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Income Tax Appellate Tribunal, “A”, BENCH KOLKATA
Before: SHRI A.T.VARKEY, JM &DR. A.L.SAINI, AM
आदेश / O R DE R Per Dr. A. L. Saini: These three appeals preferred by the Revenue and three cross objections filed by the assessee against the order of the Ld. CIT(A)-2, Kolkata for assessment year2008-09 to 2010-11.
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11
Since in all the appeals of Revenue, common and identical issue are involved, therefore there have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. Revenue’s appeal in for assessment year 2009-10, is taken as the “lead” case.
The ld. DR drew our attention to the revised groundsraised by Revenue for A.Y. 2009-10, which are as follows:
1. Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in deleting the addition of understatement of mining production of iron ore to the extent of 319997.65 MT and amounting to Rs. 940107016/- ignoring M B Shah Commission’s Report.
2. Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in deleting the addition on account of un-reconciled difference in sales figures of 319997.65 MT amounting to Rs. 940107016/- ignoring M B Shah Commission’s Report.
3. Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in deleting the addition on account of undisclosed sales of manganese ore of 151.250 MT amounting in value to Rs. 90,435/- ignoring M B Shah Commission’s Report.
Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in deleting the addition under the head ‘under statement of opening stock’ to the extent of 519157.390 MT amounting to Rs. 1525209653/-.
Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in deleting the addition under the head unexplained retrieved stock of iron ore to the extent of 1215500 MT amounting to Rs. 3570963968/-.
Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in allowing the assessee’s appeal despite non- reconciliation of the figures at Part V Serial NO. 2 of the IBM returns with the figures at Serial no. 5 Part V of the IBM return.
Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in allowing the assessee’s appeal despite the assessee changing the figures of opening stock and closing stock in the revised IBM returns, and revising the grade-wise breakdown of production and despatch.
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 8. Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in allowing the assessee’s appeal in the face of discrepancies in closing stock pointed out by the Auditor in Col 10 of notes on accounts of the Auditor’s Report.
9. Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in appreciating the substance of the remand report without remanding the case for further verification.
10. That the appellant craves for leave to add, delete and modify any of the grounds of appeal before or at the time of hearing.”
4. At the outset itself, the ld. DR for the Revenue brought to our notice that ground Nos. 1, 2 and 6 are interlinked and contain connected issues which can be disposed off together and ground No. 3 can also be decided together because of similar issues and facts.
5. The main grievance of the Revenue is against the action of the Ld. CIT(A) in deleting the addition of Rs. 94,01,07,016/- alleging understatement of mining production of iron ore (ground Nos. 1, 2 and 6) and of Rs. 90,435/- alleging undisclosed sales of manganese ore (ground No.3).
6. Before the facts are stated, the attention was drawn by the ld. Senior Counsel appearing for the assessee(M/s Orissa Minerals Development Corporation (hereinafter referred to as OMDC), and brought to our notice that the Assessing Officer has not made any addition in respect of understatement of mining production of iron ore. According to him, the addition was made by the Assessing Officer on the undisclosed sales of iron ore and drew our attention to page No. 4 of assessment order wherein sub-heading is given as ‘ undisclosed sales’. Our attention was also drawn to page No. 5 of assessment order wherein the difference in iron ore sales is given under the chart which is stated as 319,997.650 MT. Thereafter, it was pointed out by the ld. Senior Counsel that the amount of Rs.94,01,07,016/- has been calculated by multiplying 319,997.650 mt x 2973.756 (average sales of iron ore), therefore,according to ld. Senior Counsel, the addition
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 has been made on the undisclosed sales of iron ore and not on the understatement production as stated in the grounds of appeal.
7. Per contra, the ld. CIT DR for the revenue drew our attention to the page No. 7 of the assessment order and brought to our notice that though in fact the Assessing Officer has made the addition of Rs. 94,01,07,016/- under the heading of undisclosed sales, however when he made the addition, he has made an averment that ‘since understatement of production has added to the coffers of the assessee company” Therefore, the Assessing Officer must have made the grounds accordingly.
After given our thoughtful consideration to the contention made before us, we understand that the ground No. 1 of the revenue though has stated that the addition was for understatement of mining production of iron ore, we note that it is for understatement of undisclosed sales of iron. However, since the assessee has not objected to the grounds of appeal we make the necessary corrections and proceed to dispose off, the appeal and ground no.1 should be in ‘place of understatement of mining production of iron ore’ as ‘understatement of undisclosed salesiron ore’.
