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Income Tax Appellate Tribunal, DELHI BENCHES: ‘C’, NEW DELHI
Before: SHRI N.K.SAINI & SMT. BEENA A PILLAI
ORDER
PER BEENA A PILLAI, JUDICIAL MEMBER
The present appeal has been filed by revenue against order dt. 18/02/2015 passed by Ld.CIT(A)-3, New Delhi for A.Y. 2006- 07 on the following grounds of appeal. “1. Whether on the facts and circumstances of the case and in law, Ld. CIT(A) has erred in deleting the addition of Rs.1,68,72,426/- made by A.O. on account of non-payment payment of excise duty? 2. “Whether on the facts and circumstances of the case and in law, Ld. CIT(A) has erred in deleting the addition of Rs.1,68,72,426/- made by A.O. on account of non-payment payment of excise duty by entertaining fresh evidence in the form of order of Commissioner of Central Excise-III, Delhi in contravention of Rule 46A(3) of the Income Tax Rules?
3. The appellant craves leave to add, alter or amend any grounds of appeal raised above at the time of the hearing .
DCIT, Circle 7(2) vs. Dhir Global Industries P Ltd. 2. Brief facts of the case are as under:
Assessee is a company, and is 100% export oriented unit engaged in manufacture and export of ready-made garments. For the year under consideration assessee company had declared income of Rs.11,28,068/- vide return dated 18/01/07. Assessment was completed under section 143(3) of Income Tax Act, 1961 (hereinafter referred to as "the Act") at Rs.2,17,64,870/-. Assessee challenged the said order before the Ld.CIT(A) which was again subject to challenge before this Tribunal. Ld.AO has recorded that this Tribunal granted relief to assessee and income was again determined at the returned income filed by assessee vide original return of income. 2.1. Subsequently upon the communication received from Office of Director General of Intelligence Central excise, New Delhi, a search on factory premises of assessee was conducted on 20/08/10. It came to the notice of Ld.AO that company has prepared two sets of accounts out of which one is submitted to the Central Excise Department and the other to the Income Tax Department or Registrar of Companies. Another aspect which was observed by Ld.AO was that assessee had claimed benefit for excise duty in different Assessment Years whereas during the search it appeared that the challans of payment duty were not genuine. Thus the claim of excise duty held to be not genuine for years 2002-03, 2004-05 and 2008-09. Various details were called for and on submissions made by assessee, Ld. AO added a sum of Rs.1,68,72,426/-on account of non-payment of excise duty and also on account of making false claim in the return of income. 2 DCIT, Circle 7(2) vs. Dhir Global Industries P Ltd. 2.2. Aggrieved by the order of Ld. AO, assessee preferred appeal before Ld. CIT (A). 2.3. Before Ld.CIT (A) assessee submitted that, the demand notice issued by excise authorities has been adjudicated and reduced to ‘nil’ vide order dated 11/07/14 passed by Excise Department. Assessee placed before Ld.CIT(A) the order dated 11/07/14 passed by the Commissioner of Central Excise-3, Delhi for the year under consideration. Ld.CIT(A) on the basis of the order dated 11/07/14 passed by Commissioner of Central Excise-3, Delhi, deleted the addition made by Ld.AO 3. Aggrieved by the order of Ld. CIT (A) revenue is in appeal before us now. 3.1. Ld. Sr.DR supported order of Ld.AO. 3.2. On the contrary, Ld.AR placed reliance upon order passed by Ld. CIT (A).
We have perused submissions advanced by both sides in the light of the records placed before us.
It is observed that, there is a categorical recording by Ld. CIT(A) of the addition on differential excise duty, worked out by Commissioner Central Excise-3, Delhi at ‘nil’ for financial year relevant to assessment year under consideration. Further upon perusal of the assessment order at page 8, it is observed that Assessing Officer has prepared a chart wherein the differential duty amount for the year under consideration amounts to Rs.1,68,72,426/-. As Commissioner Central Excise-3, Delhi has worked out the differential excise duty for the year under consideration to be at ‘nil’ the entire basis for addition for the year under consideration by Ld. AO does not exist.
DCIT, Circle 7(2) vs. Dhir Global Industries P Ltd. 6. Accordingly we do not find any infirmity in the order of Ld. CIT (A) and the same is upheld. 7. In the result appeal filed by revenue stands dismissed. Order pronounced in the Open Court on 12th September, 2018.