Narbheram Vishram, Jharkhand V. ACIT, Central Circle - 4(2), Kolkata , Kolkata

CO 58/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4956 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-01-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI ROY
• Assessee Lawyers: A K TIBREWAL
• Keywords: Reopening of assessment; Invalid notice; Business income; Principle of natural justice; Tangible material; Competent authority; Reason to believe; Set aside
• Section: 143(3); 133(6); 201; 13; 147; 148

Judgement Text

ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT AND SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER I.T.A. NO. 685/KOL/2018 ASSESSMENT YEAR: 2008-2009 ASSISTANT COMMISSIONER OF INCOME TAX,.............. ............................APPELLANT CENTRAL CIRCLE-4(2), KOLKATA, AAYAKAR BHAWAN POORVA, 5 TH FLOOR, ROOM NO. 506, 110, SHANTI PALLY, KOLKATA-700107 -VS.- M/S. NARBHERAM VISHRAM,............................ ..................................RESPONDENT GUA, SINGHBHUM WEST, JHARKHAND-833213 [PAN:AABFN7217R] & C.O. NO. 58/KOL/2018 (ARISING OUT OF I.T.A. NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM,............................ ...............................CROSS OBJECTOR GUA, SINGHBHUM WEST, JHARKHAND-833213 [PAN:AABFN7217R] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ............................RESPONDENT CENTRAL CIRCLE-4(2), KOLKATA, AAYAKAR BHAWAN POORVA, 5 TH FLOOR, ROOM NO. 506, 110, SHANTI PALLY, KOLKATA-700107 APPEARANCES BY: SHRI DHRUBAJYOTI ROY, JCIT, FOR THE DEPARTMENT SHRI A.K. TIBREWAL, FCA & SHRI AMIT AGARWAL, ADVOCA TE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JANUARY 07, 2020 DATE OF PRONOUNCING THE ORDER : FEBRUARY 21, 2020 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT :- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATA DA TED 29.01.2018 AND ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 2 THE SAME IS BEING DISPOSED OF ALONG WITH THE CROSS OBJECTION FILED BY THE ASSESSEE BEING C.O. NO. 58/KOL/2018. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS ENGAGED IN THE BUSINESS OF MINING OF IRON ORE. IN T HE ASSESSMENT ORIGINALLY COMPLETED UNDER SECTION 153A/143(3) OF T HE INCOME TAX ACT, 1961 VIDE ORDER DATED 13.12.2012, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.62,77,25, 190/-. THE ASSESSMENT WAS SUBSEQUENTLY REOPENED BY THE ASSESSING OFFICER ON THE BASIS OF INFORMATION AVAILABLE IN JUSTICE M.B. SHAH COMMISSI ONS REPORT ON ILLEGAL MINING RECEIVED FROM THE OFFICE OF DGIT (INVESTIGAT ION), WHICH REVEALED THAT THE ASSESSEE-FIRM HAD UNDERSTATED ITS ACTUAL P RODUCTION OF QUANTITY OF IRON ORE FOR THE YEAR UNDER CONSIDERATION TO THE EXTENT OF 10,761 