Brief facts of the case as noted by the Assessing Officer is that the assessee company which is a government company had filed its return of income declaring total income of Rs. 287,33,57,160/- . The Assessing Officer noted that the assessment was completed on 29.12.2011 u/s 143(3) of the Act. Later on, notice u/s 148 was served upon the assessee and the assessment was reopened. [legal issue of reopening is challenged before us by assessee by filing cross objections.]. Thereafter, the Assessing Officer noticed that there has been undisclosed sales by the assessee which he understood after perusal of the dispatch figures as per books which included only saleable ores whereas Indian Bureau of Mining (hereinafter referred to as IBM) and IBM returns included figures of both saleable and non- saleable ores. According to Assessing Officer there is a mismatch between the saleable and sold ores. The Assessing Officer noticed that non-saleable ores for figuring in sale figures cannot be accepted and Assessing Officer states that the Page | 4
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 assessee had simply stated before him in respect of non-saleable ores that they are simply dumped and valued roughly on eye estimation basis only which allays suspicion that the assessee is doing wrong thing. Taking note of difference and anomalies, the Assessing Officer made charts which have been placed at page 5 and 6 of the assessment order and according to Assessing Officer, the difference in the iron ore sales comes to Rs. 319,990.650 mt. and taking note that the sales price of iron ore in rupees per ton in the year 2008-09 was average Rs. 2937.856/-, hence, he made computation of the undisclosed money which were generated by sales of undisclosed iron ore which comes to Rs. 94,01,07,016/- (319,997.650 mt. x 2937.856) u/s 69A of the Act.
Likewise in respect of manganese ore he calculated the difference in manganese sales as 151.250 mt and taking note of the average rate of manganese ore at Rs. 597.91 mt. Therefore, he calculated the unexplained money from the undisclosed sales of manganese ore at Rs. 90,435/-. Aggrieved by the aforesaid two additions the assessee preferred an appeal before the Ld. CIT(A) who was pleased to delete the same. Aggrieved the revenue is before us.
Assailing the decision of the Ld. CIT(A), the ld. CIT DR vehemently contended that the Ld. CIT(A) has taken the submissions of the assessee on face value and without cross-verifying the veracity of the submissions / documents produced before him, and has given relief to the assessee which is fallacy, erroneous and therefore the Tribunal may send the whole issue back to the file of the Assessing Officer for detailed intact investigation and to assess the correct income which has been undisclosed by the assessee by sale of undisclosed iron ore. According to ld. CIT DR despite the Assessing Officer painstakingly drew the attention of the assessee in respect to the mismatches of saleable and non-saleable ores and find out the discrepancy in the figures noted in the books of the assessee which included the saleable ores and non-saleable ores and mismatch between the returns filed before IBM could not be properly reconciled by the assessee and which lead to Assessing Officer making assessments against the assessee.
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 On appeal the Ld. CIT(A) has not looked into the mismatches that was pointed out by the Assessing Officer and has not even verified the veracity of the documents produced and has given relief to the assessee, which action of the Ld. CIT(A), cannot be justified and therefore has to be set aside and the Assessing Officer’s order need to upheld.
Per contra, the ld. Senior Counsel for the assessee in order to bring out the fallacies in the assessment orders drew our attention to the chart placed at page 5 of assessment order which is reproduced as under: Unit of measurement in MT: Name of Bhadrasai-1 Thakurani Belkundi Bhadrasai-2 Bagiaburu Total As per TAR Difference Mine Name of Iron Ore Iron Ore Iron Ore Iron Ore Iron Ore Mineral Despatches 605,223.580 1,387,007.720 - 48,825.050 13,027,300 2,054,083.650 1,734,086.000 319,997.650 / Sales Unit of measurement in MT: Name of Bhadrasai-1 Thakurani Belkundi Bhadrasai-2 Dalki Total As per TAR Difference Mine Name of Manganese Manganese Manganese Manganese Manganese Mineral Ore Ore Ore Ore Ore Desatches 15,175.940 - 10,809.310 - - 25,985.250 25.834.000 151.250 from Mine Head Closing 8,899.448 2,845.502 6,198.510 3,724 .800 5,473.740 27,142.000 18,899.000 8,243.000 Stock Difference in iron ore sales = 319,997.650 MT Difference in managanese sales = 151.250 MT The ld. Senior Counsel submitted that the assessee company has five mining units they are: i) Bhadrasahi-1 ii) KolhoRoida iii) Thakurani iv) Belkundi v) Bagiaburu
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 Thereafter, it was brought to our notice that the assessee has sold all its iron ore of Bhadrasahi mine to M/s East India Minerals Ltd (hereinafter referred to as EIML)(Govt. of India Subsidiary company) for Rs. 10 per ton. Thereafter, the ld. Senior counsel drew our attention to page 237 of the paper book vol.-II in the assessment order and drew our attention to qualitative figure of sale of iron ore as recorded in the annual returns filed by the assessee company with the IBM in respect of assessment year 2009-10 as under:
Thereafter the ld. Senior counsel submitted that the he would be able to demonstrate that the annual figure of aggregate sales as recorded in the audited financial accounts and also set out in the tax audit report is far higher than the figure of sales of mine iron ores as reflected in the annual return filed by the IBM. Thereafter, the ld. Senior counsel painstakingly drew our attention to the chart given above drawn by the Assessing Officer at page 5 of the assessment order and took our attention to the figure given below, the unit of assessee at Bhadrasahi-I wherein we note that the figure is given as 605,223.587 mt. Thereafter, the ld. Senior Counsel drew our attention to page 66 vol. I of the paper book, wherein we note that the figure of 605,223.580 mt is in respect of iron ore dispatch from the mine head and not the sales of iron ore which is given in the chart on the other side
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 of the page 60 wherein we note that the figure is 762,262.790 that means the figure of 605,223.580 mt. as recorded by the Assessing Officer is incorrect whereas the correct sales figure is at 762,262.790 mt.
