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2018 (9) TMI 1537 - ITAT DELHIReopening of assessment - Reopening on the basis of show cause notice issued by the Excise Authorities - addition on account of suppression of value of sale of aluminium dross - Held that:- In the instant case it is undisputed fact that action u/s 148 of the Act was proceeded on the basis of show cause notice issued by the Excise Authorities which formed the basis of adjudication order by the Commissioner of Central Excise which had been set aside by an order dated 4.12.2015 of the Customs, Excise Service Tax Appellate Tribunal. Thus once the very foundation on which the action u/s 147 had been initiated had cease to exist; both logically and legally what emerges is that notice u/s 148 of the Act was invalid and the assessment framed u/s 147/143(3) was also vitiated. Addition on suppression of value of sale of alumninium dross - Held that:- AO has made a chain of presumptions while making addition in the hands of the appellant. Firstly, it was presumed that the quantity of dross mentioned in the excel sheet for the month of April, 2007 has been sold by the appellant in the guise of ash and residue as the same was matching with the invoiced quantity of ash and residue for that month. Secondly, it was presumed that even if the data for the other months was not matching, then took the appellant must have sold dross in the guise of ash and residue in all months. And thirdly, in the period after the date of search i.e. June, 2008 to March, 2009, for which there was no data on the excel sheet, the appellant must have also sold dross in the guise of ash and residue. There is no evidence whatsoever brought on record to support these presumptions. Even, for the period after the date of search, when the investigation was already initiated against the appellant, the AO has filed to bring out any evidence to show as to how the appellant was able to all the aluminum dross without issuing any invoice or by issuing invoice of ash and residue. Therefore, AO was not justified in making the presumption that the appellant has sold aluminium doss in the guise of ash and residue. Appellant has not sold dross in the year under consideration as there is no concrete evidence available on record to show that the appellate has underreported its sale. Further, the AO has not doubted the books of accounts and the operating results shown by the appellant. - Decided in favour of assessee
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