METRIC TON VALUED AT RS.2,79,29,422/-. THE ASSESSIN G OFFICER ACCORDINGLY ISSUED A NOTICE UNDER SECTION 148 ON 17.02.2015 AFT ER RECORDING THE REASONS. DURING THE COURSE OF ASSESSMENT PROCEEDING S, IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE DIFFERENCE IN TH E PRODUCTION OF IRON ORE AS ALLEGEDLY POINTED OUT BY THE ASSESSING OFFICER I N THE AUDITED ACCOUNT WAS DUE TO INTER-GROUPING ERROR. IT WAS ALSO SUBMIT TED THAT THE PRODUCTION OF IRON ORE AS SHOWN IN SHAH COMMISSION S REPORT WAS ERRONEOUS. IN ORDER TO VERIFY THIS ASPECT, A NOTICE UNDER SECTION 133(6) OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER TO THE MANAGER OF PARADEEP PORT TRUST THROUGH WHICH THE IRON ORE WAS EXPORTED BY THE ASSESSEE. AS PER THE REPLY RECEIVED BY THE ASSESSING OFFICER FRO M PARADEEP PORT TRUST, TOTAL QUANTITY OF IRON ORE EXPORTED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION WAS 3,90,872 METRIC TON. SINCE THE AS SESSEE HAD SHOWN THE TOTAL EXPORT OF 3,82,872 METRIC TON IN ITS BOOKS OF ACCOUNT FOR THE YEAR UNDER CONSIDERATION, THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO EXPLAIN THE DIFFERENCE IN THE EXPORT OF IRON ORE TO THE EXTENT OF 8,000 METRIC TON. IN REPLY, IT WAS SUBMITTED BY THE ASSES SEE THAT THE DETAILS OF EXPORT OF IRON ORE WERE ALSO GIVEN BY PARADEEP PORT TRUST IN THEIR REPLY ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 3 FOR OTHER YEARS. IT WAS POINTED OUT THAT THE EXPORT SHOWN BY PARADEEP PORT TRUST IN THEIR REPLY WAS LESS BY 23,000 METRIC TON AND 47,600 METRIC TON IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEA RS 2009-10 AND 2010- 11 RESPECTIVELY THAN THE EXPORT SHOWN BY THE ASSESS EE. IT WAS SUBMITTED THAT THE PARADEEP PORT TRUST THUS MIGHT HAVE SHOWN SOME OF THE EXPORTS OF A.Y. 2009-10 IN THE YEAR UNDER CONSIDERATION I.E . 2008-09. THIS EXPLANATION OFFERED BY THE ASSESSEE WAS NOT FOUND A CCEPTABLE BY THE ASSESSING OFFICER. HE HELD THAT THE DIFFERENCE OF 8 ,000 METRIC TON IN EXPORT WAS NOT PROPERLY RECONCILED BY THE ASSESSEE AND BY TREATING THE SAME AS THE SUPPRESSED EXPORT SALE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, THE VALUE THEREOF AMOUNTING TO RS.2, 93,18,510/- WAS ADDED BY HIM TO THE TOTAL INCOME OF THE ASSESSEE IN THE A SSESSMENT COMPLETED UNDER SECTION 147/143(3)/153A OF THE ACT VIDE ORDER DATED 30.03.2016. