TMI Blog2015 (7) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal vide Miscellaneous Application is sheer waste of judicial time and process of law. This is a fit case for levy of costs against the Department for raising frivolous and vexatious arguments and pleas about estimation of income, which were never raised during the course of hearing of the appeal before the Tribunal Admittedly, during the course of search and seizure operation on certain brokers, evidences of clandestine removal of material without payment of Excise duty, was found against the assessee. However, no search and seizure operation was carried out against the assessee, but the assessee claims that in order to buy peace of mind, it had declared the said amount by way of petition before the Settlement Commission. The said offer made by the assessee was accepted in toto. It may be noted that the Excise authorities have the power to re-visit the offer made by the assessee, in case, any adverse material is available against the person making the offer. It may also be noted that the Settlement accepted in the hands of the assessee is for the financial year and is not restricted to the number of days for which it has offered. In other words, once a person ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12, Arising out of ITA Nos.435 & 436/PN/2012 - - - Dated:- 15-7-2015 - MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM Applicant by : Shri Sunil Ganoo (Special Counsel to Deptt.) Respondent by : Shri J.P. Bairagra ORDER PER SUSHMA CHOWLA, JM : The captioned Miscellaneous Application relating to assessment years 2007-08 2008-09 has been filed by the Department against the order of Tribunal dated 16.01.2015 under section 254(2) of the Income Tax Act, 1961 , which reads as under :- Miscellaneous Application No.17/PN/2015 This Miscellaneous application is filed by the I.T. Department who is the Respondent in ITA Nos.123 124/PN/2012 and appellant in ITA Nos. 435 436/PN/2012 hereinabove referred. The Hon. Members were pleased to allow the appeals of the appellant assessee bearing Nos.123 124/PN/2012 and were pleased to dismiss the appeals of the department in ITA Nos.435 436/PN/2012 vide order dt.16/01/2015 for the reasons as fully set out in the impugned order. With due respect to the Hon. Members, the Respondent Revenue most respectfully submits that the said order passed by the Hon. Bench suffers from following serious mistakes of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee company offered income of ₹ 6,72,620.00 [Rs.l,43,270.00 being G.P. @ 3% on suppressed Sales of ₹ 47,75,600.00 plus ₹ 5,29,350.00 for peak purchases] on account of the impugned suppressed Sales as per Computation Sheet regarding additional income. Similarly Shree OM Rolling Mills Pvt. Ltd offered Profit of ₹ 1,08,920.00 on the impugned suppressed sales. Thus the fact of suppression of sales has been admitted by the assessee company before the learned Assessing Officer. The learned Assessing Officer by placing reliance on the aforesaid written submissions dt.13/12/2010 filed before him by the assessee company has vide Para 1.4 on Page 2 of the impugned assessment order for the A Y 2007-08 observed that the assessee company has offered profit of ₹ 6,72,620.00 on account of admission of suppressed production. The said admission of suppression of sales and unaccounted purchases was never retracted by the appellant assessee. This fact is also admitted by the assessee company in Para No.1 of Statement of Facts filed along with Form No.35 filed before the learned C.I.T.[A] In view of the aforesaid uncontroverted facts, there was evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise as under: 19 There are other instances of central excise violations detected by other agencies where the assessee was found to be involved. In one instance the assessee has approached Settlement Commission, admitted the evasion offence of an identical nature and had obtained immunity from criminal proceedings. The assessee has however argued that each case has to be treated as a separate case based on its own merits and dealt with accordingly. The argument of the assessee is accepted. No reliance has been placed on evidence relied upon in central excise proceedings. The findings in this case are based only on material and evidences that have been brought on record in the instant case. The Hon. Third Member has further observed as I am therefore of the opinion that reliance placed by the Revenue on the evidence in earlier cases which are already settled, is totally misplaced, when these findings of commissioner are not even challenged by revenue. Thus it is crystal clear that the Hon. Third Member has not considered the evidence about the clandestine removal of material and the duty levied on the same which issue was settled by the Hon. Settlement Commission. