TMI Blog2021 (1) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... - HELD THAT:- In the first round, the Tribunal has set-aside the matter to the file of the AO to examine the contention of the assessee that there is no fresh ICD placed during the period under consideration and where the same is found to be correct, allow the relief to the assessee following the Tribunal s order for assessment year 1996-97 wherein similar addition was deleted. During the set-aside proceedings, we find that the assessee has submitted the details which show that there is no increase in Unsecured Loans and Inter-Corporate Deposits during the period under consideration. Therefore, following the earlier decision, the matter is decided in favour of the assessee . We find that the Tribunal decision for A.Y 1996-97 has since been confirmed by the Hon ble Rajasthan[ 2017 (11) TMI 1673 - RAJASTHAN HIGH COURT ] - In the result, the appeal of the Revenue is dismissed. - ITA. No. 132/JP/2020 - - - Dated:- 18-1-2021 - Shri Sandeep Gosain, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri P.C. Parwal (C.A.) For the Revenue : Shri Amrish Bedi (CIT) ORDER PER: VIKRAM SINGH YADAV, A.M. The Revenue has filed the present appeal against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther we do not see any infirmity in the order of the ld. CIT (A) to allow the claim of the assessee towards payments of excise duty of ₹ 60 lacs, claimed to be paid before the due date of filling of return of income, subject to due verification by the AO. 42. In the instant case, the AO has placed his reliance on the findings in the assessment order for AY 1996-97 and given that the Coordinate Bench has already taken view in the matter referred supra, we do not see any reason for us to deviate from the said view taken by the Coordinate Bench. Nothing has been brought to the notice of the Bench in respect of whether CESTAT order has been pronounced or not since the date of passing of order by the Coordinate Bench in August 2016. Once the CESAT order is pronounced, the nature of implications as well as the years involved would be clear and the Revenue as well as the assessee would be in a better position to put foreword their respective contentions. Hence, the findings and directions contained in Coordinate Bench decision for A.Y 1996-97 shall apply mutatis mutandis to the impunged assessment year as well. Hence, ground no. 7 of assessee is allowed for statistical purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t covered and there was no case or demand for the additional duty on account of alleged Cash Premium for this period. 5. That the Assessee in his earlier reply had submitted a copy of letter dated 15.07.2014 issued by the Central Excise Department in which the department had clearly reported that there was no case booked for under valuation against the assessee company regarding financial year 1997-98. 6. That earlier the letter of Central Excise department and now the Order CESTAT has cleared the doubts for the coverage of period for the alleged Cash premium/ under valuation issue. 7. As mentioned in our earlier submission that once the department convinced that there was no such alleged Cash premium practice after 27.08.1996 and accordingly passed the assessment order on 24.01.2000 for the A.Y. 1997-98 in which additions were made against sales upto 27.08.1996 only. However in the next Assessment Order for the A.Y. 1998-99 passed on 31.01.2001, the A.O. made addition of ₹ 424.27 Lacs without any basis or information or case or any other thing in hand against the assessee. 8. The Hon ble ITAT, Jaipur had mentioned in their order that the period involved w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e own case in A.Y 1996-97 differential duty of ₹ 1,45,61,753/-raised by the commissioner of Central Excise on 08.12.1998 stands upheld by the CESTAT, New Delhi and on the basis of above information addition was made in AY 1996-97. Therefore it appears that this type of practice of receiving on money has been in general and it is held that same type of practice of receiving unaccounted cash over and above the invoice price is existing in the year under consideration. It is also noted that Ld. CIT(A), Alwar vide his order no. 201/2000/01 dated 30.09.2014 confirmed the addition. Since this amount of differential duty formed basis of addition of ₹ 4,24,27,000/- in the assessee s income-tax assessment completed on 31.01.2001, the same consequently stands upheld. Hence, addition of ₹ 4,24,27,000/- is made to the income of the assessee. Further penalty proceedings U/s 271(1)(c) of the Income Tax Act, 1961 is also being initiated separately for furnishing inaccurate particulars of income by the assessee concealing income. 3. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A) and his findings are reproduced as under:- 6.3 I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch in August 2016. Once the CESAT order is pronounced, the nature of implications as well as the years involved would be clear and the Revenue as well as the assessee would be in a better position to put forward their respective contentions. Hence, the findings and directions contained in Coordinate Bench decision for A.Y. 1996-97 shall apply mutatis mutandis to the impunged assessment year as well. Hence, ground no. 7 of assessee is allowed for statistical purposes. 5. That the Hon'ble ITAT has clearly stated that the set aside assessment would be decided on the outcome of the CESTAT order with regard to the nature of implications as well as the year involved. 