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 147/143(3)/153A OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE VALIDIT Y OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER AS WELL AS DISPUTING THE ADDITION OF RS.2,93,18,510/- MADE TO ITS TOTAL INCOME ON ACCOUNT OF THE ALLEGED SUPPRESSION OF EXPORT SALE. 4. AFTER CONSIDERING THE SUBMISSIONS MADE BY THE AS SESSEE AND PERUSING THE MATERIAL AVAILABLE ON RECORD, THE LD. CIT(APPEALS) DID NOT FIND MERIT IN THE ISSUE RAISED BY THE ASSESSEE CHAL LENGING THE VALIDITY OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 147/143(3)/153A AND REJECTING THE CASE OF THE ASSES SEE ON THIS ISSUE, HE UPHELD THE VALIDITY OF THE ORDER PASSED BY THE ASSE SSING OFFICER UNDER SECTION 147 FOR THE FOLLOWING REASONS GIVEN ON PAGE S 10 & 11 OF HIS IMPUGNED ORDER:- 1. I HAVE CAREFULLY CONSIDERED THE ADDITIONAL GROU NDS TAKEN BY THE APPELLANT IN THE COURSE OF THE HEARING . IN THESE GROUNDS IT HAS BEEN CONTENDED THAT THE LD AO HAS ER RED IN ASSUMING JURISDICTION IN THIS CASE UNDER SECTION 14 7/148 OF ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 4 THE INCOME TAX ACT, 1961 IN ABSENCE OF THE MANDATOR Y CONDITIONS FOR ASSUMING JURISDICTION UNDER SECTION 147/148 OF THE INCOME TAX ACT, 1961. IT HAS BEEN FURTHER CONTE NDED THAT THE IMPUGNED NOTICE ISSUED BY THE LD AO UNDER SECTI ON 148 OF THE INCOME TAX ACT, 1961 ON 12 TH MARCH, 2015, IN THE CASE OF THE ASSESSEE, WAS INVALID, ILLEGAL, WITHOUT JURISDI CTION AND VOID AB INITIO AND THEREFORE THE IMPUGNED ASSESSMENT ORD ER PASSED BY HIM UNDER SECTION 147/143(3)/153A OF THE ACT, IN PURSUANCE TO SUCH INVALID NOTICE IS LIABLE TO BE QU ASHED. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. ARS OF THE APPELLANT AND THE REASONS RECORDED BY THE LD. AO FO R REOPENING THE INCOME-TAX ASSESSMENT FOR THE RELEVAN T A.Y. 2008-09. IN THE PRESENT CASE THE PROCEEDINGS U/S 14 7 WERE INITIATED AFTER 4 YEARS. THE NOTICE WAS ISSUED AFTE R THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSME NT YEAR AND THEREFORE IT WAS NECESSARY TO ENSURE THAT CONDITION S PRESCRIBED IN THE FIRST PROVISO TO SECTION 147 WERE ATTRACTED. IN TERMS OF THE SAID FIRST PROVISO THE ASSESSMENT C OULD HAVE BEEN REOPENED ONLY IF THERE WAS FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE TRULY AND FULLY ALL THE FACTS NECESSARY FOR ASSESSING TOTAL INCOME, WHICH WAS CHARGEABLE TO TAX FOR THE RELEVANT ASSESSMENT YEAR. IN THE PRESENT CASE IN TH E OBJECTIONS RAISED AT APPELLATE STAGE, THE LD. ARS CLAIMED THAT THE LD. AO DID NOT PROVIDE THE APPELLANT WITH RECORDED REASONS WITHIN REASONABLE TIME AND THEREAFTER WHEN THE OBJECTIONS WERE FILED HE DISPOSED THE OBJECTIONS BY PASSING AN ORDER IN T HE PERFUNCTORY MANNER AND THAT ALSO JUST BEFORE THE AS SESSMENT WAS GETTING BARRED BY LIMITATION. ACCORDING TO THE LD. ARS OF THE APPELLANT, THE ACTS OF THE LD. AO WERE DESIGNED WITH PRE- MEDITATED DECISION TO COMPLETE THE REASSESSMENT PRO CEEDINGS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2. IN MY CONSIDERED OPINION THE INCOME-TAX ACT, 19 61 NOWHERE STIPULATES