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter mentioned. In the present appeals both the lower authorities have considered the confessional admissions of the assessee company before the learned Assessing Officer as well as the Central Excise Authorities and also the fact that the assessee company has offered income on alleged suppressed sales. It is respectfully submitted that the Hon. Bench has not considered the ratio of following decisions about the law of admission of the assessee regarding the suppression of sales: i. Pullangode Rubber Produce Co Ltd v / s State of Kerala and another reported in 91 I.T.R. Page 18 [SC] ii. Basant Singh v/ s Janki Singh reported in 1967 AIR 0341 SC iii. Mak Data P Ltd v/ s C.I.T. reported in 358 I.T.R Page 593 [SC] It is respectfully submitted that the Hon. Supreme Court in the case of A.C.I.T. v/s Surashtra Kutch Stock Exchange Ltd reported in 305 I.T.R. Page 227 has held that failure to consider the decision of the Supreme Court or the jurisdictional High Court constitutes mistake of law apparent from records and has to be rectified by the ITAT by invoking powers u/s 254[2] of the I.T. Act, 1961. Erroneous interpretation of e decision of the Hon. Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings and observation of the Tribunal as well as the Hon. High Court are also important to decided the present appeals more particularly on the additions, based on consumption of electricity are erroneous and being contrary to the facts as hereinabove mentioned the same are legally unsustainable. The respondent revenue most respectfully submits that the scope of Section 153 A of the I.T. Act 1961 has been lucidly explained by the Hon. Bombay High Court Nagpur Bench in I.T. Appeal No.36 of 2009 decided on 29/10/2010. In the present case during the reassessment proceedings the learned Assessing Officer directed the appellant assessee to explain the drastic variation in consumption of electricity. But the appellant assessee did not offer any explanation. In fact for subsequent years when the assessee realized that the department was on right track of detecting the suppression the assessee became wise and the consumption of electricity for subsequent years has gone down and has settled to 1026 units as per theoretical formula. This is quite evident from the various submissions made by the appellant assessee. Please refer to Page Nos.207 to 211 of Paper Book No.1 submitted by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer had accepted that additional income in the hands of the assessee, then while deleting the addition, the Tribunal had committed an error and observed that there was no information before the Assessing Officer. It was also pointed out by Ld. Special AR that the Assessing Officer, after he got the information of the assessee involved in clandestine removal of goods had issued the notice under section 148 of the Act, against which the assessee filed a return of income offering additional income which has been accepted. The Ld. Special AR thus pointed out that the Tribunal having not considered the relevant material to arrive at the conclusion, hence there was mistake in the order of the Tribunal. Our attention was drawn to the findings of the Tribunal in para 21 at page 41 and para 22, 23, 24 at pages 42 to 45 of the Tribunal s order and it was vehemently stressed by the Ld. Special AR that the addition in the hands of the assessee was not only based on erratic consumption of electricity but it was one of the mode for calculating the additional income in the hands of the assessee. The Ld. Special AR further referred to the decision of the Tribunal in assessee s own case in earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction raised by the Ld. Special AR was the contention made at page 7 of the Miscellaneous Application filed by the Department. It was contended by him that various legal issues were raised and are mentioned in the notes of argument filed on 05.11.2014 but since the Tribunal has refr ained from dealing with them, this mistake was committed by the Tribunal and in such a situation what is fall out i.e. (a) when there is clandestine removal of goods, extrapolation has not been considered in the hands of the assessee; and, (b) the Tribunal says that there is no independent inquiry, though there is an inquiry on the basis of which the clandestine removal of goods was detected and the assessee offered the income on such clandestine removal. The Ld. Special AR further stated that even though Assessing Officer had not made any addition on account of clandestine removal of goods, however keeping in mind the erratic consumption of electricity the Assessing Officer had made addition on account of erratic consumption of electricity. It was vehemently argued by the Ld. Special AR that the various legal issues which