ACIT, Central Circle-3, New Delhi, New Delhi v. Bhushan Steel Ltd., New Delhi

ITA 1601/DEL/2018 | 2010-2011
Pronouncement Date: 11-03-2021 | Result: Dismissed

Appeal Details

RSA Number 160120114 RSA 2018
Assessee PAN AAACB1247M
Bench Delhi
Appeal Number ITA 1601/DEL/2018
Duration Of Justice 3 year(s) 4 day(s)
Appellant ACIT, Central Circle-3, New Delhi, New Delhi
Respondent Bhushan Steel Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 11-03-2021
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 11-03-2021
Assessment Year 2010-2011
Appeal Filed On 07-03-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI AMIT SHUKLA JUDICIAL MEMBER AND SHRI O.P. KANT ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.1600/DEL./2018 ASSESSMENT YEAR: 2009-10 ACIT CENTRAL CIRCLE-3 NEW DELHI VS. M/S. BHUSHAN STEEL LTD. F-BLOCK 1 ST FLOOR INTERNATIONAL TRADE TOWER NEHRU PLACE NEW DELHI PAN :AAACB1247M (APPELLANT) (RESPONDENT) AND ITA NO.1491/DEL./2018 ASSESSMENT YEAR: 2009-10 M/S. BHUSHAN STEEL LTD. BHUSHAN CENTRE HYATT REGENCY COMPLEX BHIKAJI KAMA PLACE NEW DELHI VS. ACIT CENTRAL CIRCLE-3 NEW DELHI PAN :AAACB1247M (APPELLANT) (RESPONDENT) AND ITA NO.1601/DEL./2018 ASSESSMENT YEAR: 2010-11 ACIT CENTRAL CIRCLE-3 NEW DELHI VS. M/S. BHUSHAN STEEL LTD. F-BLOCK 1 ST FLOOR INTERNATIONAL TRADE TOWER NEHRU PLACE NEW DELHI PAN :AAACB1247M ( APPELLANT ) (RESPONDENT) 2 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 AND ITA NO.1492/DEL./2018 ASSESSMENT YEAR: 2010-11 M/S. BHUSHAN STEEL LTD. F-BLOCK 1 ST FLOOR INTERNATIONAL TRADE TOWER NEHRU PLACE NEW DELHI VS. ACIT CENTRAL CIRCLE-3 NEW DELHI PAN :AAACB1247M (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT AM: THESE CROSS APPEALS BY THE REVENUE AND THE ASSESSEE ARE DIRECTED AGAINST A COMMON ORDER DATED 29/12/2017 IN THE CASE OF THE ASSESSEE ALONG WITH OTHER GROUP ENTITIES PA SSED BY THE LEARNED CIT(APPEALS)-23 NEW DELHI [IN SHORT THE L D. CIT(A)] FOR ASSESSMENT YEARS 2009-10 AND 2010-11 RESPECTIVELY. THE APPEALS BEING CONNECTED TO SAME ASSESSEE THESE WERE HEARD TOGETHER AND DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER FOR CONVENIENCE. 2. THE GROUNDS RAISED IN THE APPEAL OF THE REVENUE (I TA NO. 1600/DEL/2018) AND APPEAL OF THE ASSESSEE (ITA NO. 1491/DEL/2018) FOR ASSESSMENT YEAR 2009-10 ARE REPR ODUCED AS UNDER: 2.1 GROUNDS OF APPEAL OF THE REVENUE: 1. THE ORDER OF LEARNED CIT(A) IS NOT CORRECT IN LA W AND ON FACTS. DEPARTMENT BY SHRI SATPAL GULATI CIT (DR) ASSESSEE BY SHRI ASHWANI KUMAR ADV. DATE OF HEARING 23.02.2021 DATE OF PRONOUNCEMENT 11.03.2021 3 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN LAW IN BY RELYING UPON THE ORDER OF THE HONBLE HIGH COURT IN THE CASE OF KABUL CHAWLA. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW IN QUASHING THE ASSESSMENT ORDER FRAME D U/S 153A OF THE INCOME-TAX ACT 1961. 4. THE APPELLANT CRAVES LEAVE TO ADD AMEND ANY/ALL THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF TH E APPEAL. 2.2 GROUNDS OF APPEAL OF THE ASSESSEE: (1) THAT THE ORDER DATED 29-12-2017 PASSED U/S 250 OF THE INCOME- TAX ACT 1961 (HEREINAFTER CALLED THE ACT) BY THE LD COMMISSIONER OF INCOME-TAX (APPEALS) 23 NEW DELHI IS AGAINST LAW AND FACTS ON THE FILE IN AS MUCH AS HE WAS NOT JUSTIFIED TO UPHOLD THE ACTION OF THE LEARNED ASSISTANT COMMISSI ONER OF INCOME TAX CENTRAL CIRCLE-3 NEW DELHI IN MAKING A N ADDITION/DISALLOWANCE OF RS. 14 00 06 089/- (COMPRI SED OF ALLEGED BOGUS ZINC PURCHASED FROM M/S HINDUSTAN ZIN C LIMITED OF RS. 13 59 00 614/- AND TRANSPORT EXPENSES PAID TO M /S MEWAT TRANSPORT COMPANY OF RS. 41 05 475/-) WHILE COMPUT ING THE INCOME UNDER THE NORMAL COMPUTATIONAL PROVISIONS OF THE ACT. (2) THAT THE ORDER DATED 29-12-2017 PASSED U/S 250 OF THE ACT BY THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) 23 NE W DELHI IS AGAINST LAW AND FACTS ON THE FILE IN AS MUCH AS HE WAS NOT JUSTIFIED TO REJECT THE RESULTS SHOWN BY THE AUDITE D BOOKS OF ACCOUNTS ESTIMATE THE PROFIT ON THE BASIS OF BEST JUDGEMENT METHOD BY APPLYING THE PROVISIONS OF SECTION 144 OF THE ACT AND ARBITRARILY ENHANCING THE INCOME OF THE APPELLANT C OMPANY BY RS. 233 47 93 910/- (BY ENHANCING THE DECLARED NET PROF IT RATE BY 5% ON THE BASIS OF THE RESULTS DECLARED BY M/S TATA ST EEL LTD) TO BE TELESCOPED AGAINST THE ADDITIONS ALREADY MADE IN TH E ASSESSMENT ORDER WITHOUT CONSIDERING THE CIRCUMSTANCES OPERAT ING CONDITIONS AND OTHER FACTS RELEVANT TO THE CASE. (3) THAT THE ORDER DATED 29-12-2017 PASSED U/S 250 OF THE ACT BY THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) 23 NE W DELHI IS AGAINST LAW AND FACTS ON THE FILE IN AS MUCH AS HE WAS NOT JUSTIFIED TO DIRECT THE LD ASSESSING OFFICER U/S 15 0(1) OF THE ACT TO EXAMINE THE CASE OF THE APPELLANT COMPANY U/S 147/1 48 OF THE ACT INDEPENDENTLY AND IN CASE THE CONDITIONS UNDER RELEVANT SECTIONS ARE FOUND TO BE SATISFIED TO INITIATE PRO CEEDINGS NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 149 S UBJECT TO PROVISIONS OF SECTION 150(2) OF THE ACT. (4) THAT THE ORDER DATED 29-12-2017 PASSED U/S 250 OF THE ACT BY THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-23 NE W DELHI IS AGAINST LAW AND FACTS ON THE FILE IN AS MUCH AS HE WAS NOT JUSTIFIED TO INITIATE PENALTY PROCEEDINGS U/S 271(1 )(C) OF THE ACT FOR ALLEGED CONCEALMENT AND FURNISHING OF INACCURATE PA RTICULARS OF 4 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 INCOME ON THE GROUND THAT THE TOP MANAGEMENT OF THE APPELLANT COMPANY WAS ALLEGEDLY INVOLVED IN PLANNED AND DELIB ERATE ACTIVITIES THEREBY RESULTING IN ALLEGED UNDER REPOR TING (BECAUSE OF ALLEGED SIPHONING OFF) OF THE PROFITS OF THE APPELL ANT COMPANY AND ALLEGED NON-REFLECTION OF TRUE STATE OF AFFAIRS IN THE BOOKS OF ACCOUNT. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSE SSEE COMPANY WAS ENGAGED IN MANUFACTURING OF STEEL PRODU CTS AND FILED ITS REGULAR RETURN OF INCOME ON 10/11/2010 DE CLARING INCOME OF 258 11 09 012/-. SUBSEQUENTLY A SEARCH AND SEIZUR E ACTION UNDER SECTION 132 OF THE INCOME-TAX ACT 196 1 (IN SHORT THE ACT) WAS CARRIED OUT AT THE PREMISES OF THE A SSESSEE ON 13/06/2014 ALONG WITH OTHER GROUP CONCERNS. CONSEQU ENTLY NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED ON 04/02/2015 AND IN RESPONSE THEREON THE ASSESSEE FILED A COPY RETURN OF INCOME DATED 10/11/2010. THE SCRUTINY PROCEEDINGS U NDER SECTION 153A OF THE ACT WERE COMMENCED AND STATUTOR Y NOTICES UNDER THE ACT WERE ISSUED AND COMPLIED WITH. IN THE ASSESSMENT ORDER UNDER SECTION 153A READ WITH SECTION 143(3) O F THE ACT WAS PASSED ON 30/12/2016 AFTER MAKING ADDITIONS OF 14 00 06 089/-. ON FURTHER APPEAL THE LD. CIT(A) NOT ONLY UPHELD THE ADDITION ON MERIT BUT ALSO MADE ENHANCEM ENT HOWEVER HE ALLOWED THE LEGAL GROUNDS IN FAVOUR OF THE ASSESSEE QUASHING THE ASSESSMENT. AGGRIEVED BOTH THE REVENU E AND THE ASSESSEE ARE IN APPEAL BEFORE THE TRIBUNAL RAISING THE GROUNDS AS REPRODUCED ABOVE. 4. BEFORE US BOTH THE PARTIES APPEARED THROUGH VIDEO CONFERENCING FACILITY. 5 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 5. AT THE OUTSET LEARNED COUNSEL OF THE ASSESSEE SUB MITTED THAT LD. CIT(A) HAS ALLOWED THE LEGAL GROUND I.E. IN ABSENCE OF AN INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH NO ADDITION CAN BE MADE U/S. 153A OF THE ACT IN THE CO MPLETED ASSESSMENTS FOLLOWING THE DECISION OF THE JURISDIC TIONAL HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (2016) 380 ITR 0573 (DEL). THE LEARNED COUNSEL SUBMITTED THAT IN VIEW OF NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF T HE SEARCH AT THE PREMISES OF THE ASSESSEE NO ADDITIONS CAN BE S USTAINED IN THE CASE OF THE ASSESSEE AND IF THE ORDER OF THE LEARNE D CIT(A) IS UPHELD ON LEGAL GROUND ON LEGAL GROUND THEN THE AP PEALS OF THE ASSESSEE WOULD BE RENDERED INFRUCTUOUS. 6. THE LEARNED CIT(DR) ON THE OTHER HAND RELIED ON T HE ORDER OF THE LOWER AUTHORITIES ON THE GROUND RAISED ON ME RIT BY THE ASSESSEE. 7. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE MAIN ISSUE OF THE ADDITION BY THE AO IN THE YEAR UNDER CONSIDERATION IS DISALLOWA NCE OF DEDUCTION CLAIMED BY THE ASSESSEE IN RESPECT OF PUR CHASE OF ZINC FROM M/S HINDUSTAN ZINC LTD (HZL) HARIDWAR AND TRA NSPORT EXPENSES PAID TO M/S MEWAR TRANSPORT COMPANY. THE A SSESSING OFFICER MADE ADDITION IN RESPECT OF THE ABOVE TWO I TEMS BASED ON THE EVIDENCE GATHERED IN THE SEARCH CARRIED OUT BY THE DIRECTOR GENERAL OF CENTRAL EXCISE DEPARTMENT KHOPOLI UNIT AT THE PREMISES OF THE ASSESSEE AND SUBSEQUENT ORDER PASSE D BY THE CUSTOMS AND CENTRAL EXCISE SETTLEMENT COMMISSION. T HE LD. CIT(A) ALLOWED THE LEGAL GROUND IN FAVOUR OF THE AS SESSEE OBSERVING AS UNDER: 6 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 10.1 VIDE GROUND NO. 2 THE APPELLANT HAS CONTESTE D THAT ASSUMPTION OF JURISDICTION U/S 153A IS NOT AS PER L AW BECAUSE NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH QUA THE ADDITIONS MADE DURING THIS A.Y. THE APPELLANT RELIE D UPON VARIOUS JUDGMENTS AS STATED IN THE WRITTEN SUBMISSION. DURI NG THE HEARING THE AR MAINLY RELIED UPON THE RATIO OF HONBIE DELH I HIGH COURT IN CASE OF KABUL CHAWLA 61 TAXMARIN.COM 412 (DEL-HC). 10.2 IN CIT (C)-III VS. KABUL CHAWLA (DELHI) [2015] 61 TAXMANN.COM 412 (DELHI) 234 TAXMAN 300 THE HONBLE JURISDICTION AL HIGH COURT OF DELHI HAVE HELD THAT AN ASSESSMENT HAS TO BE MADE U NDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL AND IN ABSENCE OF ANY INCRIMINATING MATERIAL THE COMPLETED ASSESSMENT CA N BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MA DE AND THAT COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON T HE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE CO URSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME O R PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT P RODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF O RIGINAL ASSESSMENT AND CONCLUDED THAT SINCE NO INCRIMINATI NG MATERIAL WAS UNEARTHED DURING THE SEARCH NO ADDITIONS COULD HAV E BEEN MADE TO THE INCOME ALREADY ASSESSED. THIS JUDGMENT HAS BEEN CONSIDERED IN ALL THE EXISTING JUDGMENTS ON THE MATTER SOME OF W HICH HAVE BEEN REFERRED TO BY THE AR IN HIS ARGUMENTS. 10.3 HONBLE DELHI HIGH COURT IN A RECENT JUDGMENT DELIVERED IN CASE OF PRINCIPAL COMMISSIONER OF INCOME-TAX CENTR AL -2 NEW DELHI VS. MEETA GUTGUTIA [2017] 82 TAXMANN.COM 287 (DELHI ) HAS HELD THAT INVOCATION OF SECTION 153A BY REVENUE FOR ASSESSMEN T YEARS 2000- 01 TO 2003-04 WAS WITHOUT ANY LEGAL BASIS WHERE THE RE WAS NO INCRIMINATING MATERIAL QUA EACH OF THOSE ASSESSMENT YEARS. THE RELEVANT PORTION OF THE JUDGMENT IS REPRODUCED AS U NDER: '38. IT APPEARS THAT THE SEIZED CASH WAS ADDED TO T HE INCOME DURING THE YEAR OF SEARCH AND NOT IN RELATION TO AN Y OF THE OTHER AYS I.E. AYS 2000-01 TO 2004-05. THE DOCUMEN TS AS STATED BY THE REVENUE IN ITS MEMORANDUM OF APPEAL I N ITA NO. 306/2017 VIZ. ANNEXURES A1 A3 TO A5 STATED TO PERTAIN TO AY 2003-04 2005-06 2004-05 AND 2005- 07 RESPE CTIVELY HAVE NEITHER BEEN DESCRIBED AS SUCH OR IN ANY DETAI L BY THE REVENUE EITHER IN THESE APPEALS. THEY HAVE NOT BEEN