THE TIME LIMIT FOR DISPOSING THE OBJECTIONS RAISED BY THE ASSESSEE TO THE REASONS RECORDED U/S. 148, EVEN THE REQUIREMENT FOR DISPOSAL OF OBJECTIONS IS A PRO CEDURAL REQUIREMENT MANDATED BY THE HON'BLE SUPREME COURT I N ITS DECISION REPORTED IN GKN DRIVESHAFTS (INDIA) LTD. V S. ITO (259 ITR 19). IN THE CIRCUMSTANCES THEREFORE SO LONG AS THE LD. AO PASSED AN ORDER DISPOSING THE OBJECTIONS RAISED, IT WAS SUFFICIENT COMPLIANCE WITH THE REQUIREMENTS LAID DO WN BY THE HON'BLE SUPREME COURT AND THE MERE DELAY IN DISPOSI NG THE OBJECTIONS CANNOT BE THE REASON TO HOLD THE ASSESSM ENT INVALID IN LAW. 3. IN THE WRITTEN SUBMISSIONS MUCH EMPHASIS WAS PL ACED ON THE FACT THAT IN THE COURSE OF REGULAR ASSESSMEN T U/S 143(3) OF THE ACT, THE APPELLANT HAD FURNISHED DETA ILS AS REQUISITIONED BY THE LD. AO AND AS SUCH THERE WAS N O FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE TRULY & FUL LY ALL FACTS NECESSARY FOR ASSESSMENT. FROM THE REASONS SET OUT UNDER ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 5 SECTION 148, I FIND THAT THE ASSESSMENT WAS REOPENE D PURSUANT TO CERTAIN INFORMATION REACHING LD. AO ABOUT CERTAI N INCOMES ESCAPING ASSESSMENT ON THE BASIS OF THE JUSTICE M.B . SHAH COMMISSION REPORT. THE SAID ORDER AND INFORMATION W AS PASSED ON TO THE LD. AO AND THEREFORE, THE SAME CON STITUTED FRESH TANGIBLE MATERIAL FOR REOPENING THE ASSESSMEN T TO VERIFY THE AMOUNTS SPECIFIED IN THE COMMISSION REPORT. IN VIEW OF THE ABOVE, IT NOTED THAT THE FORMATION OF BELIEF ON THE LD. AO'S PART HAD A LIVE & DIRECT NEXUS WITH THE INFORMATION AVAILABLE IN THE REPORT AND SUCH NEXUS COULD NOT BE CONSIDERE D TO BE FAR-FETCHED OR IRRELEVANT, AT THE STAGE OF FORMATIO N OF BELIEF, IT WAS NOT NECESSARY FOR THE LD. AO TO COME TO CONCLUS ION OR PROVE THAT THE AMOUNT WAS ACTUALLY SUPPRESSED OR TH AT THE INFERENCES DRAWN BY THE SHAH COMMISSION WERE TRUE A ND CORRECT. AT THE STAGE OF INITIATION OF PROCEEDINGS U/S 148 /147, ALL THAT THE LD. AO WAS REQUIRED TO DEMONSTRATE WAS THAT HE WAS IN POSSESSION SOME CREDIBLE & TANGIBLE MATERIAL ON THE BASIS OF WHICH A PRUDENT PERSON PROPERLY INSTRUCTED IN LAW AND ON FACTS WOULD HAVE FORMED REASON TO BELIEVE TH AT INCOME HAD ESCAPED ASSESSMENT. THEREFORE APPLYING THE TRUE TEST REGARDING DISCLOSURE OF ALL MATERIAL FACTS TRULY AN D FULLY, I AM OF THE CONSIDERED VIEW AND OPINION THAT SUCH DISCLO SURE WAS NOT MADE BY THE APPELLANT WHEN THE ORDER U/S 143(3) WAS PASSED. 4. FOR THE FOREGOING REASONS THEREFORE I AM OF THE OPINION THAT THE LD. AO RIGHTLY INVOKED PROVISIONS OF SECTI ON 147 BEFORE ISSUING NOTICE U/S 148 OF THE INCOME TAX ACT , 1961. SINCE, I HAVE HELD THAT THE INITIATION OF PROCEEDIN GS U/S 148 WAS VALID AND PROPER, THE CONSEQUENT ORDER PASSED U /S 147/ 143(3)/153A DATED 30,03.2016 IS ALSO HELD TO BE VAL ID. ACCORDINGLY, I DO NOT FIND MERIT IN THE ADDITIONAL GROUNDS NOS. 1 & 2, AND THE SAME ARE THEREFORE DISMISSED. 