Thereafter, the ld. Senior Counsel drew our attention to the unit at Thakurani wherein the dispatch sales is associated 1,387,007.720 mt. as noted by the Assessing Officer in the assessment order whereas the ld. Senior counsel drew our attention to page 74 of the paper book wherein we note that iron ore dispatch from the mine head which is 1,387,007.720 mt. However, the ld. Senior counsel drew our attention to page no. 75 of the paper book wherein we note that the correct figure of sales of iron ore is 14,18,692.63 anddispatch iron ore from the mine head as 1,387,007.720 whereas the figure 14,18,692.63 ought to have been taken note by the Assessing Officer.
In respect to the unit located at Belkundi there has been no dispatch of iron ore andshows Nil which is correct.
Coming to Bhadrasahi-II and Chloride Unit we note that the figure of dispatch sales 48,825.050 is matching of that figure of sales in the paper book.
Coming to the Bhagiaburu unit we note that Assessing Officer has shown dispatch of iron ore at 13,027.300 whereas the ld. Senior counsel drew our attention to page 80 of the paper book, the figure is matching and there is no change in the figures. Therefore, we note that the Assessing Officer has erred in taking note of the sales figure of iron ore in respect of Bhadrasahi-II sales that of the Thakurani Unit which is given above. Thereafter the ld. Senior counsel drew our attention to page 237 quantitative figure sales of iron ore, as recorded in the annual returns and drew our attention to the note that the total figure of iron sales from all the five units comes to 22,42,807.13mt. and since the assessee had sold the iron ore to M/s EIML of Bhadrasahi mine at 10 per mt. and the production was to the tune of Rs. 5,15,968.72 mt. This has been reduced from 22,42,807.13 which comes to the total figure of 17,26,838.41 mt of sale of mined iron ore as reflected Page | 8
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 in the Indian Bureau of Minerals (IBM) annual return both for assessment year 2009-10 when compared with the annual return aggregates sales as per audited financial account and as per tax audit report which is 17,34,086/- . We find the difference is negligible which is 7247.59 mt Thus, the ld. Senior counsel contended that the chart given at page 237 which is extracted above when reconciled with IBM annual report and audited financial accounts as per tax audit report would show that the annual figure of aggregate sales of iron ore as recorded in the audited financial accounts also constitutes in the tax audit report is higher than the figure of sales of mined iron ore as reflected in the annual return both with IBM and in respect of the figure of difference noted by the Assessing Officer in chart at page 5 of Assessing Officer’s order which is 319,997.650 mt. stand subtracted -7247.528mt so therefore the question of undisclosed sales of iron ore does not arise. According told Counsel, these facts have been clearly understood by the Ld. CIT(A) and he has deleted the addition and therefore we do not want to interfere in the order of the Ld. CIT(A). That is, ld. Counsel defended the order passed by ld. CIT(A).