6. That Hon ble CESTAT has passed the order on 17/02/2017 In the said order, Hon'ble CESTAT has stated in the opening para itself that the period covered by the demand is April 1995 to August 1996.That further implication of the judgment to my mind is not relevant to the year under consideration as the matter involved is method of valuation of the out of book stocks found during the period in order to determine the duty evaded on such stocks. The relevant part of the CESTAT order is reproduced as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that there was no such case of under valuation booked against M/s Modi Alkalies Chemicals Ltd (now Lords Chloro Ltd) regarding F.Y: 1997-98. The copy of the letter is reproduced as under:- Office of the Superintendent of Central Excise and Service Tax, Range-1, Alwar C. No. GL-13/32/LCAL/Misc/447 15th July, 2014 The Assistant Commissioner, Income Tax Circle-1, Alwar. Sir, Sub : Providing information relating to the M/s Lords Chloro Alkali Chemicals Ltd. for F.Y. 1997-98-Reg. Please refer your letter C. No. ACIT/C-1/ALW/2014-15/302 dated 08.07.2014 on the subject cited above. In this connection it is submitted that as per record available there was no such case of under valuation booked against M/s Modi Alkalies Chemicals Limited, SP-460, Matasya Industrial Area, Alwar (Rajasthan) (now M/s Lords Chloro Alkali Chemicals Ltd.) regarding financial year 1997-98 and thereafter, so far. This for your information and necessary action please. Yours faithfully (Superintendent) Central Excise, Range-1, Alwar (Rajasthan) That in the assessment order passed in consequent to the set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and surmises. The A.O has not brought on record any instances or evidences of earning of the on money on account of under valuation or otherwise relevant for the period under consideration. In view of the direction of the ITAT and also the period covered by the CESTAT order was April 1995 to August 1996 and even the Department of Central Excise has not found any undervaluation for the period under consideration. Therefore the addition of ₹ 4,24,27,000/-is without any basis hence deleted. Appellant's ground of appeal on this issue is allowed. 4. Heard both the parties and purused the material available on record. We find that the ld CIT(A) has duly considered the directions of the Coordinate Bench in the first round, the findings of the CESTAT as limited to a specified period and not pertaining to period under consideration, confirmation from Central Excise department that there is no material or evidence for undervaluation for period under consideration and the fact that the AO has merely relied on past years findings and in absence of any material or evidence and only on presumptions, conjectures and surmises has made the additions. The Revenue has failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowance made in assessment year 1996-97 was deleted by the Hon'ble ITAT in ITA No.387/.IP/1 dated 19.08.2016. The Matter is set aside to the file of the AO to examine the above said contention of the assessee and where the same is found to be correct, the AO is directed to allow the necessary relief to the assessee following the order passed by the Co-ordinate Bench for A.Y. 1996-97. In view of the above; we are enclosing herewith the details of interest paid by the assessee company during the year. Further, we are enclosing herewith Schedule `D' of Final Accounts which shows that there is no increase in Unsecured Loans and Inter-Corporate Deposits. Since, there is no addition in ICD during the year under consideration, it is requested to delete the addition as per observation of Hon ble ITAT. The reply of the A/R of the assessee company is considered sympathetically but not found tenable because the department of companies affairs made an inspection u/s 209A. In the report it was observed that the company has either charged lower rate of interest or gave interest free loans. Assessee has charged interest as margin money at rate of 9.30% whereas he pay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-97 where the relief was granted on similar issue has been challenged in the Rajasthan High Court and final order has yet to come. I have considered the issue and as per the direction of the Hon'ble ITAT that if the assessee's contention is found to be correct vis-a-vs relief on the similar issue in A.Y: 1996-97 then the benefit is to be granted to assessee for the year under consideration also. Accordingly, the addition of ₹ 25 Lakhs is deleted with the direction that if a contrary judgment comes from Hon'ble Rajasthan High Court for the AY: 1996-97 in the appellant's own then it will apply for the AY 1998-99 also. 7. We have heard the rival contentions and perused the material available on record. In the first round, the Tribunal has set-aside the matter to the file of the AO to examine the contention of the assessee that there is no fresh ICD placed during the period under consideration and where the same is found to be correct, allow the relief to the assessee following the Tribunal s order for assessment year 1996-97 wherein similar addition was deleted. During the set-aside proceedings, we find that the assessee has submitted the details wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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