5. THE LD. CIT(APPEALS), HOWEVER, FOUND MERIT IN TH E SUBMISSION MADE ON BEHALF OF THE ASSESSEE IN SUPPORT OF ITS CASE TH AT THE ADDITION OF RS.2,93,18,510/- MADE ON ACCOUNT OF THE ALLEGED SUP PRESSION OF EXPORT SALE WAS NOT SUSTAINABLE AND DELETED THE SAME FOR T HE FOLLOWING REASONS GIVEN ON PAGES 15 TO 18 OF HIS IMPUGNED ORDER:- 4. I HAVE CAREFULLY PERUSED THE SUBMISSIONS FILED BY THE APPELLANT AGAINST THE IMPUGNED OBSERVATIONS OF THE LD. AO. TH E QUESTION TO BE ADDRESSED IS WHETHER THE FIGURES SHOWN BY THE PA RADEEP PORT TRUST ARE TO BE TAKEN AT FACE VALUE AS SACROSANCT. I FIND THAT THE LD. AO HIMSELF DOES NOT BELIEVE SO, AS IN CERTAIN O THER YEARS HE HAS ADOPTED THE FIGURES DISCLOSED BY THE APPELLANT WHEN THEY ARE HIGHER. IN MY CONSIDERED VIEW THE LD. AO CANNOT PIC K AND CHOOSE FIGURES FROM EITHER THE PORT TRUST STATEMENT OR THE APPELLANT'S ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 6 STATEMENT, AS PER HIS CONVENIENCE. I FIND .THAT IN THIS SUBJECT A.Y, THE LD AO HAS TAKEN THE FIGURES OF THE PORT TRUST, BUT IN TWO SUCCEEDING YEAR AY 2009-10 & 2010-11, HE HAS TAKEN THE FIGURES FROM THE ASSESSEES BOOKS OF ACCOUNTS, AND DISCARDE D FIGURES OFFERED BY THE PORT TRUST WERE ON THE LOWER SIDE VI S-A-VIS THE FIGURES DISCLOSED BY THE APPELLANT. THEREFORE, FROM THE FACTUAL MATRIX IT EMERGES THAT THE LD. AO HAS HIMSELF NOT C ONSIDERED THE FIGURES OFFERED BY THE PPT AS SACROSANCT, AND RATHE R HE HAS BEEN COMPELLED TO TAKE WHICH EVER FIGURES WERE HIGHER. 5. IT MAY BE WORTHWHILE TO REPRODUCE THE INFORMATIO N AS RECEIVED BY THE LD. AO FROM THE PORT TRUST, THE DOCUMENTS LE ADING TO THE DISPUTE. KHATAU NARBHERAM & CO. NARBHE RAM VISHRAM FIN. YEAR QUANTITY IN MT. FOB VALUE IN RS. QUANTITY IN MT. F OB VALUE IN RS. TOTAL (1&2) 2006 - 07 161857 355979433 0 0 2007 - 08 346263 1280137601 44609 152335484 390872 2008 - 09 187569 697111558 56500 148844316 244069 2009 - 10 75758 316399811 146855 392801017 222613 2010 - 11 137400 724477735 34340 159440611 2011 - 12 27600 189242820 75800 440429125 2012 - 13 NIL NIL NIL NIL 2013 - 14 43200 221878440 NIL NIL 2014 - 15 NIL NIL NIL NIL THE DIFFERENCES THAT EMERGE AS FOLLOWS: 1. IN THE A.Y 2008-09, THE PPT HAS SHOWN TOTAL FIGU RE OF EXPORT OF 3,90,872 MT, WHEREAS THE APPELLANT HAS SHOWN FIGURE OF 3,82,872 MT, THERE BEING NEGATIVE FIGURE OF 800 MT IN THE BOOKS OF THE ASSESSEE. 2. IN THE A.Y 2009-10, THE PPT HAS SHOWN TOTAL FIGU RE OF EXPORT OF 2,44,069 MT, WHEREAS THE APPELLANT HAS SHOWN FIGURE OF 2,67,069 MT, THERE BEING POSITIVE FIGURE OF 23,000 MT IN THE BOO KS OF THE ASSESSEE. 