the Tribunal has refrained from dealing in should have dealt by it and in the abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laneous proceedings is whether all the arguments taken by both the parties were noted or not. But the Tribunal while disposing of an appeal was not required to give independent finding on each judgements. The parties may cite decisions but the judgement of the Tribunal is independent of the arguments made by the parties. It was further pointed out by him that it was the prerogative of the Bench how to give the findings. Our attention was drawn to pages 5 and 6 of the miscellaneous application filed by the Department and it was pointed out that in the miscellaneous application the Ld. Special AR says that there is an erroneous interpretation of the decisions by the Tribunal. He questioned how the Ld. Special AR can say that it is erroneous interpretation in the miscellaneous application. The Ld. Authorized Representative for the assessee placed reliance on series of decisions as per the case laws compilation and pointed out that in view of the ratio laid down by the said decisions, there was no merit in the miscellaneous application filed by the Department. It was further contended by him that the Tribunal had not decided on one issue but on multiple issues. It was further pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trapolated for 300 days, against which both Revenue and the assessee went in appeal, which appeals were dismissed by the Hon ble High Court. In assessment years 2007-08 and 2008-09, when there was no search and no investigation by the Income Tax Department, it was pointed out by the Ld. Authorized Representative for the assessee that there was no basis for making any addition or extrapolation for 300 days in the hands of the assessee. In respect of the addition to be sustained by extrapolating the sale of 2 to 3 days for 300 days, the Ld. Authorized Representative for the assessee pointed out that the case of the Assessing Officer cannot be made good in miscellaneous proceedings. It was pointed out by him that the Assessing Officer had not raised any issue on extrapolation on this account and even before the CIT(A) and the Tribunal, no such argument was raised by the either party. Our attention was drawn to the note filed by the Ld. Special AR on 05.11.2014 and it was pointed out that there was no argument on extrapolation and such an argument for the first time had been taken in the miscellaneous proceedings. It was further pointed by him, that in any case no addition on account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the record and the scope of rectification is not of revision or review. The mistake apparent from the record should be self-evident, and should not be debatable and also should not require elaborate discussion of evidence or argument to establish it. The mistake has to be such which is apparent and patent and for which, no elaborate reasons or enquiry is necessary. In case where two opinions are possible, then it cannot be said to be an error apparent on the basis of record. Such was the ratio laid down by the Hon ble Punjab Haryana High Court in CIT Vs. Vardhaman Spinning General Mills Ltd. (1997) 226 ITR 296, 302 (P H). Under section 254(2) of the Act, power is conferred with a view to rectify any mistake apparent from the record and such power does not contemplate re-hearing, which would have the effect of re-writing an order affecting the merits of the case. The Tribunal is conferred with the power to rectify a mistake and there is no power to review its order. The said ratio is laid down by the Hon ble Delhi High Court in Ms. Deeksha Suri Vs. ITAT (1998) 232 ITR 395 (Delhi). Further, in the garb of application for rectification, the appeal cannot be re-argued, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent from the record . Since no error was committed by the Tribunal in rectifying the mistake, the High Court was not wrong in confirming the said order. Both the orders, therefore, are strictly in consonance with law and no interference is called for. -Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd.(2003) 183 CTR (Guj) 364 : (2003) 262 ITR 146 (Guj) affirmed; Suhrid Geigy Ltd. vs. Commr. of Surtax(1998) 150 CTR (Guj) 424 : (1999) 237 ITR 834 (Guj) approved; S. Nagaraj Ors. vs. State of Karnataka 1993 Supp (4) SCC relied on. (Paras 41, 45 47) 15. The Hon ble apex court in ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (supra) further held that non consideration of decision of jurisdictional High Court or of the Hon ble Supreme Court could be said to be a mistake apparent from the record. 16. Similar proposition has been laid down by the Hon ble Supreme Court in Honda Siel Power Products Ltd. Vs. CIT (2007) 295 ITR 466 (SC), wherein it was held as under:- 12. As stated above, in this case we are concerned with the application under section 254(2) of the 1961 Act. As stated above, the expression rectification of mistake from the record occurs in section 154. