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TMI Blog2021 (1) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... n margin money at lower rate than it had to pay the borrowers. 2. At the outset, it is noted that this is the second round of appellate proceedings where the matter was set-aside to the file of the AO with certain specific directions. During the set-aside proceedings, relevant facts and findings of the AO as contained in order passed u/s 143(3) r/w 254 read as under: "While completing assessment u/s 143(3) on 31-01-2001 an addition of Rs. 4,24,27,000/- was made to the income of the assessee on account of cash premium received which was found out of the books of accounts maintained by the assessee. This issue was disputed by the assessee at various levels of appeals and finally the ITAT, Jaipur has restored the issue to the assessing officer. The ITATs observation is as under:- "41. We have heard the rival contentions of both the parties and perused the material available on the record. For AY 1996- 97, similar issue has been dealt by the coordinate Bench in ITA 382 & 420/JP/2011 dated 19.08.2016 wherein it was held as under: "We have heard the rival contentions of both the parties and perused the material available on the record The ld. AR has confirmed that the matter befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e co-ordinate bench in August -2016. Onces the CESTAT Order is pronounced, the nature of implication as well as the implication as well as the year involved would be clear and the Revenue as well as the assessee would be in a better position to put forward their respective contentions. Hence the finding and directions contained in Co-ordinate Bench decision for AY 1996-97 shall apply mutatis muntadis to the impugned assessment year as. well. Hence ground No. 7 of assessee is allowed for statistical purposes." As per the above mention/directions, the period involved is to be ascertained from the order of CESTAT. 2. That the assessee had field appeal before Customs, Excise & Services Tax Appellate Tribunal (CESTAT) against the order dated 19.02.2009 of Commissioner of Central Excise (Adjudication) Delhi. The CESTAT heard the appeal and passed the order on dated 17.02.2017. (A copy of the Order is enclosed herewith for your ready reference and record) The assessee then filed appeal in hon'ble Superme Court against the order of CESTAT . The Hon'ble Supreme Court vide order dated 25.08.2017 has dismissed the appeal. The assessee is now in the process of filing a revision p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-02-2017 passed in. Excise Appeal Number 1605 of 2009. The CESTATs order has decided the issue regarding quantification of differential duty on extra amount collected in cash from buyers and the outcome is against the contentions of the assessee. The conclusive para of the CESTATs order number 51801/2017 dated 17-02-2017 arising out of CCE(Adj.), New Delhi's original order number CCE/ADJ/PKJ/01/2009 date 19/02/2009 is reproduced below - "7. On careful consideration of the facts of the case and the adjudication in terms of direction issued by the Tribunal , we find no infirmity in the said findings of the Original Authority. The differential duty has been calculated based on weighted average and it is pertinent to note that the Original Authority has complied with the directions of the Tribunal and the submission made by the appellants that the present impugned order is beyond the scope of denovo direction by the Tribunal is not factually correct. No other issue was pressed during submission made by the learned Counsel for appellant. As such we find no merit in the present appeal and accordingly dismiss the same." Further CESTATs order was appealed by the assessee in the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erused the material available on the record. For AY 1996-97, similar issue has been dealt by the coordinate Bench in lTA 382 & 420/JP/2011 dated 19.08.2016 wherein it was held as under: "We have heard the rival contentions of both the parties and perused the material available on the record. The Id. AR has confirmed that the matter before CESTAT is still pending for adjudication and he has given an assurance that as soon as the order is pronounced by CESTAT and a copy is made available to the assessee, the assessee shall forthwith share a copy of the CESTAT order with the AO without any undue delay. In light of that, we confirm the order of the Id. CIT (A) and set-aside the matter to the file of the AO to decide the same afresh as per law after taking into consideration the decision of CESTAT. Further we do not see any infirmity in the order of the Id. CIT (A) to allow the claim of the assessee towards payments of excise duty of Rs. 60 lacs, claimed to be paid before the due date of filling of return of income, subject to due verification by the AO." 42. In the instant case, the AO has