REFERRED TO OR DISCUSSED IN ANY OF THE ORDERS OF THE AO OR T HE CIT (A). ALTHOUGH IT WAS REPEATEDLY URGED BY MR. MANCHANDA T HAT THERE WERE 'HUNDREDS OF SEIZED DOCUMENTS' WHAT IS NECESSARY TO EXAMINE IS WHETHER THEY WERE IN FACT 'INCRIMINATING DOCUMENTS'. ANY AND EVERY DOCUMENT C ANNOT BE AND IS IN FACT NOT AN INCRIMINATING DOCUMENT. THE L EGAL 7 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 POSITION AS WILL BE DISCUSSED SHORTLY IS THAT THE RE CAN BE NO ADDITION MADE FOR A PARTICULAR AY WITHOUT THERE BEI NG AN INCRIMINATING MATERIAL QUA THAT AY WHICH WOULD JUST IFY SUCH AN ADDITION. THEREFORE THE MERE FACT THERE MAY HAV E BEEN DOCUMENTS PERTAINING TO THE ABOVE AYS DOES NOT SATI SFY THE REQUIREMENT OF TAW THAT THERE MUST BE INCRIMINATING MATERIAL. IN ANY EVENT THE AFOREMENTIONED DOCUMENTS I.E. A1 A3 A4 AND A5 PERTAIN TO ONLY SOME OF THE AYS WITH WHICH W E ARE CONCERNED I.E. AYS 2003-04 AND 2004-05. THE COURT IS UNABLE TO ACCEPT THE SUBMISSIONS OF MR. MANCHANDA T HAT THERE WAS INCRIMINATING MATERIAL OTHER THAN WHAT HAS BEEN DISCUSSED IN THE ORDERS OF THE AO CIT (A) AND THE ITAT FOR THE AYS IN QUESTION. 39. IT REQUIRES TO BE NOTICED AT THIS STAGE THAT FO R AY 2004-05 THE ITAT HAS PROCEEDED ON THE BASIS THAT THERE WAS INCRIMINATING MATERIAL AND THAT FINDING HAS BECOME FINAL SINCE THERE IS NO APPEAL BEFORE THIS COURT BY THE ASSESSE E. IT IS ANOTHER MATTER THAT THE ITAT REJECTED THE PLEA OF T HE REVENUE THAT FOR THE SAID AY THE CIT (A) WRONGLY DELETED FI VE OF THE ADDITIONS MADE BY THE AO FOR THAT AY ON SUCH INCRIM INATING MATERIAL. CONSEQUENTLY THIS COURT HAS TO ONLY EXAM INE THE JUSTIFICATION FOR INVOCATION OF SECTION 153A BY THE REVENUE FOR AYS 2000-01 TO 2003-04. (EMPHASIS SUPPLIED). 10.3.1 IN VIEW OF THE ABOVE STATED JUDICIAL PRONOUN CEMENTS IT IS HELD THAT THE AO WAS NOT WITHIN THE JURISDICTION BESTOWE D ON HIM BY LAW TO MAKE THE IMPUGNED ADDITION AND THEREFORE GROUN D NO.2 IS ALLOWED AND THE IMPUGNED (RE-ASSESSMENT ORDER) UNDE R REFERENCE IS ACCORDINGLY QUASHED THE ADDITIONS CONFIRMED (AS AB OVE) AND ENHANCEMENT MADE (AS ABOVE) WOULD NOT HAVE OPERATIO NAL EFFECT (DUE TO ALLOWING OF THIS GROUND.) 7.1 THE REVENUE IS AGGRIEVED WITH THE ABOVE FINDING OF THE LEARNED CIT(A). AS FAR AS GROUNDS NO. 2 & 3 OF THE APPEAL OF THE REVENUE IS CONCERNED WE HAVE TO EXAMINE WHETHER T HE RATIO OF THE DECISION IN THE CASE OF THE KABUL CHAWLA (SUPRA) IS APPLICABLE ON THE FACTS OF THE ASSESSEE IN THE YEAR UNDER CONS IDERATION. IN THE SAID DECISION THE HONBLE HIGH COURT HAS HELD THAT IN ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH NO ADDITION CAN BE MADE U/S 153A OF THE ACT IN 8 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 COMPLETED ASSESSMENTS. THUS FOR APPLICABILITY OF T HE RATIO OF THE KABUL