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Income Tax Appellate Tribunal, “C” BENCH : BANGALORE
Before: SHRI VIJAY PAL RAO & SHRI INTURI RAMA RAO
ORDER Per INTURI RAMA RAO, AM :
This appeal filed by the assessee is directed against the order of the learned Principal Commissioner of Income Tax, Kalaburagi, [‘Principal CIT’] dated 25.11.2016 passed under section 263 of the IT Act [hereinafter referred to as ‘the Act’].
2. The appellant raised the following grounds of appeal:
“1. The original scrutiny asst. order not being erroneous nor was it prejudicial to the interest of the Revenue, the CIT erred in exercising his jurisdiction under Section 263 of the Act.
2. Without prejudice, the CIT ought to have appreciated that the assessing officer had adopted the same view year after year, after calling for various details during the course of the assessment proceedings and after being satisfied, had passed an order under Section 143(3) and therefore exercise of revisional powers under Section 263 to substitute his view, year after years, was impermissible & un sustainable in the eye of law.
3. None of the twin conditions for invoking revisional powers under Section 263 being absent, the impugned order passed under Section 263 is clearly in violation and contrary to the law rendered by the Hon'ble Supreme Court in the cases of (a) Malabar Industrial Co., Ltd vs. CIT (2000) 243 ITR 83 (SC) and (b) CIT vs. Max India Ltd (2007) 295 ITR 282 (SC) and therefore, the impugned order is liable to be set aside. 4. Without prejudice, the assessing officer having adopted one of the possible views year after years, the exercise of jurisdiction under Section 263 by the CIT is not justified. 5. For these and such other grounds that may be urged at the time of hearing, the appellant prays that the appeal may be allowed.”
Briefly, the facts of the case are that the appellant is an individual engaged in the business of extraction and sale of iron ore. The return of income for the assessment year 2012-13 was filed on 28.09.2012 declaring income of Rs.4,32,33,043/- and this was revised on 28.02.2013 at a total income of Rs.13,09,79,754/-. The variation between the original return of income and revised return of income was stated to be on account of offering of E-auction sale proceeds of Rs.14,68,19,400/-. Against the said return of income, the assessment was completed by the ACIT, Circle-1, Bellary vide order dated 01.08.2014 passed under section 143(3) of the Act. After making an ad-
Page 3 of 13 hoc disallowance of Rs.25,00,000/-, there were no further proceedings on this assessment as the ad-hoc disallowance was made on concession.
While the matter stood thus, the learned Principal CIT, issued a show cause notice dated 12.05.2015 under section 263 of the Act proposing to revised assessment order, as the Assessing Officer had failed to assess the amount of Rs.2,59,09,307/- being 15% of proceeds of E-auction of Iron Ore of Rs.17,27,28,707/-. This amount was deducted by the Central Empowered Committee (CEC) towards the special purpose vehicle. The Principal Commissioner was of the opinion that this amount is an application of income and therefore cannot be allowed as a deduction. Subsequently, a revised show cause notice dated 16.03.2016 was issued wherein the learned Principal CIT held that apart from 15% of the E-auction sale proceeds, a further sum of Rs.6,05,00,000/- paid by the appellant-firm as a penalty towards compensation for illegal mining was proposed to be revised, as same cannot be allowed as a deduction as it is penal in nature by virtue of the Explanation to section 37(1) of the Act. In response to the above show cause notice, the appellant filed his reply vide his letter dated 18.03.2016 which is as under:
The learned Principal CIT, after considering the above explanation, held that the amount of Rs.2,59,09,307/- had accrued to the assessee and the amount has been retained by the CEC constituted by the Supreme Court as this is nothing but application of income. As regards the amount of Rs.6,05,00,000/- paid by the assessee company towards compensation for illegal mining of Rs.3,25,00,000/- and for illegal dumping of Rs.2,80,00,000/- the learned Principal CIT opined that it is nothing but an expenditure which is no doubt penal in nature which cannot be allowed as a deduction while computing the profits and Page 6 of 13 gains of business by virtue of the Explanation to section 37(1) of the Act. The learned Principal CIT also placed reliance upon the decision of Hon’ble Supreme Court in the case of CIT Vs. KCP Ltd., (245 ITR 421) in support of the proposition that the amount collected during the ordinary course of business should be taxed as a trading business and also placed reliance upon the decision of Hon’ble Supreme Court in the case of Madhya Venkataramana Pvt. Ltd., Vs. CIT (229 ITR 534) wherein it was held that the penalty paid for breach of any provision of law cannot be allowed as a deduction as the breach of the provision of law is not a necessary incident of the business. The learned Principal CIT also placed reliance upon the decision of the jurisdictional High Court in the case of CIT Vs. Mamatha Enterprises (266 ITR 352) and Millenium Developers Pvt. Ltd., Vs. DCIT (322 ITR 401) wherein the Hon’ble jurisdictional High Court held that the compounding fees paid for the violation of the rules of construction of buildings, is penal in nature and is not deductable. Thus the Principal CIT had come to the conclusion that the order of assessment is erroneous and prejudicial to the interests of the Revenue as the AO passed the assessment order without making any enquiries or verification which should have been made and accordingly, the learned Principal CIT had set aside the assessment order to the file of AO to make fresh assessment in accordance with law after giving the necessary opportunity to the assessee.