placed his reliance on the findings in the assessment order for AY 1996-97 and given that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent Appearance Shri A.K. Prasad, Advocate- for the appellant Shri G.R. Singh, Authorized Representative (DR) for the Respondent. CORAM: Hon'ble Shri S.K. Mohanty, Member (Judicial) Hon'ble Shri B. Ravichandran, Member (Technical) Final Order No. 51801/2017 Dated 17/02/2017 Per. B. Ravichandran:- The appeal is against order dated 19/02/2009 of Commissioner of Central Excise (Adjudication), Delhi. The said order was passed in line with the direction of the Tribunal vide final order No. 195/2002-A dated 24/05/2002. The brief facts of the case are that the appellants are engaged in the manufacture of liquid chlorine and caustic soda flakes liable to Central Excise duty. The Revenue investigated a case against the appellant and initiated proceedings for demanding differential duty on the extra amount collected in cash from the buyers over and above the invoice value. The demand was covering the period April 1995 to August 1996. The case was adjudicated by the Commissioner vide order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on money has been in general and it is held that same type of practice of receiving unaccounted cash over and above the invoice price is existing in the year under consideration. It is also noted that Ld. CIT (A) Alwar vide his order no. 201/2000-01 dated 30.09.2014 confirmed the addition. Since this amount of differential duty formed basis of addition of Rs. 4,24,27000/- in the assessee's income-tax assessment completed on 31-01-2001, the same consequently stands upheld. Hence addition of Rs. 4,24,27,000/- is made to the income of the assessee." 6.4 I have considered the above mentioned facts of the case. Hon'ble ITAT Jaipur Bench has clearly directed that the set aside assessment would be based on the outcome of the CESTAT order with regard to involvement of the year and the implications of the CESTAT order. It is to be considered that the basis of addition was made out of consequences of a search conducted at the business premises by the directorate of Anti Evasion, Central Excise on 27/08/1996 where as the current case pertains to F.Y:1997-98. It is in this context the Hon'ble ITAT had directed to consider the period involved as per the outcome of the CESTAT order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions and the relevant facts and findings of the AO in the set-aside proceedings are as under: "While completing assessment u/s 143(3) on 31-01-2001 an addition of Rs. 25,00,000/- was made to the income of the assessee on account of Interest of margin money. This issue was disputed by the assessee at various levels of appeals and finally the ITAT, Jaipur has restored the issue to the assessing officer. The ITAT's observation is as under:- We have heard the rival contentions of both the parties and perused the material available on the record. It is submitted by the Ld AR that the interest paid on ICD is only Rs. 13,72,144/- and there is no fresh ICD and it is coming from last year where the disallowance made in AY 1996-97 was deleted by the Hon'ble ITAT in ITA No. 387/JP/1 dated 19-08-2016. The matter is set-aside to the file of the AO to examine the above said contention of the assessee and where the same is found to be correct, the AO is directed to allow the necessary relief to the assessee following the order passed by the Coordinate Bench for A.Y. 1996-97. The ground no. 10 is thus allowed for statistical purposes. During the assessment proceeding A/R of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expediency because in the guise of such support the assessee company had minimized its profit. It need not to support its sister concerns or other groups companies at the cost of its loss. It should charge at least interest at the rate which it had to pay to the borrowers. Moreover, if the assessee company had sufficient funds as share capital, then where was the need to borrow funds on such high rate of interest? From this it is clear that the assessee company, in this way, used the funds for its own purposes and reduced the profit in the name of support to group companies. It is also mentioned here that Ld. CIT (A) Alwar vide his office order no. 201/2000-01 dated 30.09.2014 confirmed the above addition. During the assessment proceeding A/R of the assessee only submit chart of interest. A/R of the assessee fail to submit the details of interest paid and interest received with corrosive evidence, the company also fail to submit the reason as why he taken money at higher rate and give to someone lower rates, if the companies has sufficient funds. Hence addition of Rs. 25,00,000/- is made to the income of the assessee. Further penalty proceedings u/s 271(1)(c) of the income tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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