Having heard both the parties and after carefully taking note of the submissions of both the parties, we are not repeating the facts as well as the submissions and reconciliation of figures noted above. We have gone through the tax audit report and other evidences and find that there is a higher figure of sales of mined iron ore which has been reflected in the tax audit report of the assessee and there is no undisclosed sales on iron oreas contended by the Assessing Officer. We note that after having been convinced with the reconciliation which has been brought out above. We note that the Ld. CIT(A) has deleted the addition by holding as under: “I find that the A.O. has mixed up the figures of despatches and sales. These aspects have also been explained by in Statement of Facts in paragraphs 12-25 of the SoF for A.Y. 2008-09, 10-21 of the SoF for A.Y. 2009-10 and 11-12 of the SoFfor A.Y. 2010-11. It has already been explained as to why the figures of despatches, as reflected in the Annual Returns filed with the IBM for any of the years would never tally with the figure of sales as recorded in the Annual Audited Financial Accounts. The A.O. in his assessment order is mainly referring to the figure of despatches in his Charts set out at internal page 2 of each of the said three impugned Assessment orders, save and except in the impugned Assessment Page | 9
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 order passed in respect of the assessment year 2008-09, wherein too, the figure of sale has been taken. It has already been explained in the Statement of Facts filed along with the appeals that the figure of sales is also appearing in each of the Annual Returns filed by the appellate with IBM; and these figure of sales, after deduction of sales made through EIML, tally exactly with the Audited Annual Accounts. In fact, the figure aggregate sales appearing in the Audited Annual Accounts is far higher, in each of the said three years, than the figure of sales appearing in the Annual Returns filed by our company with IBM. In the facts and circumstances stated above, the A.O. is directed to delete the addition of Rs. 94,01,07,016/- made by him. This grounds of appeal is allowed.”
Thus, we agree with the Ld. CIT(A) in his factual findings and therefore ground nos. 1,2 ,6 and 3 (which is also in respect of manganese ore), are dismissed.
Now we shall adjudicate ground No. 4 raised by the Revenue, which reads as follows: Ground No.4:Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in deleting the addition under the head ‘under statement of opening stock’ to the extent of 519157.390 MT amounting to Rs. 1525209653/-.
We note that the issue alleged in this ground was never raised by the A.O. in the impugned assessment order for any of the three years. This issue was raised by the Assessing Officer for the first time in his Remand Report dated 11.01.2017 appearing at pages 208-210 of PB, vol-II, filed by the assessee before the ITAT. The revised returns filed before IBM were submitted before the ld. CIT(A) by way of additional evidence vide pages 195-207 of PB, vol.II filed by the assessee before the ITAT. The reasons for filing additional evidence are set out in the letter dated 12th December, 2016 filed by the assessee before the ld. CIT(A). Copies of all these additional evidences were submitted to the A.O. and the ld. CIT(A) asked for his Remand Report. The Remand Report of the A.O. dated 11.01.2017 appears at pages 208-210 of the said PB, vol-II. The submissions made by the assessee in response to the Assessing Officer’s Remand Report dated 11.01.2017 are through letter dated 19.01.2017 which appears at pages 211-229 of the said PB, vol-II. All these papers, documents and submissions were also filed before the Assessing Officer. The assessee’s representatives also appeared before the Assessing Officer and explained the additional evidences and all other points raised by the A.O. Page | 10
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 before submitting the Remand Report to ld. CIT(A). The assessee also filed a letter dated 10.01.2017 (copy filed by the assessee separately in the course of hearing before the Bench) addressed to the Assessing Officer. This letter also makes reference to the three Reconciliation Statements prepared by the assessee and filed before the A.O. as also the ld. CIT(A). Copy of these Reconciliation Statements reconciling the opening and closing stock figures as well as production and dispatches etc. for each of the three years with reference to IBM returns, both original and revised, and the audited annual accounts appear at pages 189-191 of the said PB, vol-II. These reconciliation statements were fully checked and verified by the A.O. before submitting his Remand report to the ld. CIT(A). The ld. CIT(A) accepted the additional evidence submitted by the assessee. This aspect is dealt with by the ld. CIT(A) at internal pages 18-19 of his appellate order dated 30.01.2017 passed for A.Y. 2009-10- copy of this appellate order of ld. CIT(A) also appears at pages 5-47 of PB, vol-I, filed by the assessee before Bench. The relevant observation of ld CIT(A) are given below:
“The AO in the assessment year 2009-10 has added an aggregate sum of Rs.152,52,09,653/- on account of understatement of opening stock of Iron Ore on the alleged ground that the Appellant had fudged its figures in the IBM Return to suit its own ends. The AR has submitted that the appellant while filing the Annual Returns with IBM in respect of different mines for the financial year 2008-09 corresponding to the assessment year 2009-10, certain incorrect figures of opening stocks held been inadvertently taken. The factual aspects in this respect are discussed and explained hereinafter • In respect of Bhadrasai Mine, the closing stock of Iron Ore: as on 31.03.2008 was 478,613.090 MT (see page 88 of PB, Vol-I), as clearly set out under paragraph 6 at page 3 of the impugned reassessment order The opening stock figure in respect of this very mine JS on 01.04.2008 was incorrectly shown in the Annual Return at 470.351,5UO MT [see page 68 of PB, Vol-I) as set out by the learned Assessing Officer at page 4 of the impugned reassessment order. On perusal of tile monthly returns filed in Form No.F-1 for the months of March, 700B and April, 2008 in respect of the said Bhadrasai Mine, it is clear that the closing stock figure of Iron Ore as on 31.03.2008 was 478,613090, which is also the opening stock figure appearing in the monthly return filed with IBM for the month of April, 2008 - see 101 & 103 of the Paper Book, Volume-I. In other wends, there is no different between the closing stocks of Iron Ore in respect or the said Bhadrasai Mile as on 31.03.2008, as disclosed III the Annual Return Form No.H-1, as well as In the monthly return in Form No.F-1 for the succeeding month April, 200B. • In respect of Thakurani Mine, the closing stock of Iron Ore as on 31.03.2008 was 284,G72.790 MT [see page 105 of PB, Vol-I) as clearly set out under paragraph 6 at page 3 of the impugned reassessment order The opening stock Page | 11 M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 figure in respect of this very mine as son 01.04.2008 was incorrectly shown in the Annual Return at 357,733.910 MT (see page 76 of PB, Vol-I) at set out by the AO at page 4 of the impugned reassessment order, On perusal of the monthly returns filed in Form No.F-1 for the months of March. 2008 and April, 2000 in respect of the said Thakurani mine, it is clear that the closing stock figure of Iron Ore as on 31.03,2000 was 284,672.790, which is also the opening stuck figure appearing in the monthly return filed with IBM for the month of April, 2008 – see page 107 of the Paper Book, volume ..
