 3. The Assessing Officer was not convinced by such explanations. In the order of assessment, he referred to the contents of the show-cause notice at considerable length. He relied on the statements of the witnesses cited in such show cause notices. He noted, the manner of routing the excess cash sale price to the assessee. On such basis, he rejected the assessee's books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice issued by the Excise department pursuant to the raid indicating that the petitioner had suppressed sales to the tune of Rs. 5.25 crores and thereby evaded tax duty to the extent of 73.55 lacs. The Assistant Commissioner of Commercial Tax therefore, prima facie held a belief that the assessee's sale of Rs. 5.97 crores (i.e. the suppressed sale of 5.25 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 showcause notice issued by the Excise Department without any further verification. The Court noticed that the entire order of reassessment proceeded on the showcause 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 further implying evasion of value added tax. It was noticed that the show-cause notice issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he final orders of adjudication have been passed by the Excise authorities. These show-cause notices thus merely present the material collected by the Excise department suggesting the view of the department that this is a case of large scale excise evasion. Before final order levying excise duty with interest and penalty can be passed, these facts have to be established through by parte proceedings. Till then, it only remains in the realm of the stand of the department which is yet to be tested. 11. In addition to confronting the assessee with the contents of the show-cause notice issued by the Excise department, the Assessing Officer has done little else. He of course called upon the assessee to respond to the allegations contained in the show-cause notice, to the statements and materials accompanying such show-cause notice. As noted, the assessee gave a brief reply denying the allegations and pointing out that the charges are yet to be proved. If the Assessing Officer thereafter wanted to make additions on the basis of such materials, the same had to be brought on record. By merely producing the copies of the statements of the witnesses accompanying the show-cause notices, suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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