Being aggrieved, the appellant is before us with the present grounds of appeal. The learned counsel for appellant vehemently contended that this issue was examined by the AO during the course of assessment proceedings and he drew our attention to page Nos. 14 and 15 of the paper book wherein the assessee had explained the transaction of sale of Iron Ore through E-auction, to the AO. He further submitted that the claims made by the assessee are obvious in the return of income and therefore the AO had passed the impugned assessment order after detailed enquiry and had come to the conclusion
Page 7 of 13 that the same is allowable as deduction. Thus it was contended that the Principal CIT was not justified in invoking the revisional jurisdiction.
On other hand, the learned CIT(DR) placed reliance upon the order of the Principal CIT.
We heard the rival submissions and perused the material on record. The issue in the present appeal is whether the Principal CIT was justified in invoking the revision proceedings under the provisions of section 263 of the Act. The learned Principal CIT sought to revise the assessment order primarily on the ground that the AO had failed to enquire into the claims of deduction on account of 15% of E-auction sale proceeds and the compensation paid for illegal mining and dumping on the illegal site of Rs.6,05,00,000/-. For better appreciation of the claims made by the appellant in the assessment proceedings, it is necessary to refer to the factual background of this this transaction. The appellant is classified as ‘B’ category mining owner. The Hon’ble Supreme Court of India in the SLP No. 7366 to 7361/2010 dated 29.07.2011 had banned the activity of mining of Iron Ore in the districts of Bellary, Tumkur and Chitradurga of Karnataka districts. In compliance with the orders of the Hon’ble Supreme Court of India, the mining activity had been suspended by the appellant since the month of January 2012. It may be further stated that the Iron Ore held in the stock was not permitted to be sold by the appellant. However, subsequently, i.e., on 03.09.2012, the Hon’ble Supreme Court had lifted the ban and permission was given for resumption of mining operation in category ‘A’ mines. Pursuant to the recommendation made by the Central Empowered Committee’s report dated 28.09.2012 and in the Writ Petition No. 562/2009, the Hon’ble Supreme Court, vide its order dated 28.09.2012, dealing with the mining companies in category ‘B’, pursuant to the suggestion made by the amicus, the Hon’ble Apex Court’s order and reports of Central Empowered Committee, the Hon’ble court passed the following order directing the leaseholders of mining to pay compensatory amount for Page 8 of 13 illegal mining as well as illegal ore burden dumps and also guarantee money for implementation of R&R plan in the respective sanctioned leased areas and 15% of the sale proceeds towards setting up of SPV and also permitted the sale of the iron ore stock by E-auction. The relevant paragraphs of the order are as under:
It is also noted that the money retained at the rate of 15% of the E-auction sale proceeds is towards the setting up of special purpose vehicle. The purpose of special purpose vehicle is as follows:
“Setting up of Special Purpose Vehicle (SPV) In paragraph 10(vi) of the amicus's note, it is stated as under: "(vi) the State of Karnataka be directed to set up S p e c i a l ( SP y ) P u r p o s e V e h i c l e f o r t h e p u rp o s e o f
Page 10 of 13 ame lio ra tive and mit iga ti ve mea su re s a s per the "Comprehensive Environment Plans for the Mining Impact Zone" (CPEMIZ) around mining leases in Bellary, Chitradurga and Tumkur. The SPV would be under the Chairmanship of the Chief Secretary, Government of Karnataka and would have senior officers of the concerned departments of the State Government as Members. The SPV would function in a transparent manner and the accounts of the SPV would be subject to an annual audit by the CAG. A detailed scheme containing the details of the works to be undertaken, process of selection of implementing agencies, accounting procedure and other details of CEPMIZ may be directed to be prepared and submitted to this Hon'ble Court by the State of Karnataka, in consultation with the CEC within four weeks. The amounts received/retained by the Monitoring Committee towards (a) 10% of the sale proceeds, (b) compensation, (c) other receivable be directed to be transferred to the SPV (after its formation) for implementation of the provisions/prescriptions of CEPMIZ.”