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in CIT Vs. Ramesh Electric Trading Co. (1993) 203 ITR 497 (Bom) had laid down the proposition that failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record, although it might have been an error of judgment. The Hon ble Bombay High Court held as under:- The Appellate Tribunal does not have any power to review its own orders under the provisions of the Income-tax Act, 1961. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the record. This is merely a power of amending its order. In the instant case, in the first order of the Tribunal dated 9-6-1975, there was no mistake which was apparent from the record at all. The Tribunal was required to decide whether the commission payment of ₹ 54,000 was deductible under section 37 after examining the circumstances, the Tribunal came to the conclusion that it was not so deductible. The Tribunal cannot, in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal suffers from mistakes of facts and law, which are apparent from the record, which in turn, caused serious prejudice and injustice to the respondent Revenue. The first allegation is the erroneous assumption of material facts. Reference is being made to the Notes of arguments filed on 05.11.2014 by the Ld. Special AR, which admittedly, has been taken note of by the Tribunal vide para 13 on page 24 of the impugned order. The Revenue admits that the Tribunal vide para 11 on page 16 to para 11.1 on page 18 of the impugned order had reproduced the basic main factual points argued and brought to the notice of Bench by the respondent Revenue. Further, reference was made to the confessional statement dated 12.01.2007 given by Shri Surendra S. Peety, Managing Director of the assessee company before the DGCEI about the removal and sale of around 275 MT of ingots clandestinely to Shree Om Rolling Mills, without payment of Excise duty and receipt of cash against the sales. The plea of the Revenue in this regard is that during the re-assessment proceeding, the assessee had offered income of ₹ 6,72,620/- and thus, the fact of suppression of sales was admitted by the assessee company bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us and the same reflects elaborate submissions made by him by referring to various evidences and arguments to establish its case. Under the provisions of section 254(2) of the Act, the Tribunal is vested with the limited power of rectifying any mistake apparent from the record, which should be patent mistake and not be established by a long drawn process of arguments. The Courts have time and again held that in the garb of miscellaneous proceedings, the parties cannot reargue and re-present its case as the same would amount to review and not rectification of mistake apparent from the record. In view thereof, where the Ld. Special AR has time and again pointed out that the Tribunal had not considered its arguments though he himself admits that the Tribunal had summarized his arguments in paras 11 to 11.1 at pages 16 to 18 of the order of Tribunal, we find no merit in the allegations made by the Ld. Special AR vis- -vis non-consideration of material. The Ld. Special AR in the garb of the present Miscellaneous Application has re-argued his appeal by raising different pleas which as pointed out by the learned Authorized Representative for the assessee were not case of the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. DGCEI, against few brokers/sub-brokers and those brokers gave the names of many companies who are in the manufacturing of Ingot/Billets and TMT Bars. As per the statement given before the Central Excise Authorities by those brokers as well as sub-brokers namely Shri Umesh Modi, Mumbai, Shri Anil D Lingade, Shri Mukesh Gupta it was admitted that they were involved in clearing the consignments from the factory on weighment slips only and no excise duty was paid and they were involved in providing fake trading bills and challans which accompanied the vehicles carrying those consignments. As per the modus operandi adopted by the brokers they used to recover the said fake trading bills and challans after the goods reached their destination. As noted by the Assessing Officer those brokers/sub-brokers also admitted that the entire evidence was destroyed by them and they used to get the commission of ₹ 100/- per MT. The Assessing Officer has discussed the information gathered by the DGCEI, Zonal Unit, Mumbai in Para Nos. 