EASTERN COALFIELDS LTD.,BARDHAMAN vs. DCIT, CIR. 2, ASANSOL

Before adverting to the ground of appeal raised by the ld. Counsel for the assessee before us, we deem it appropriate to take note of brief facts.

3. The assessee has filed its return of income on 30.10.2004 disclosing loss of Rs.530,88,34,988/-. The case of the assessee was selected for scrutiny assessment and notices under sections 143(1) and 143(2) were issued and served upon the assessee. The ld. Assessing Officer has passed the assessment order on 29.12.2006. The assessee has made an interim payment to National Coal Wages Act (NCWA), Schedule-VII. The ld. Assessing Officer has disallowed the deduction of this payment to the assessee.

Ld. Counsel for the assessee submitted that this order is running into 37 pages, but he has placed on record the relevant part of this order, which is only three pages. Page no. 36, paragraph no. 49 reads as under:- “49. The last common ground except variance in amount that remains for adjudication is Gr. No. 10 in AY 2004-05 and Ground No. 9 in AY 2005-06 reads as follows:- “That on facts as well as on law, the ld. A.O. has erred in disallowing Rs.28557.50 lakhs on account of interim payment on account of NCWA-VII”.

A perusal of the above finding would reveal that the Tribunal has relegated this issue to the file of ld. CIT(Appeals) for fresh adjudication.

After the first round of ITAT, order that is passed in to 464/KOL/2009 for A.Ys. 2003-04 to 2005-06, the ld. CIT(Appeals) took up the matter and decided it on merit vide order dated 9th January, 2018. Copy of this order has been made available on page no. 34 of the paper book. The ld. CIT(Appeals) has allowed the claim of assessee.

Dissatisfied with the order of ld. CIT(Appeals), Revenue came up in appeal before the ITAT bearing ITA No. 1357/KOL/2018. This appeal was decided by the Tribunal vide its order dated 15th May, 2018 and the copy of the order is (A.Y. 2004-2005) Eastern Coalfields Limited, Dishergarh available at page 43 of the paper book. The Tribunal has again set aside this issue to the file of ld. CIT(Appeals) for adjudication.

Ld. Counsel for the assessee submitted that after this order of the ITAT, two proceedings have been emanated:- (a) The ld. Assessing Officer has given effect to the original order of the ld. CIT(Appeals) vide its order dated 12.12.2017 and in this order, ld. Assessing Officer has made disallowance of Bus Hire Charges.

In the second round, one appeal was filed against the assessment order dated 12.12.2017 passed under section 154/143/250 of the Income Tax Act, in other words, it is an appeal giving effect of the order of ld. CIT(Appeals). As observed earlier, the second appeal has been instituted by the ITAT setting aside the issue regarding payment made to NCWA, Schedule-VII. The assessee availed the benefit of Vivad Se Vishwas Scheme qua Bus Hire Charges, which has been added by the ld. Assessing Officer while giving effect to the order of ld. CIT(Appeals). Therefore, ld. CIT(Appeals) ought to have dismissed the appeal to that extent and on the ground of admissibility of deduction qua the payment made to NCWA, Schedule-VII amounting to (A.Y. 2004-2005) Eastern Coalfields Limited, Dishergarh Rs.28557.50 lakhs ought to be decided on merit. Ld. Counsel for the assessee has further contended that the ld. 1st Appellate Authority has treated both the appeals as settled under VSV Scheme, namely against the order giving effect of ld. ITO passed on 12.12.2017 and as per the order of ITAT dated 15.05.2018 (ITA No. 1357/KOL/2018). Since the second appeal has erroneously been dismissed by the ld. CIT(Appeals), it was bound to decide the issue of admissibility.

In the result, the appeal of the assessee is allowed for statistical purposes. The ld. CIT(Appeals) is directed to decide the issue whether the assessee is entitled for deduction of Rs.28557.50 lakhs on account of interim payment made to NCWA, Schedule-VII or not. Order pronounced in the open Court on 23/02/2024.