In other words, there is no difference between the closing stock of Iron Ore in respect of the said Thakurani Mine as 31.03.03 2008, as disclosed in the Annual Return in Form No.HI-1, as well as in the monthly return in Form No.F-1 for the succeeding month of April. 2008. • In respect of Kolha Roida (Bhadrasai-2) Mine, the closing stock of Iron Ore as on 31.03.2008 was 6S6,948.570 MT (see page 89 of PB, Vol-I), as clearly set out under paragraph 6 at page 3 of the impugned reassessment order. The opening stock figure in respect of his very mine as on 01.04.2008 was incorrectly shown in the Annual Return at 653,612,950 MT (see page 72 of PB, Vol-I), as set out by the AO at page 4 of the impugned reassessment order. On perusal of the monthly returns filed in Form No.F-1 for the months of March, 2008 and April, 2008 ill respect of the said Kolha Roida (Bhadrasai-2) Mine, it is clear that the closing stock figure of Iron Ore as on 31.01.2008 was 016,911.570, as against the opening stock figure of 653,612.950 appearing ill the monthly return filed with 1BM for tile month of April. 2008 - see pages 109 & 111 of the Paper Book, Volume -I. In other words, there is a difference of 3,335.62 MT between the closing stock of Iron Ore in respect of the said KolhaRoida (Bhadrasai-2) Mine as on 31.03.2008, as disclosed in the Annual Return in Form No.H-1 ,as well as in the monthly return In Form No.F-1 for the succeeding month of April, 200B. Therefore, the opening stock of Iron Ore as on 01.04.2008 was inadvertently shown at a lower figure of 3,335.62 MT.
I find that there appears to be some clerical error in setting out the figures of opening stock of Iron Ore in respect of the said KolhaRoida (Bhadrasai-2) Mine as on 1st April, 2008, both in the monthly and annual return filed by it with IBM. This mistake was corrected in the revised return filed by the Assessee Company – see page 185 of the Paper Book, Volume-II. The revised annual returns filed with IBM were filed earlier from the date of the filing the return of income with income tax department. The assessment u/s 143 (3) of the first round also made after the filing of the revised return with him. Hence, it is clear from the above that the revised return as Filed with IBM does not appears to be manipulated by the appellate. The details of the above bets are as under:- Name of the Mines Period Date of filing the revised return with IBM Bhadrasai FY: 2007-08 27.10.2008 FY: 2008-09 25.07.2009 FY: 2009-10 12.10.2008 KolhoRoida FY: 2007-08 27.10.2008 FY: 2008-09 25.07.2009 FY: 2009-10 12.10.2010 Thakuranai FY: 2007-08 27.10.2008 FY: 2008-09 25.07.2009 FY: 2009-10 11.10.2010
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 I find that the return of income with income tax department was filed 28.10.2008 and assessment u/s 143(3) was completed on 20.l2.2010 for assessment year 2007-08. For assessment year 2008-09, the return of income with income tax department was filed 24.09.2009 and assessment u/sl43Cn was completed on 29.12.2011 and for assessment ye.ir 2009-10, the return of income with income lax department was filed 04.10,2010 and assessment u/s 143(3) was completed on 07,02,2013. It is very much clear from the above that the revised returns with IBM, were filed earlier from the date of filing the return or income with income tax department and completion of assessment u/s 143(3) of first round in all three years. A copy each of the covering letters accompanying the aforesaid revised returns do form part of the consolidated Volume - 11 of our Paper Book, already filed during the appellate proceedings and a copy thereof has also been filed with the learned AO. The figures appearing in the revised returns filed by appellate with IBM in respect of each of the said three years, have already been reconciled with the Audited Annual Accounts for each of the said three' years; and the Reconciliation Statements evidencing the aforesaid, also form part of the consolidated Paper Book, Volume - II; and the same appears at pages 223, 224 & 22S thereof. There is no revision or change in respect of the figures of aggregate Production, aggregate Despatches and aggregate Sales appearing in the original annual returns filed with the IBM as compared to the revised annual returns filed with the IBM in respect of any of the said three years under appeal for each of the said mines. The revision / change is only in respect of the figures of opening and closing stocks in respect of each of the said three years. The revised figures of opening and closing stocks, as reflected in the revised annual returns filed with the IBM, do fully tally with the respective figures