3. IN THE A.Y 2010-11, THE PPT HAS SHOWN TOTAL FIGU RE OF EXPORT OF 2,22,613 MT, WHEREAS THE APPELLANT HAS SHOWN FIGURE OF 2,70,213 MT, THERE BEING POSITIVE FIGURE OF 47,600 MT IN THE BOO KS OF THE ASSESSEE. 4. THE ABOVE CLEARLY BRINGS FORTH THE MERIT IN THE APPELLANT'S CONTENTIONS THAT THE FIGURES OF THE PORT TRUST WERE NOT RELIABLE, AS THERE ARE DIFFERENCES FOR EVERY YEAR ANALYSED, AND THE LD AO HAS SELECTIVELY PICKED THE FIGURE FOR THE SUBJECT AY 20 08-09 ONLY FOR THE REASON THAT THE FIGURE OFFERED BY THE PPT WAS MORE BY 800MT THAN THE FIGURE DISCLOSED IN THE BOOKS OF ACCOUNTS OF THE AS SESSEE-APPELLANT. 6. I HAVE ALSO CONSIDERED THE MATTER FROM THE ANGLE OF POSSIBILITY, NAMELY WHETHER THERE IS ANY EVIDENCE AVAILABLE WITH THE LD. AO THAT THERE HAS BEEN PRODUCTION BEYOND THE DISCLOSED AMOU NTS IN THE BOOKS WHICH COULD HAVE BENNE EXPORTED, IT IS OBSERVED THA T THE FIGURES OF PRODUCTION OF IRON ORE AS DISCLOSED BY THE ASSESSEE -FIRM IN THE AUDITED BOOKS OF ACCOUNTS HAVE BEEN ACCEPTED BY THE ASSESSI NG OFFICER. THE LD AO HAS HIMSELF ACCEPTED THE FIGURES OF PRODUCTION B Y NOTING IN THE ASSESSMENT ORDER (NOTE 1, RELEVANT FOR SUBJECT AY 2 008-09) THAT THE ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 7 PRODUCTION AS PER FORM NO H-L FILED BY THE APPELLAN T WAS ACCEPTABLE, AS THE 'REGIONAL CONTROLLER OF MINES HAS CONFIRMED THA T THEIR OFFICE HAS NO INFORMATION ABOUT THE BASIS ON WHICH THE SHAH CO MMISSION HAD INFERRED DIFFERENT PRODUCTION (I.E. 11,74,680 MT AS PER ASSESSEE, AND 11,85,441 AS PER THE JUSTICE SHAH COMMISSION REPORT ). HENCE, THEIR OFFICE IS NOT IN A POSITION TO CERTIFY THE FIGURES MENTIONED IN THE SHAH COMMISSION REPORT. IN VIEW OF THAT THE PRODUCTION F IGURE AS PER H-L IS TAKEN TO BE TRUE.' THEREFORE, IT IS APPARENT THAT T HE COMPETENT AUTHORITY, NAMELY THE REGIONAL CONTROLLER OF MINES HAS ALREADY CERTIFIED THE PRODUCTION. AS SUCH THERE IS VERY LES S POSSIBILITY OF UNREPORTED PRODUCTION BY THE ASSESSEE CONTRIBUTING TOWARDS THE ALLEGED EXCESS AND SUPPRESSED EXPORT SALES. 7. THE APPELLANT-FIRM HAS ALSO BEEN ABLE TO SUBMIT THE EXACT BREAK UP OF EXPORTS TO VARIOUS PARTIES REALISED THROUGH THE PARADEEP PORT TRUST. THE BILL DATES, THE NAMES OF THE PARTIES, THE QUANT ITY AND VALUE AS PER SHIPPING BILLS HAVE ALSO BEEN MENTIONED. THE SAID D ETAILS ARE AS UNDER: M/S. NARBHERAM VISHRAM DETAILS OF EXPORTS FROM THE PARADEEP PORT DURING TH E FY 2007-08 (AY 2008-09) BILL DATE PARTYS NAME QTY (MT) FOB VALUE AS PER SHIPPING BILL (RS.) 04.04.2007 CITIC AUSTRALIA COMMODITY TRADING PVT. LTD. 17500 43721563 27.05.2007 VISA COMTRADE AG 21612 49449120 08.06.2007 VISA COMTRADE AG 45630 