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2016 (11) TMI 1682 - AT - Income TaxReopening of assessment u/s 147 - payment of excise duty adjusting the excise duty towards the sale of old stock - HELD THAT:- AO was of the view that during the assessment proceedings it was found that the assessee is manufacturing utensils and sold them under payment of Central Excise Duty through Modvat credit. It was found that the assessee company has utilised the Modvat credit. Company has also concealed the sales - Assessing Officer was of the view that as per the books of accounts the provisions of excise duty on finished goods, as appearing in the books of accounts, as on 1.4.2002 was ₹ 732279/-. Out of the said provisions of excise duty, the assessee has adjusted the amount of ₹ 661612/- towards sale of old stock during the year under consideration. Thus, the assessee has made payment of excise duty adjusting the excise duty towards the sale of old stock. This, this was a new information. Assessing Officer has reopened the assessment and the reopening is justified. AO has reopened the assessment on the information which was available to him. CIT(A) is not justified in allowing the appeal on the ground that the reopening is not correct. AO reopened the assessment order on the ground that the assessee has utilised the amount of Modvat credit as per the audit report which did not tally with the excise duty debited to the profit and loss account - The assessee has shown excise duty payment in his return of income. AO has taken up two figures of excise duty from the return of the assessee that the excise duty of ₹ 7512186/- claimed as expenses in profit and loss account and in tax audit report Modvat credit claimed was ₹ 7743268/-. Therefore, when these two figures were picked up from the return of income and audit report filed by the assessee, it cannot be proved that the Assessing Officer has any information. Assessing Officer has, by booking the two figures, come to the conclusion that there are unaccounted sales but there is no tangible material to come to the conclusion that there is escapement of income from assessment and, therefore, the reopening of the case cannot be sustained. We find that the learned CIT(A) has verified the accounts, reconciliation statement of excise duty paid which was filed before the Assessing Officer and the learned CIT(A) and the learned CIT(A) has held that there is no reason to believe that there is separation of sale to the extent of ₹ 5160039/-. We also get support from the order in the case of Kelvinator of India Ltd. and Orient Craft Ltd. [2010 (1) TMI 11 - SUPREME COURT]. We, therefore, find no merit in this appeal of the revenue and dismiss the same.
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