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 2.7 of the assessment order. So far as action against the brokers and sub-brokers are concerned the Central Excise Authority issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of power consumption. The Tribunal vide para 19.2 referred to the order of CESTAT, which was against the order of CCE, Aurangabad and Third Member of CESTAT after discussing the issue which was reproduced by the Tribunal under para 19.3 at pages 31 to 37 of the order held that by majority view, the appeals filed by the assessee and other companies were allowed by CESTAT on 30.07.2006. Vide para 19.4, it is stated by the Tribunal that the CCE, Aurangabad had considered the investigation made by DGCEI against some brokers and in consequent thereto, show cause notices were issued to the assessee and other companies, against which the assessee and other companies came forward before the Settlement Commission and paid the Excise duty. The Tribunal further noted that the investigation of DGCEI made against the brokers and sub-brokers was also before the learned CCE, Aurangabad. The Tribunal further observed that on the perusal of assessment order, it was clear that both the assessments were merely based on alleged suppression of production by estimating certain consumption of electricity. The Tribunal further held that since as the very basis of the assessment order i.e. the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see to have suppressed the production on account of certain consumption of electricity. The perusal of the finding of Tribunal in para 19.4 reflects that both the aspects of the issue i.e. petition before the Settlement Commission which is consequent to the investigation by the DGCEI and also the order of CCE, Aurangabad alleging the suppression of production on certain consumption of electricity, were considered by the Tribunal and in view of the order of CCE, Aurangabad being set-aside and cancelled by the CESTAT, the Tribunal held that the estimated alleged suppression of production / sales have no legal legs to stand. 26. The allegations of Revenue vide Miscellaneous Application that the Tribunal had overlooked the evidences i.e. the confessional admission by way of petition before the Settlement Commission and has only relied on the Third Member decision of CESTAT in the case of assessee, is thus, incorrect. 27. Now, coming to the second stand of the Revenue that the Third Member decision of CESTAT in the case of assessee had not considered the above said clinching evidence, since the same was not an issue / ground before it, is also incorrect. The Third Member of CESTAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exist. The law is also well settled that when the assessee files an appeal challenging an order of the lower authority before the higher appellate authority then the entire order gets merged with the order of the higher appellate forum which in the present case is CESTAT. Moreover, investigation by DGCEI and proceeding before the Settlement Commission has also been considered by the CCE, Aurangabad in his adjudication order. The said order was subject matter before the CESTAT and said order has been set aside. Hence, we do not consider it necessary to deal with decisions relied on by Ld. Spl AR of the Revenue which are in context of admission of the Director of the assessee in the course of investigation made by DGCEI more particularly under the Indian Evidence Act as those decisions are not relevant now though good for academic discussion. So far as maintaining of Form G-7 in respect of the electricity consumption, the said issue was also before the CESTAT while deciding the fate of order of the Ld. CCE, Aurangabad. Ld. AR vehemently argued to point out how the order of the CESTAT, Mumbai Bench, Mumbai is not correct. The CESTAT is a higher appellate forum under the Custom Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is against the para 21 on page 41 of the impugned order, wherein the Tribunal had observed that no independent investigation and inquiry was conducted by the Revenue, but entire assessments were framed on the basis of information received from the Central Excise Department as well as adjudication order passed by the CCE, Aurangabad. The case of the Revenue before us is that the aforesaid conclusion drawn by the Bench was an outcome of mistaken belief of facts and law as the confessional statement of the assessee company before the Assessing Officer as well as the Central Excise authorities and also the offer of income on alleged suppressed sale were considered by lower authorities and the Tribunal had not considered the decision about the law of admission of any assessee. In the first instance, the decisions referred to by the Revenue were under the Excise Act i.e. Pullangode Rubber Produce Co. Ltd. Vs. State of Kerala and another (1973) 91 ITR 18 (SC) and Basant Singh Ors in Civil Appeals Nos.19 20 of 1963, order dated 02.08.1966 have been considered by the Third Member of CESTAT and in view thereof, it cannot be