appearing III the annual audited financial accounts for each of the said three years, which audited financial accounts were filed with the Assessing Officer as part of income tax returns for each of the said three years, in pursuant to section 139 of the Income Tax Act, 1961. I find that the revised Annual Returns for each of the said mines, the clerical errors, which had crept in original Annual Returns filed with IBM, have already been corrected, and that too, long before the starting of scrutiny proceedings by the Assessing Officer, in case, for the assessment year 2009-10. The revised Annual Returns with the IBM for each of the said mines had been filed by us on 25th July, 2009; whereas Income Tax Returns for the assessment year 2009-10 was filed on 24th September, 2009; the original assessment of the appellate for the said year had been completed only on 29th December. 2011, long after the filing of the said revised annual return with IBM; and the proceeding for re-assessment in case for the said year had been initiated only through notice dated 27th March, 2015 issued under section 148 of the said Act; and the Impugned Assessment Order was also passed only on 29th March, 2016. I further find that the revised / corrected figures of closing stocks of different mines for the financial, year ending 31st March, 2008 corresponding to the assessment year 2008-09, as appearing in the last but one column under the heading closing stock of the Reconciliation Statement at page 223 of the consolidated Paper Book, Volume -II, tally exactly with the opening stock figures of different mines, as appearing the in e third column under the heading 'opening stock' appearing at page 224 in respect of the financial year ending 3151 March, 2009 corresponding to the assessment year 2009-10. On a perusal of the Statement of Facts dealing with Bhadrasai Mine arid Thakurani Mine, It has already been explained earlier that there was clerical error in taking the closing stock of Iran Ore as on 31st March, 2008, as compared to the closing stock figure of this very mine appearing in the monthly return for the month of March, 2008 an d the opening stock appearing in the monthly return 101- the month of April, 2008. However, there was a difference of 3335.62 MT in respect of KolhaRcida (Bhadrasai - 2) in the closing stock of Iron Ore as on 31st March, 2008 being 6,56,948.570 MT and the opening Page | 13
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 stock of that very mine being incorrectly shown as on 1st April, 2008 at 6,53,612.9S0 MT in the Annual Return filed for that mine in respect of the financial year ending 31stMarch, 2009. This was a clerical error as explained earlier in Statement of Facts tiled along with the Appeal. I find the on a perusal of page 223 & 224 of the consolidated Paper Book, Volume - 11, containing the Reconciliation Statements, the closing stock of KolhoRoida Mine as on 31st March, 2008 was 6,56,948.570 MT; and the opening stock as on 1st April, 2008 of that very mine was also 61561948.570 MT I further find that the revised annual returns with reference to which these Reconciliation Statements had been prepared for each of the said two years under appeal, appear at pages 170-179 & 180- 186 of the consolidated Paper Book, Volume – II. The figure of closing stock as on 31st March, 2008 at 6,56,948.570 MT appears on the backside of page 17th of the said Paper Book, Volume - II; and the figure of opening stock as on 1st April, 2008 is also set out at the backside of page 185 of the revised Annual Return filed with IBM at very same figure of 6,56,948.570 MT. In other words the clerical error in respect of KolhoRoida mine also stands corrected in the revised annual return filed with the IBM. In the facts and circumstances slated hereinabove the addition of Rs 152,52,09,653 under the heading understatement of opening stock', as discussed by the AO of his impugned Assessment Order passed in respect at the assessment year 2009-10 is wholly incorrect and baseless, Accordingly, the AO is directed to delete the addition and this ground of appeal is allowed.”
Having gone through the findings of ld CIT(A), we note that there is no understatement of opening stock.That being so, we decline to interfere with the order of Id. C.I T.(A) in deleting the aforesaid addition. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
21. We shall take ground No.5 raised by the Revenue, which reads as follows: Ground No.5:Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in deleting the addition under the head unexplained retrieved stock of iron ore to the extent of 1215500 MT amounting to Rs. 3570963968/-.
