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04-06-2019, Welsuit Glass & Ceramics, Section 147, 9D, 35-G, Tribunal Ahmedabad

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3 months 1 week ago - 3 months 1 week ago #9669 by amit
Section - 147, 9D, 35-G, 11A(1), 11AC, 3A, 36B, 9(D)(1)(a)
Order Date - 04-06-2019
Favouring - Assessee
Court - Tribunal Ahmedabad
Appellant - DCIT
Respondent - Welsuit Glass & Ceramics Pvt. Ltd.
Justice - P P Bhatt & Pramod Kumar VP
Citation - 619Taxpundit85
Appeal No. - ITA No.1886/Ahd/2017
Asstt. Year - 2008-09

Order

PER : Pramod Kumar,

1. By way of this appeal, the Assessing Officer has challenged correctness of the order dated 08.05.2017 passed by the ld. CIT(A) in the matter of assessment under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 for the assessment years 2008-2009.

2. Grievances raised by the Assessing Officer are as follows :-

“1. On the facts of the case and on the circumstances and in law, the CIT(A)-2, Vadodara erred in holding that “once demand cum show cause notice and the order of Commissioner of Central Excise on the basis of which the assessment order u/s.143(3) r.w.s. 147 had been passed are quashed, the addition made in the assessment order by relying upon the demand cum show cause and the order of the Excise Commissioner has to be automatically deleted” without appreciating that the AO had not only relied on the demand cum show cause notice and order of Commissioner of Central Excise and Custom, Vadodara, but had also independently corroborated the facts for determining the profit earned from suppressed sales, as is evident from the findings recorded in para No.14 and 15 of the assessment order.

2. On the facts of the case and on the circumstances and in law, the CIT(A)-2, Vadodara erred in holding that “once demand cum show cause Notice and the order of Commissioner of Central Excise on the basis of which the assessment order u/s.143(3) r.w.s. 147 had been passed are quashed, the addition made in the assessment order by relying upon the demand cum show cause and the order of the Excise Commissioner has to be automatically deleted” without calling for remand report from the AO, and without giving an opportunity to the AO to inquire from the Commissioner of Central Excise & Custom, Vadodara about the acceptance of order of Hon’ble CESAT Ahmedabad and filing of appeal against order of Hon’ble CESAT, Ahmedabad to Hon’ble Gujarat High Court.”

3. When this appeal was called out for hearing, learned representatives fairly agree that the issue in the appeal is now covered, in favour of the assessee, by a co-ordinate bench’s decision dated 12.02.2019, in ITA Nos.23, 24, 25 & 26/Ahd/2016, in assessee’s own case filed by the Revenue, for the assessment years 2006-07, 2007-08, 2008-09 & 2010-11, wherein the Tribunal has observed as follows :-

“3. When these appeals were called out for hearing, learned representatives fairly agree that the issue in the appeals is now covered, in favour of the assessee, by a co-ordinate bench’s decision dated 11.07.2018 in ITA Nos.2783 to 2787/Ahd/2015 in the case of DCIT, Vadodara vs Belgium Glass & Ceramics Pvt. Ltd., Vadodara for the assessment years 2005-06 to 2009-10 wherein the Tribunal after following the decision of M/s. Zirconia Cera Tech Glazes & M/s. Growmore Ceramics vs. DCIT (ITA Nos. 376 & 377/Ahd/2016 for AYs 2007-08 & 2008-09 and ITA Nos.988, 989 & 990/Ahd/2016 for AYs 2006-07 to 2008-09; order dated 30.11.2017), has observed as follows :-

6. We see no reasons to take any other view of the matter than the view so taken by the co-ordinate bench in the case of M/s. Zirconia Cera Tech Glazes & M/s. Growmore Ceramics (supra). In the said decision, the coordinate bench has, inter alia, observed as follows:-

“10. Now assessee has filed appeal before us on the ground raised by assessee as already reproduced in Para 2. The stand of the ld. Authorized Representative on behalf of assessee is that additions havebeen solely made on the basis of showcause notice issued by the DGCEI wherein, it was observed that assessee is engaged in under valuation of sales and clandestine removal of goods. Thus, Assessing Officer has reopened assessment solely on the basis of SCN issued by DGCEI and ultimately made additions of estimated Gross Profit, on under valuation of sales and clandestine removal of goods without independent application of mind. Ld. Authorised Representative further submitted that under excise proceedings, adjudicating authority passed the order, which was ultimately carried in appeal upto Hon’ble CESTAT. Hon’ble CESTAT vide order dated 12.02.2015 has decided the issue in favour of the assessee by holding that department cannot estimate value of alleged suppression of sales as well as clandestine removal of goods merely on the basis of assumption and surmises. The operative portion of CESTAT order is reproduced here as under:

“6. In these proceedings the following issues are required to be deliberated upon:-

(i) Whether the appellants mentioned in Para 5.1 above have indulged in clandestine manufacture and clearance of Ceramic Glazed Mixture (Frit), in view of the adjudication orders passed the adjudicating authorities on the basis of natural gas consumption norms per metric ton?

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Last edit: 3 months 1 week ago by amit.

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