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Income Tax Appellate Tribunal, MUMBAI BENCHES “E”, MUMBAI
Before: Shri Saktijit Dey, JM & Shri Manoj Kumar Aggarwal, AM
O R D E R Per Saktijit Dey, Judicial Member:
Aforesaid appeals by the same assessee are directed against a common order dated 22.01.2014, of learned CIT(A)-20, Mumbai, for the Assessment Years 2003-04, 2004-05, 2005-06 and 2006-07.
The only common issue arising for consideration in these appeals is in relation to addition made on account of under invoicing of sales detected by Central Excise Department.
Briefly, the facts are assessee - a company, is stated to be engaged in manufacture and sale of decorative ply and laminates. A search operation was conducted in the factory, office as well as residential premises of the assessee company and its directors by the Director General of Central Excise Intelligence, Bangalore Zonal Unit on 26.05.2005 and on subsequent dates.
It is alleged, during the search operation various incriminating records/documents were recovered, which revealed that assessee was grossly under invoicing the goods manufactured by it to evade payment of Central Excise Duty. On the basis of the material found as a result of search, the Central Excise Department issued a show cause notice to the assessee alleging evasion of Central Excise Duty to the tune of `.10,16,73,650/- during the period April 2002 to May 2005. On the basis of the information obtained from the Central Excise Department revealing under invoicing of sales by the assessee, the AO reopened the assessment u/s. 147 of the Act for the impugned assessment years and ultimately completed the assessment by making substantial additions at the hands of the assessee. As it emerges from record, the assessee challenged the addition made on account of suppression/under invoicing of sales before the CIT(A) and, thereafter, before the ITAT. The ITAT while disposing off the appeals of the assessee restored the issue back to the file of the AO for fresh adjudication on the basis of the final adjudication to be made by the Central Excise Department in pursuance to the order of CESTAT. As it appears, in pursuance to the direction of the ITAT, the AO again completed the assessment by repeating the additions made in the original assessment orders. Aggrieved of the assessment orders, so passed, the assessee preferred appeals before the CIT(A). The CIT(A) after considering the submissions of the assessee and perusing the materials on record having found that in pursuance to the directions of the CESTAT, the Commissioner of Central Excise has made fresh adjudication, wherein the suppression/under invoicing of sales were qualified at a substantially reduced figure, restricted the addition to such revised figure. As per the fresh adjudication order of the Central Excise Commissioner the additions on account of under invoicing of sales finally sustained by the CIT(A) for different assessment years are as under:
Assessment Year Additions sustained by CIT(A) 2003-04 1,35,07,119 2004-05 1,87,23,706 2005-06 1,92,34,806
2006-07 38,88,525 Thus, the total addition sustained by the CIT(A) for all the assessment years under appeal amounted to `.5,53,54,156/- as against additions of `.103,43,37,283/- made by the AO. Still aggrieved with the order of the CIT(A) assessee is before us.
When the appeals were called for hearing, no one was present on behalf of the assessee to represent the case. On perusal of record, it is seen that on 2.11.2016, when the appeal was last fixed for hearing, no one appeared for the assessee. Therefore, while adjourning the appeals to this date, the Bench directed issuance of notice of hearing to the assessee through RPAD. As could be seen from the postal acknowledgement placed on record the notice of hearing issued through RPAD was duly served on the assessee on 14.12.2016. However, inspite of service of notice, neither the assessee has appeared nor has filed any application seeking adjournment.
This shows complete recalcitrant attitude of the assessee and lack of interest in pursuing its appeals. That being the case, we proceed to dispose of the appeals exparte qua the assessee, after hearing the learned DR and on the basis of the materials available on record.
As could be seen from the facts on record, on the basis of search operation carried out in case of the assessee by the Central Excise Authorities, various incriminating materials were recovered indicating under invoicing of sales by the assessee on the basis of which additions were made by the AO. However, as could be seen, the CESTAT while deciding assessee’s appeal restored the matter back to the Commissioner Central Excise for fresh adjudication. On the basis of the order passed by CESTAT, the ITAT also restored the issue back to the file of the AO for fresh adjudication on the basis of the order to be passed by the Commissioner, Central Excise. It is evident from the order of the CIT(A) that the Commissioner Central Excise, in the meanwhile, has made fresh adjudication on the under invoicing of sales in pursuance to the directions of the CESTAT and has revised the actual suppression/under invoicing of sales made by the assessee. Undisputedly, the CIT(A) has also restricted the addition on the basis of the under invoicing/suppression of sales finally adjudicated by the Commissioner of Central Excise in pursuance of directions of CESTAT. We have further noted, the CIT(A) taking into account the fact that the adjudication made by Central Excise Commissioner was subjected to further appeal before the CESTAT, directed the AO to give consequential effect to the additions made on account of under invoicing of sales on the basis of the final order of the CESTAT. In our view, the order passed by the CIT(A) is reasonable and calls for no interference. Moreover, the assessee has neither appeared before us nor brought any material to indicate that the quantum of under invoiced sales determined by Central Excise Commissioner have been interfered with by CESTAT. That being the case, we do not find any infirmity in the order of the CIT(A). Accordingly, the grounds raised by the assessee being devoid of merit are dismissed.
In the result, all the appeals of the assessee are dismissed.
Order pronounced in the open court on 3rd day of May 2017.