J.B. Metal Industries (P) Ltd., New ... vs Assessee

ITA NO.5363/Del/2010

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH "D", NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. No. 5363/DEL/2010 A.Y. : 2006-07 M/s J.B. Metal Industries (P) Ltd., ITO, Ward 4(1), D-288, Vivek Vihar, VS. Central Revenue Building, Delhi I.P. Estate, (PAN: AAACJ5000E) New Delhi - 110 002 (APPELLANT) (RESPONDENT)

Assessee by : Sh. D.V. Taneja, CA Department by : Sh. Gaurav Dudeja, Sr. DR

Date of Hearing : 22-6-2015 Date of Order : 24-6-2015 ORDER

PER H.S. SIDHU : JM The Assessee has filed the present appeal against the impugned order dated 19/10/2010 passed by the Ld. Commissioner of Income Tax (Appeals)-VII, New Delhi on the following grounds:-

"1. Ld. CIT(A) has erred in facts and in law in confirming addition.

As alleged Excess Stock of Copper Scarp Rs. 21,86,699/-.

2. The averment of AO that assessee has not filed reconciliation for excess stock is misconceived and is opposed to facts law and circumstances of case. And confirmed by the Ld. CIT(A) is bad in law.

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The appellant during course of proceedings had explained alleged stock of copper whereas it was guesstimate by excise personnel without weighting each bag. The

addition made is on account of mere surmises, conjectures and assumptions. The addition made and sustained by Ld. CIT(A) is bad in law.

The AO has erred in facts and in law in charging interest u/s. 234B. As appellant denies its liability for levy of such interest.

3. The order passed by Ld. CIT(A) towards confirmation of excess tock of copper is bad in law.

2. The facts narrated by the Revenue Authorities are not disputed by both the parties, therefore, need not to repeat the same for the sake of convenience.

3. At the time of hearing, Ld. Counsel of the assessee stated that

the AO has made the addition in dispute on the basis of

documentary evidence of the Excise authorities on account of

excess stock of cooper, collected by way of Survey by the Excise

Department. The Assessee has filed an Appeal before the

Commissioner (Appeals), Central Excise, Delhi-II against the order of

Joint Commissioner, Central Excise, Delhi-I. The Commissioner

(Appeals), Central Excise, Delhi-II has also decided the same

against the assessee and aggrieved with the said order of the

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Commissioner(Appeals), Central Excise, Delhi-II, assessee appealed

before the Custom, Excise and Service Tax Appellate Tribunal, New

Delhi where the Appeal is still pending.

3.1 Ld. First Appellate Authority has decided the issue in dispute

against the assessee on the basis of the finding of the Excise

Authorities without any independent evidence. He requested that

the issue in dispute may be set aside to the AO to decide the same,

keeping in view of the decision of the Custom, Excise and Service

Tax Appellate Tribunal, New Delhi.

4. Ld. Departmental Representative relied upon the orders

passed by the Revenue Authorities.

5. We have heard both the parties and perused the records as

well as the documentary evidences filed by the assessee in the

shape of Paper Book, we are of the view that Ld. CIT(A) has decided

the issue in dispute in para 4 & 4.1 at pages 2 & 3 in his impugned

order. For the convenience, we are reproducing the para 4 & 4.1 of

the impugned order as under:-

"4. Grounds of Appeal No.2(i) & 2(ii) relate to tile grievance of the appellant against the action of the Assessing officer in making an addition of Rs.21,86,669/- on account of Excess Stock of Copper. It was submitted 011 behalf of the appellant inter-alia that

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"Addition has been made on the basis of Survey by Excise Department. Basic defects in Survey of Excise Department-(a) No proper Weighment of Stock and (b)Stock was estimated on Guess Work and Eye Estimation. Excess and shortage not considered. If excess and shortage was properly considered there was neither Excess Nor Shortage.