We have heard both the parties and perused the material available on record. We note that ld CIT(A) dealt with this issue in details and called remand report. The findings of ld CIT(A) is given below:
“The appellate in the Audited Printed Annual Accounts for the financial year ending 31st March, 2011 (see para 11 at page 86 thereof) corresponding to the assessment year 2011-12 had included within its closing stock or Iron Ore, sub-grade stock of estimated 12,15,000 MT based upon physical verification of such sub-grade stock lying its stock yard as on 31st March, 2011. From the enclosed Statement relating to the financial year ending 31st March, 2011 corresponding to the assessment year 2011-12, it is clear that although the said quantity of 12,15,000 MT being the sub-grade material was recorded in the Stock Book, its valuation was taken at NIL Such physical verification was carried out by the Assessee Company's internal surveyors of the mines concerned, In their Survey Page | 14
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 Report dated 16th May, 2011 (see copy of the report appearing at page 112-113 of the Paper Book, Volume - I), the Surveyors had stated inter alia as under: "As advised by you, we have visited all the leasehold areas of OMDC and found that there are a number of overburden dumps lying in the most of the lease areas. The stocks lying in the dump yards are believed to be more than 70 years old It is also assumed chat dumps may contain sub- grade Iron Ore materials which have been found affected due to weather conditions. The dumps are also found not in proper shape roused due to weather reflect over the years." In the accompanied statement (see page 113 of the Paper Boos, Volume - I) enclosed to the said Survey Report, the Surveyors had given the dump wise and area/location wise breakup of the said sub-grade dumps lying in different locations as on 31st March, 2011 estimated to be 12,15,000 MTs with the following remarks at the bottom thereof: • The above stocks lying in mines are carried forward since more than 10 years; • The stacks have been found affected due to weather conditions and not in proper shape; • Initial ground position before dumping has not been taken into consideration for assumption of the quantity; • The same stack has to be reassessed by bringing to proper shape and drawing sample; • The volumes of stack quantity are indicative and based on assumption only; • The reassessment of the above said stacks shall be taken up by third party for quantity and quality; • Only surface samples of the dumps have been drawn for assessment of quality of the dump; • The conversion factor has been taken as 2.50 MT /cum approximately. A bare perusal or the said Survey report clearly indicates that the Surveyors had made lot of assumptions based upon their eye estimate: and that this physical survey through eye estimate was carried out only on 16lh May, 2011. The Surveyors had clearly stated in their report that the estimated quantity of 12,15,000 was lying in the dump yard for more than 10 years. Notifications issued by the Directorate of Mines, Odisha. Bhubaneswar from time to time laid down the Fe grade of Iron Ore: which were nothing but waste material lying in the dump yards of different mines, with no salable value attached thereto. Based upon such Notifications, all mines including those leased out to the Appellant, used to discard 45% - 55% Fe grade Iron Ore as waste material in their respective dumps prior to 16th October, 2009 in or around October 2010, the Directorate of Mines, Odisha. Bhubaneswar fixed new threshold value of different minerals including those of Iron ore being mined in the State of Odisha. The earlier discarding grade of 45% Fe was further reduced to 45% in or around August/ October, 2010. These facts are corroborated from the letter dated 30th December, 2011 (see copy appearing at page 114 of the Paper Book, Volume -I) addressed by the Directorate of Mines, Odisha, Bhubaneswar to Shri S. K. Das, the Director of Mines, Odisha, Bhubaneswar In view of the changed stand taken by the Directorate of Mines, Odisha, Bhubaneswar in or around October, 2010, the Appellant also carried out .a physical verification of the sub- grade Iron Ore lying in their different dumps; and as already explained earlier such Physical Verification Report was given by the Surveyors on 16th May, 2011; and based on such Survey Report, the erstwhile discarded sub-grade Iron Ore lying in the dump yards of the Appellant Assessee Company's different mines was taken in the stock as set out in paragraph 11 at page 86 of its Annual Printed Audited Accounts drawn for the financial year ending 31st March, 2011.
