Addl. CIT vs PEC Ltd.

Per Satbeer Singh Godara, Judicial Member:

These Revenue’s and the assessee’s appeals i.e . ITA No. 4557/Del/2018 for A.Y. 2011-12 and ITA No. 7305/Del/2019 for A.Y. 2012-13 arise against the CIT(A)-38, New Delhi’s as many orders dated 08.01.2018 and 25.06.2019 passed in case No.83/2017-18 and 353/2018-19, in proceedings u/s 143(3) r.w.s. 147 and u/s 143(3) of the Income Tax Act, 1961 (in short “the Act”), respectively.

Cases called twice. None appears at the asse ssee’s behest. We thus proceed ex-parte against the assessee in both these cases.

Learned departmental representative veheme ntly argues in the Revenue’s appeal ITA No. 4557/De l/2018 that the CIT(A) has erred in law and on facts in reversing the assessment findings adding an amount of Rs.2,50,22,8 61/- in the assessee’s hands as under invoicing of income; in assessment order dated 30.03.2016 despite the fact that the same was base d on the recommendations of hon’ble justice M.B. Shah Commission.

That being the case, we note from a perusal of the case records that the assessee has not only succeede d on the very issue in preceding assessment year 2010-11 but also various judicial precedents i.e . hon’ble Bombay high court at Goa in Writ Petition No. 141/2015 in M/s Sesa Sterlite Ltd. Vs. ACIT along with other similar batch of cases decided on 09.07 .2019 has even quashed the corresponding reopening action(s) initiated by the learned departmental authorities on the basis of the very report (supra). And also that hon’ble Gujarat high court in Tax Appeal No. 746/2019 decided on 13 .01.2020 PCIT Vs. Rawmin Mining and Industries P. Ltd. has further upheld the tribunal’s action deciding the very issue of under invoicing of income additio n based on the very repor t and in absence of the corresponding cogent supportive evidence by the learned departmental authorities.

Faced with this situation, we hereby notice that apart from going by the said report, learned assessing authority no where discussed any actual evidence of under invoicing of inco me at the assessee’s behest which fur ther appears to have succeeded in the preceding assessment ye ar 2010-11 as well. We thus find no reason to accept the Revenue’s instant so le substantive grievance which is hereby rejected therefore. So is the outcome of it’s main appeal ITA No. 4557/Del/2018.

The asse ssee’s appeal ITA No. 7305/Del/2019 on the hand also raises the very sole substantive grievance that both the learned lower authorities have erred in law and on facts in making under invoicing of sales addition amounting to Rs.1,61,60,979/-; in assessme nt order dated 31.03.2015 as uphe ld in the lower appellate discussion.

Suffice to say, once it turns out that this issue is very much similar as in the preceding assessment year, we find no reason to sustain the same by adopting judicial consistency. The same is directed to be deleted therefore. The assessee succeeds in appeal ITA No. 7305/Del/2019 in very terms.

This Revenue’s appeal ITA Nos. 4557/Del/2018 is dismissed and the assessee’s appeal ITA No. 730 5/Del/2019 is allowed; in above terms. A copy of this common o rder be placed in the respective case files.