said that the Tribunal has not considered the ratios of said dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rors alleged to be committed by the Tribunal on erroneous assumption of facts. The assessee before us has filed a written Note and has also filed tabulated details of various legal issues raised by Ld. Special AR in his written synopsis and which in turn, have been considered and decided by the Tribunal vide different paras. The relevant details are as under:- Issue Considered and Decided by Hon. Tribunal in the following paras Issue No.1 Settlement of small quantity before Excise Authority The same is considered in Para 10.2, 11, 11.6, 12 and 14 Issue No.2 - If suppression is for part of period the same can be extrapolated for rest of the year The same is considered in the middle of Page No.18 and finding is given in Para 19.4 at Page No.38 of the order Issue No.3 Estimating suppressed production on the basis of electricity consumption The same is considered in Para 11.2 and given the finding in Para 23 at Page No.45 of the order Issue No.4 Applicability of Ratio of decision of RA Casting Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Issue No.11 Applicability of decision in the case of ACIT v. Arora Alloys 271(1)(c) of the Act taxmann.com 140. It is argued that in this case the statement was recorded by the Excise Authorities and not by the Income Tax Authorities The same is considered and relied on in Para 26 on Page No.49 of the order. In this regards, we submit that in case of the assessee also, the statement for removal of goods without payment of duty was given before the Excise Authorities and as submitted above no statement was recorded by the Income Tax authorities regarding removal of goods. Further even after getting the information from the Excise Department the AO has not done any enquiry. Therefore it is wrong to say that these facts of this case are different and not applicable to the facts of the assessee Issue No.12 Applicability of decision in the case of Vishal Paper Industries JCIT 32 taxmann.com 247. In this case there was no admission for removal of goods without payment of excise. However in the case before the Hon. Bench there was an admission on account of suppressed sales and undisclosed income has been offered for taxation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Special AR repeatedly and vehemently during the hearing of Miscellaneous Application was extrapolation of sales for 300 days, in view of the admission of assessee for clandestine removal of goods for a period of 2-4 days. The argument of the Ld. special AR before us was that the said aspect was considered by the Assessing Officer, however, another methodology was adopted by the Assessing Officer while estimating the suppressed sales in the hands of the assessee on account of erratic consumption of electricity. It was further stressed by him that the addition in the hands of the assessee in the alternate is merited by extrapolating the sales for 300 days in view of the admission of the assessee before the Settlement Commission of clandestine removal of goods. The Ld. special AR pointed out that the issues stand covered against the assessee in view of the appeal of the assessee being dismissed by the Hon ble Bombay High Court relating to assessment year 2006-07. Time and again, he referred to the decision of the Tribunal reported in 137 TTJ 627 [Pune] and pointed out that the Tribunal has not considered the said fact before deleting the addition in the hands of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n can be estimated for the rest of the year. Presumption u/s 114 of the Indian Evidence Act 1872 can be relied upon in estimating the suppressed income. Please refer the following decisions i. Commissioner of Sales Tax v/s H.M. Esufali H.M. Abdulali reported in 90 I.T.R. Page 271 ii. Ambika Prasad Thakur and others v/s Maharaj Kumar Kamal Singh and others reported in 1966 AIR Page 605 SC iii. C.I.T. v/s Dr. M.K.E. Memon reported in 248 I.T.R. Page 310 [BOM] iv. C.I.T. v/s Hotel Mariya reported in 332 I.T.R. Page 537 [Kerala ] 38. It may be pointed out that all these decisions relied upon by the Ld. Special AR have been considered by the Tribunal. Where the assessment has been made on the basis of adjudicating order passed by CCE, Aurangabad, which has been set-aside by the Third Member of CESTAT, and no other investigation having been made by the Income-tax Department against the assessee for the year under consideration, we find no merit in the plea of the Ld. Special AR for extrapolating the sales of year relying on the petition filed before the Settlement Commission. First of all, it was never the case of the Department during assessment or appellate proceedings a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Based on the evidences and arguments, the Hon. Bench