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 The AR of the appellant stated that taking into account the said physical verification report of its own Surveyors, the Assessing Officer arbitrarily alleged in paragraph 2 ,at page 7 of its said impugned Assessment Order dated 29th March, 2016 passed in respect of the assessment year 2009-10 that the alleged value of such unexplained retrieved stock in the slim of Rs.357,09,63,96n was liable to be added to its total income for the assessment year 2009-10. I find that the Assessing Officer failed to take into account in particular the following facts: • The said Report was made by the Surveyors only on 16th May, 2011; • The retrieved stock was accounted for the first time in the financial year ending 31st March, 2011 based upon the said Surveyor Report dated 16tl1 May, 2011; • The Surveyor clearly specified that such sub-grade Iron Ore had been lying in the dumps for more than 10 years; • The Surveyors were not able to actually assess the quality and exact quantity of such sub-grade Iron Ore lying in the dumps, From the said Survey Report, which was filed with the Assessing Officer in course of the reassessment proceedings, it is clear that the said estimated or assumed quantity of sub- grade Iron Ore weighing about 12,15,000 MTs has no connection whatsoever with the financial year ending 31st march, 2009 corresponding to the assessment year 2009-10. It either pertains to year 20011-12 or last 10 years. I further find that the so called rate of Rs.2937.856 per MT set out in the M.B. Shah Commission’s Report, can by no stretch of imagination be said to be the value of sub- grade Iron Ore lying in different dump yards of the Appellant as waste material for more than 10 years, and which waste material was seriously affected due to weather condition, and is not even in proper shape. It may be noted that the average sale value of the best quality of Iron Ore in the case of the Appellant Assessee Company in the financial year 2008-09 corresponding to the assessment year 2009-10, the year under appeal was only 1411.06 per MT; and in the financial year 2010-11 corresponding to the assessment year 2011-12, in which year the said sub-grade Iron Ore was brought in stock at NIL value, the average sale value of the best quality of Iron Ore was 1613.68 MT only. In view of the above facts and circumstances of the instant case, as explained hereinabove, the AO is directed to delete the addition of Rs.357,09,63,968/- as made by him. This ground of appeal is allowed.
Having gone through the findings of ld CIT(A), we note that there is no infirmity in the order passed by the ld CIT(A). That being so, we decline to interfere with the order of Id. C.I T.(A) in deleting the aforesaid addition. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.”
Having gone through the findings of ld CIT(A), we note that there is no infirmity in the order passed by the ld CIT(A).That being so, we decline to interfere with the order of Id. C.I T.(A) in deleting the aforesaid addition. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
24. We take ground No.7 raised by the Revenue, which reads as follows:
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 Ground No.7:Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in fact and in law in allowing the assessee’s appeal despite the assessee changing the figures of opening stock and closing stock in the revised IBM returns, and revising the grade-wise breakdown of production and despatch.
We note that so far ground No.7 of the Revenue is concerned, the ld. CIT(A) has fully appreciated the Remand Report dated 11.01.2017 submitted by the A.O. copy appearing at pages 208-210 of assessee’s paper book, vol.II. The ld. CIT(A) has dealt with this issue in details in each of his three Appellate orders. It is not correct to say that the A.O. had no opportunity to make proper verification. As already stated earlier, the Remand Report was submitted by the A.O. after full and proper verification of all issues, and also after calling the assessee’s representatives. The assessee’s submission with reference to the Remand Report are given at Pages 211-229 of the assessee’s Paper Book, Vol-II. These documents/evdiences submitted by the assessee clearly show that there is no change in figures of opening stock and closing stock in the revised IBM returns and there is no change in the grade-wise breakdown of production.
Ground No. 8 raised by the Revenue is general in nature and hence does not requireadjudication.
The assessee filed cross objections, CO.No.48/Kol/2017, for A.Y.2008-09, CO. No.49/Kol/2017, for A.Y.2009-10, and CO.No. 50/Kol/2017, for A.Y. 2010- 11. The common issue raised in all the cross objections is that since the ld CIT(A) deleted the entire additions made by the assessing officer in the impugned reassessment proceedings and there being no income escaping assessment, the CIT(A) should have quashed the reassessment order passed by the AO under section 147/143(3) of the Act. We have heard both the parties and perused the material available on record, we note that just because ld CIT(A) deleted the entire addition made by assessing officer, does not mean that order passed by the ld Assessing officer under section 147/143(3) becomes null and void. Hence, we do not agree with the ld Counsel for the assessee and therefore, we dismiss all the cross objections raised by assessee. Page | 17
M/s Orissa Minerals Development Co. Ltd. C.O. Nos.48,49&50/Kol/2017 Assessment Years:2008-09 to 2010-11 The assessee also raised grounds in cross objections relating to interest under section 234B and 234D of the Act. We note that these grounds are consequential in nature and hence do not require adjudication.
In the result, all appeals filed by the Revenue ( in 827/kol/2017 and 828/kol/2017) are dismissed and all cross objections filed by the assessee ( in CO. No.48/Kol/2017, CO.No.49/Kol/2017 and CO.No.50/Kol/2017) are also dismissed. Order pronounced in the Court on 04 .06.2019