The Appellant during course of proceedings had explained alleged Stock of Copper whereas it was guesstimate by excise personal without weighing in each bag. The addition made is on account of mere surmises, conjectures and assumptions. The addition made is bad in Law. During course of assessment proceeding. Te Assessee submitted that whatever is revealed by the physical verification of Stock by the excise department that is far beyond reality. Merely on the basis of eye estimation Department has drawn an adverse inference. It has been held in the scores of decision under the Excise Law that such kind of physical verification is not tenable in the eye of Law. We wish to submit below mentioned Case Law settled at the stage of Tribunal which is the highest fact finding authority:-

- Shiv Steel Rolling Mills Vs.CCE 2005 (186) ELT 326

(Tribunal)

- Bhushan Ltd Vs. CCE 2005 (186) ELT 197 (Tribunal)

- Moolchand Steels Ltd. Vs CCE 2005 (187) ELT 387

(Tribunal)

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- Agra Steel Corp. Vs.CCE 2002 (48) RLT 298 (Tribunal)

- Dhulichand Silk Mills Pvt.Ltd. Vs.CCE 2001 (133) ELT

468 (Tribunal).

If proper weighment would have been done there will not be any variation. Taking only excess and ignoring shortage and without reconciliation Addition has been made which is wholly unjustified and Deserves to be deleted. It was submitted before Ld. A.O. G.P. & NP. Comparison - Gross Profit and Net Profit comparison with the last two years is enclosed. From the chart it is evidence that Gross Profit ratio increased from 4.11% in Fin. Year 2003-04 to 6.37% in Fin. Year 2005-06 and similarly Net Profit ratio increased from 0.07% in Fin. year 2003-04 to 0.16% in fin.year 2005-06. Although there was decline in Turnover over the last two years there was increase. in G.P. & NP rates. Books of account are Audited Report of Auditor is clean. No discrepancy was noticed except alleged Survey of Excise Department. Considering Past History and no discrepancy noticed in Accounts the addition on mere guesstimate and without weighing each Bag the addition made is opposed to facts Law and circumstances of the Case. The addition made is unwarranted and has no relevance to books of account and stock. The addition made may please be ordered be deleted. Therefore, entire discrepancy on account of shortage of stock could not be treated as undisclosed income."

4.1 I have considered the written submission on behalf of the appellant, the findings of the Assessing Officer in 5 ITA NO.5363/Del/2010

the assessment order as well as in the remand report and the facts on record. It is found that the issue regarding excess stock of Copper scrap has been decided by the learned Commissioner(Appeals), Central Excise, Delhi-Il against the appellant thereby confirming the order passed by the Joint Commissioner, Central Excise, Delhi-I and the appellant has filed appeal against the order of Commissioner(Appeals),Central Excise, Delhi-Il before Customs, Excise and Service Tax Appellate Tribunal, New Delhi where the matter is still pending. Therefore l am of the considered view that the addition of Rs.21,86,669/-on account of Excess Stock of Copper deserves to be sustained. However A.O. may take action in consonance with the decision of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi. Subject to the above remarks, Grounds of Appeal No.2(i) & 2(ii) are dismissed."

6. After going through the aforesaid finding passed by the Ld.

CIT(A), we are of the view that Revenue Authorities have not given

any independent finding on the basis of any evidence except the

documentary evidence collected by the Customs & Excise

Department against which the assessee's appeal is pending before

the Custom, Excise and Service Tax Appellate Tribunal, New Delhi.

In the interest of justice, we are of the view that the issue in dispute

requires reconsideration/ readjudication at the level of the AO.

Accordingly, we direct the AO to decide the issue in dispute afresh

under the law, keeping in view of the decision of Customs, Excise &

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Service Tax Appellate Tribunal, New Delhi, after giving full

opportunity to the assessee of being heard and to produce any

evidence for substantiating its claim before the AO. We make it clear

that assessee has statutory right to appeal, if so, advised, before the

Competent Authority.

7. In the result, the appeal of the Assessee stands allowed for

statistical purposes.

Order pronounced in the Open Court on 24/06/2015.

Sd/- Sd/- [S.V. MEHROTRA] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER

Date 24/06/2015 "SRBHATNAGAR"

Copy forwarded to: - 1. Appellant - 2. Respondent - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY By Order,

Assistant Registrar, ITAT, Delhi Benches

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