In the backdrop of above facts, we need to examine the taxability or otherwise of 15% of the E-auction sale proceeds retained by the Central Empowered Committee and the money paid by the appellant towards compensation in the light of the orders passed by Hon’ble Supreme Court. At this juncture, without dwelling into the merits of this issue, we find from the material on record that the orders of Hon’ble Supreme Court are passed subsequent to the end of the assessment year and even the sale proceeds were remitted by the Govt. of Karnataka, Department of Mines and Geology, to the appellant on 03.01.2013 vide proceedings No. DMG/MONCOM/E-Auction/2012-13, is placed at page No. 13 of the paper book which reads as under:
The appellant had not made any direct sales. The stock is under the control of the Central Empowered Committee. It is only the Central Empowered Committee alone which is empowered to conduct the E- auction in terms of the Hon’ble Supreme Court order. The material factor to be taken into consideration is that the Hon’ble Supreme Court had passed the order after the end of the previous year relevant to assessment year under consideration. In the given facts of the case, it cannot be said that the sale proceeds had accrued to the appellant though it was following mercantile system of accounting as there was no accrual of right to receive payment, having regard to the ratio laid down by the Hon‘ble Apex Court laid down in the cases of CIT vs. Shoorji Vallabhdas & Co. (46 ITR 144), CIT vs. Birla Gwalior (P) Ltd. (89 ITR
Page 12 of 13 266) Poona Electric Supply Co. Ltd. vs. CIT (57 ITR 521), R.B.Jodha Mal Kuthiala vs. CIT (82 ITR 570) and State Bank of Travancore vs. CIT (158 ITR 102). Thus, it is clear that the sale proceeds had accrued to the appellant only by virtue of the order of the Director of Department of Mines and Geology vide proceedings No.DMG/MONCOM/E-Auction/2012- 13 dated 03.01.2013. The taxability or otherwise of it can be considered only during the period ending on 31.03.2013, whereas the assessment year before us is pertaining to the previous year ending on 31.03.2012. Furthermore, the orders of Hon’ble Supreme Court imposing the compensation/penalty, empowering the Central Empowered Committee to retain 15% of the sale proceeds were also paid subsequent to the assessment year under consideration and interlinked with the transaction of E- auction sale proceeds.
Therefore it is clear that the appellant had offered an income which is not assessable for that year. Even after the deductions, there was income offered to tax which is not otherwise assessable for the assessment year under consideration. It is the duty of the AO to assess the correct income in the right assessment year. However, this failure of the AO had not resulted in any prejudice to the revenue. Therefore, the assessment order passed by the AO, though erroneous, but cannot be termed as prejudicial to the interests of revenue. It is trite law that the pre-conditions for invoking the provisions of section 263 of the Act, the twin conditions that order is erroneous and also prejudial to interests of revenue are required to be satisfied simultaneously. Reliance can be placed on the decision of the Hon’ble Supreme Court in the case of Malabar Industrial Co. Ltd. vs. CIT (243 ITR 823)(SC). In the present case, in the absence of satisfaction of these twin conditions, the order of revision passed by the Principal CIT is not valid in law.
In the result, the appeal filed by the assessee is allowed.
Page 13 of 13 Order pronounced in the open court on 19th December, 2017.