CHAWLA (SUPRA) TWO CONDITIONS AS UNDER ARE REQUIRED TO B E FULFILLED: (I) NO ASSESSMENT PROCEEDINGS WERE PENDING AS ON THE DATE OF THE SEARCH. (II) NO INCRIMINATING MATERIAL IS FOUND DURING THE COURS E OF THE SEARCH UNDER SECTION 132 OF THE ACT. 7.2 AS FAR AS FIRST CONDITION IS CONCERNED IT IS ADMI TTED POSITION THAT NO ASSESSMENT WAS PENDING ON THE DATE OF THE S EARCH. THE ONLY DISPUTE IS REGARDING THE SECOND CONDITION I.E . NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF THE SEARCH. THE FACT THAT NO INCRIMINATING MATERIAL WAS FOUND D URING THE COURSE OF THE SEARCH IS EVIDENT FROM THE ORDER OF LOWER AUTHORITIES AS UNDER : (I) THE ASSESSING OFFICER IN PARA 4.1 OF THE ASSES SMENT ORDER HAS MENTIONED AS HOW THE SAID EVIDENCES WERE GATHERED THROUGH A TAX EVASION PETITION RECEIVED DU RING ASSESSMENT PROCEEDINGS. THE RELEVANT PARA OF THE ASSESSMENT ORDER IS REPRODUCED FOR READY REFERENCE: 4.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH IS OFFICE RECEIVED A TAX EVASION PETITION(TEP) IN WHIC H IT WAS STATED THAT M/S BSL WAS ENGAGED IN AVAILING CENVAT CREDIT OF CENTRAL EXCISE DUTY PAID ON ZINC INGOTS B OUGHT FROM M/S HINDUSTAN ZINC LTD(HZL) HARIDWAR IN A FRAUDULE NT MANNER AND ZINC SO PURCHASED WAS SOLD IN OPEN MARKE T AT DELHI/ALIGARH/AGRA AND CENVAT CREDIT WAS AVAILED AT THEIR KHOPALI PLANT AT MAHARASTRA ON THE BASIS OF INVOICES ONLY & WITHOUT USING THE SAME IN MANUFACTURING OF F INISHED GOOD. FURTHER IN THIS TEP IT WAS MENTIONED THAT A SEARCH ACTION WAS CONDUCTED BY DIRECTORATE GENERAL OF CENT RAL EXCISE INTELLIGENCE AT VARIOUS PREMISES OF M/S BSL ON 20.03.2013. IN THIS SEARCH IT WAS FOUND THAT M/S B SL WAS AVAILING THE CENVAT CREDIT IN FRAUDULENT MANNER WIT HOUT 9 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 ACTUALLY USING ZINC PURCHASED FROM M/S HZL. FURTHER IN THIS TEP IT WAS ALSO STATED THAT M/S BSL PAID THIS CENTRAL EXCISE DUTY AFTER THE ORDER OF HONBLE CUSTOM & EXC ISE SETTLEMENT COMMISSION OF RS.24 01 19 291. (II) IN PARA 4.3 OF THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS MENTIONED THE ORDER OF THE CUSTOMS AND CENTRAL EXCISE SETTLEMENT COMMISSION IS THE BASIS O F SHOW CAUSE NOTICE ISSUED TO THE ASSESSEE FOR DISALLOWING THE PURCHASE OF ZINC INGOTS FROM M/S HZ L AND TRANSPORT EXPENSES PAID TO M/S MEWAR TRANSPORT COMPANY. THERE IS NO REFERENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF THE SEARCH ACTI ON UNDER SECTION 132 AT THE PREMISES OF THE ASSESSEE. (III) THE LD. CIT(A) IN PARA 10.3.2 OF THE IMPUGNED ORDER HAS ALSO CLEARLY MENTIONED THAT SOURCE OF THE INFORMATION LEADING TO ADDITION WAS ONLY TAX EVASIO N PETITION AND THEREFORE HE DIRECTED THE ASSESSING O FFICER TO EXAMINE THE CASE FOR REOPENING UNDER SECTION 147/148 OF THE ACT. 7.3 THUS THE ONLY SOURCE OF INFORMATION IS THE TAX EV ASION PETITION RECEIVED DURING ASSESSMENT PROCEEDING. THE LEARNED DR ALSO COULD NOT REBUT THE FINDING OF THE LD. CIT(A) THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF THE SEARCH UNDER SECTION 132 OF THE ACT AND THE CASE IS SQUARE LY COVERED BY THE DECISION OF THE HONBLE HIGH COURT IN THE CASE OF KABUL CHAWLA (SUPRA). 