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2019 (7) TMI 1402 - CESTAT NEW DELHIClandestine manufacture and removal - excess of raw-material/difference in stock - mis-representation/suppression of facts on part of the appellant - Time Limitation - HELD THAT:- Apparently and admittedly, the impugned demand is solely based upon the letter as was received by the Revenue Department from Income Tax Department on 4th December, 2009. Admittedly no investigation in furtherance of said information has been conducted by the Revenue Department except for recording the statement of the Director of assessee, namely, Shri Sharat Jain on 17th January, 2014. There is no explanation on the part of the Department about the delay of almost 5 years in acting upon the information, which they had since the year 2009. It is also an apparent-admitted fact that the Revenue Department was regularly conducting the audit of the respondent even after receiving the said information till the year 2012-2013 that too without noticing any short coming as was informed by Income Tax Department in the year 2009. Also in absence of no investigation by the Department, there is no positive evidence on record, which may prove any mis-representation or suppression of facts on part of the assessee - the Commissioner (Appeals) has committed no error while denying the Department the entitlement to invoke the extended period of limitation. It has been observed by the Commissioner (Appeals) that there is no admission of the alleged guilt by said Shri Sharat Jain except for the mention that the stock difference as has been noticed by the Income Tax Department, has been challenged by the assessee-respondent before Commissioner (Appeals), Income Tax, and outcome has not yet been finalized. The Commissioner (Appeals) has gone observing that Commissioner of Income Tax (Appeals) has categorically set aside the findings of the excess stock - once the inventory is found defected, its reliability for estimating the income also becomes doubtful. This decision shatters the sole basis of reliance for the present adjudication as admittedly, the Revenue Department had no other information than the said inventory. This amounts to having no evidence. Appeal dismissed - decided against Revenue.
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