gave its findings in Para Nos.22 to 44 of the decision. The relevant Paras are reproduced hereunder: Para 32 on Page 13 reads as under: The matter of fluctuating consumption of electricity can by no means be said to be a finding of search since all details regarding electricity vis-a vis production were before the Department. If the Department had any doubts regarding the same, it could have been raised during the regular assessments and not in the assessment proceedings under s.153A of the Act. When nothing incriminating was found in the course of search relating to any of these assessment years, the assessments for such years could not be disturbed on this ground. vi. Para No. 33 on Page No. 13 reads as under: In view of the above factual and legal position we find that the additions in question in asst.yrs. 2000-01 to 2005-06 are not corresponding to theseized material found during the course of search. The relevant I. T. returns for the said years were filed prior to the search in normal course disclosing the particulars of subject-matters were already on record. The returns have already been accepted and no asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Murli Agro referred supra wherein the issues involved were entirely different. It is submitted that the assessee company IS making the misleading arguments which deserve to be rejected. 39. The perusal of the above said submissions filed by the Ld. Special AR reflect that his case before the Tribunal while arguing the main appeal was that the view expressed by the Tribunal in 137 TTJ 627 (Pune) was about the assessment under section 153A of the Act and since the appeals against the present assessee pertain to the assessment proceedings, which were different from such assessments and thus, the facts of the aforesaid case were different and the contention of the Ld. Special AR that the issue involved in the present appeal was squarely covered by the said decision, was erroneous and ill-founded. In respect of the reliance of the learned Authorized Representative for the assessee on the decision of Hon ble Bombay High Court in assessee s own case relating to assessment year 2006-07, the Ld. Special AR stressed that the ratio of the said decision cannot be applied. 40. Now, before us while arguing the Miscellaneous Application, the Ld. Special AR has vehemently stressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee, no further addition can be made on account of alleged clandestine removal of goods or suppressed sales, in the absence of evidence for the balance period. The above said ratios have been laid down in Chattisgarh Steel Casting Pvt. Ltd. V. ACIT (supra), Hon ble Bombay High Court in CIT Vs. C.J. Shah Co. (supra), Hon ble Delhi High Court in CIT Vs. Anand Kumar Deepak Kumar (supra). The Ld. Special AR had placed reliance on the decision of Hon ble Bombay High Court in CIT Vs. Dr.M.K.E. Memon (supra) while arguing the issue No.2 i.e. estimation of suppressed production is mis-placed. The Hon ble Bombay High Court in the said decision considered the scope of assessment under Chapter XIVB and held that what is to be assessed under the said Chapter is undisclosed income of the block period and not the total income or loss of the previous year required to be assessed under regular assessment under section 143(3) of the Act. The Hon ble Bombay High Court held that such regular assessment stands on a different footing in contrast to the exercise undertaken by the Assessing Officer under Chapter XIV-B, where the Assessing Officer had to assess only the undisclosed income. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it may be put on record that the Ld. Special AR has during the course of hearing of bunch of appeals in Shree Om Rolling Mills Pvt. Ltd. and others in ITA Nos.125 127/PN/2012 , ITA Nos.430 431/PN/2012 and others has raised this plea of extrapolation, which has been adjudicated by us by order of even date and same has been dismissed. 45. The Ld. Special AR vehemently relied on the ratio laid down by the Hon ble Allahabad High Court in ITO Anr. Vs ITAT, Delhi Anr. (1965) 58 ITR 634 (All), wherein the Tribunal had inadvertently omitted to deal with a particular ground of appeal or contention of the assessee. As pointed out in the paras hereinabove, the Tribunal in the present appeal had dealt with all arguments raised by the Revenue and there is no merit in the said reliance placed upon by the Ld. Special AR. Even otherwise, the Hon ble Bombay High Court, which is the jurisdictional High Court, in CIT Vs. Ramesh Electric Trading Co. (supra) had held that the failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent from the record. 46. The ratio laid down in Niranjan Co. Ltd. Vs. ITAT Others (su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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