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2016 (5) TMI 409 - ITAT PUNEReopening of assessment - estimation of income in the hands of assessee on account of alleged suppression of production on account of variation in consumption of electricity - assessee Karta, HUF had admitted to the clandestine removal of goods without payment of Excise duty and had paid additional Excise duty on the said amount - Held that:- The assessee had shown total disregard to the provisions of the Act. As against the notice issued under section 148 of the Act on 30.03.2010, where the return of income was to be filed within 30 days and assessment was getting time barred on 30.12.2010, the assessee furnished the alleged return of income on 10.11.2010 which is not maintainable and the same is rejected being non-est. Further, we also dismiss the plea of assessee that reassessment is bad in law as the notice under section 148 of the Act was not issued in name of assessee but its sole proprietary concern. The action by Excise authorities was taken against the sole proprietary concern in which clandestine removal of goods without payment of Excise duty were detected and after recording of reasons for reopening under section 147 of the Act, notice under section 148 of the Act was issued and assessment competed, which is as per the provisions of the Act and hence valid. Further, the assessee had participated in assessment proceedings, though had not furnished complete details and / or produced books of account, no prejudice is caused to assessee. We dismiss the plea of assessee in this regard. Accordingly, we find no merit in the grounds of appeal raised by the assessee against re-assessment proceedings The admission of assessee before the Excise authorities that it had made purchases to the value of ₹ 73,84,150/- from its other concern for unaccounted production, we find merit in the claim of assessee that the payments were made to the suppliers of raw material after receiving the sale receipts. This is the plausible explanation and can be accepted in the hands of assessee since the assessee is making the said purchases of Ingots from its concern itself, which was controlled and run by him. However, in respect of other items required for manufacturing in addition to raw material, we find merit in the order of CIT(A) in working out the addition to the extent of ₹ 9,06,132/- and the same is upheld. But no such separate addition was made by the Assessing Officer since the addition was made on account of unaccounted production. However, the CIT(A) had confirmed addition of ₹ 9,06,132/- separately and the same is confirmed. The facts and issues arising in the present appeal are identical to the facts and issue in Shree Om Rolling Mills Pvt. Ltd. Vs. Addl. CIT [2015 (10) TMI 2316 - ITAT PUNE ] and following the same parity of reasoning, we direct the Assessing Officer to verify from the records for the respective years and include in the hands of assessee, the additional income @ 4% or actual G.P. rate declared by the assessee for that year, whichever is higher, on value of such admitted clandestine removal of material without payment of Excise duty, by the assessee before the Excise authorities. Thus, the assessee is directed to file the requisite details of proceedings before the Excise authorities, before the Assessing Officer in order to compute the additional income in the hands of assessee in the respective years. - Decided partly in favour of assessee
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