10 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 7.4 IN VIEW OF THE ABOVE DISCUSSION WE UPHOLD THE FIND ING OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND THE GROUNDS NO. 1 AND 2 OF THE APPEAL OF REVENUE ARE ACCORDINGLY DISMISSED. 8. THE GROUND NO. 3 & 4 OF THE APPEAL OF THE REVENUE B EING GENERAL IN NATURE ARE DISMISSED AS INFRUCTUOUS. HEN CE THE APPEAL OF THE REVENUE IS DISMISSED. 9. AS WE HAVE ALREADY HELD THAT NO ADDITION COULD HAV E BEEN MADE IN THE INSTANT ASSESSMENT YEAR IN ABSENCE OF AN INCRIMINATING MATERIAL FOUND DURING THE COURSE OF T HE SEARCH UNDER SECTION 132 OF THE ACT THE ADDITION SUSTAINE D ON MERIT BY THE LD. CIT(A) ARE RENDERED ONLY OF THE ACADEMIC NA TURE AND THEREFORE WE ARE NOT REQUIRED TO ADJUDICATE UPON T HE GROUNDS RAISED BY THE ASSESSEE. THE LEARNED COUNSEL OF THE ASSESSEE ALSO DID NOT PRESS FOR ADJUDICATION OF THOSE GROUND BEIN G RENDERED INFRUCTUOUS IN VIEW OF OUR FINDING ON THE APPEAL OF THE REVENUE. 10. ACCORDINGLY THE GROUNDS OF THE APPEAL OF THE ASSE SSEE ARE DISMISSED AS INFRUCTUOUS. HENCE THE APPEAL OF THE ASSESSEE IS DISMISSED. 11. IN ITA NO. 1601/DEL./2018 FOR ASSESSMENT YEAR 2010 -11 ALSO THE REVENUE HAS RAISED IDENTICAL GROUNDS WHIC H ARE REPRODUCED AS UNDER: 1. THE ORDER OF LEARNED CIT(A) IS NOT CORRECT IN LA W AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN LAW IN BY RELYING UPON THE ORDER OF THE HONBLE HIGH COURT IN THE CASE OF KABUL CHAWLA. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW IN QUASHING THE ASSESSMENT ORDER FRAME D U/S 153A OF THE INCOME-TAX ACT 1961. 4. THE APPELLANT CRAVES LEAVE TO ADD AMEND ANY/ALL THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF TH E APPEAL. 11 ITA NOS.1600/DEL./2018; 1491/DEL./2018; 1601/DEL./2018 & 1492/DEL./2018 12. THE GROUNDS RAISED IN THE APPEAL OF THE ASSESSEE ( ITA NO. 1492/DEL/2018) FOR ASSESSMENT YEAR 2010-11 ALSO IDE NTICAL TO THE GROUND RAISED BY THE ASSESSEE IN ASSESSMENT AT 2009-10. 13. THUS FOLLOWING OUR FINDING IN ASSESSMENT YEAR 2009 -10 THE APPEALS OF THE REVENUE AND THE ASSESSEE FOR ASSESSM ENT YEAR 2010-11 ARE ACCORDINGLY DISMISSED. 14. IN THE RESULT THE APPEALS BOTH OF THE REVENUE AND THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH 2021 SD/- SD/- (AMIT SHUKLA) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH MARCH 2021. RK/- (DTDS) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT NEW DELHI