137464299 23.06.2007 SACVINAM GLOBAL LTD. 4811 8940762 03.07.2007 SACVINAM GLOBAL LTD. 10400 25512115 17.07.2007 GOLDEN WORLD ENTERPRISE LTD. 3500 10027001 28.07.2007 GOLDEN WORLD ENTERPRISE LTD. 15000 42528840 12.08.2007 VISA COMTRADE AG 22800 52991669 05.09.2007 VISA COMTRADE AG 13009 30760352 07.10.2007 GOLDEN WORLD ENTERPRISE LTD. 26900 103239994 26.10.2007 GOLDEN WORLD ENTERPRISE LTD. 24700 94230327 04.12.2007 VISA COMTRADE AG 18695 83076227 25.12.2007 GOLDEN WORLD ENTERPRISE LTD. 25800 122355520 09.01.2008 GOLDEN WORLD ENTERPRISE LTD. 15500 73508161 24.01.2008 VISA COMTRADE AG 14050 63498975 22.01.2008 GOLDEN WORLD ENTERPRISE LTD. 16050 72537975 28.01.2008 VISA COMTRADE AG 30900 139652550 14.02.2008 GOLDEN WORLD ENTERPRISE LTD. 24201 116803997 26.02.2008 GOLDEN WORLD ENTERPRISE LTD. 20000 80680320 29.03.2008 GOLDEN WORLD ENTERPRISE LTD. 11814 51779344 382872 140,27,59,111 8. ACCORDINGLY, IT IS SEEN THAT THE APPELLANT HAS B EEN ABLE TO LIST OUT THE VARIOUS PARTIES TO WHOM EXPORT SALES HAVE BEEN EFFE CTED. THERE IS MERIT IN THE SUBMISSIONS OF THE APPELLANT THAT THE ASSESS EE CANNOT BE EXPECTED TO SUBMIT A RECONCILIATION STATEMENT, AS H E HAS SUBMITTED ALL ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 8 THE NITTY-GRITTY DETAILS. IN MY CONSIDERED OPINION, IT WAS THE LD. AO TO CALL FOR AND OBTAIN THE DETAILS OF THE FIGURES OFFE RED BY THE PPT, SO THAT THE DIFFERENCES OF 800 MT ALONG WITH DETAILS COULD HAVE BEEN OFFERED TO THE APPELLANT FOR RECONCILIATION. THE DETAILS OUGHT TO HAVE INCLUDED THE NAMES AND/OR DETAILS OF THE IMPORTERS OF THE 8000 M T OF IRON ORE ALLEGEDLY EXPORTED BY THE ASSESSEE FIRM. THIS HAS N OT BEEN DONE BY THE LD. AO. 9. I AGREE WITH THE APPELLANT/ LD A.R THAT THE APPE LLANT CANNOT BE EXPECTED TO DISCHARGE AN IMPOSSIBLE BURDEN, AS IN S UCH NEBULOUS SITUATIONS, THE ONUS WOULD BE ON THE PERSON WHO ALL EGES, AND NOT ON THE PERSON AGAINST WHOM AN ALLEGATION IS MADE, ESPECIAL LY WHEN THE THREADBARE DETAILS HAVE BEEN OFFERED. THE HONBLE B OMBAY HIGH COURT VERY LONG BACK, IN THE CASE OF CIT VS BOMBAY TRUST CORPORATION 6 ITR 445 (BOM) HAD SO OBSERVED, AND IN MY CONSIDERED VIE W THE SAME STILL STAND ON A FIRM FOOTING. THE MAXIM 'LEX NON COGIT A S IMPOSSIBILLA' OR THAT THE LAW CANNOT COMPEL A PERSON TO PERFORM THE IMPOSSIBLE IS, IN MY CONSIDERED OBSERVATION APPLICABLE IN THIS CASE. IN THE CASE OF KRISHNASWAMY S. PD. VS.- UNION OF INDIA [2006J 201 CTR (SC) 183 : [2006J 281 ITR 305 (SC), THE HONBLE SUPREME COURT HAS HELD THAT THE MAXIM ACTUS CURIAE NEMINEM GARVABIT, I.E., AN ACT O F COURT SHALL PREJUDICE NO MAN, IS FOUNDED UPON JUSTICE AND GOOD SENSE WHICH SERVES A SAFE AND CERTAIN GUIDE FOR THE ADMINISTRATION OF LAW. THE OTHER RELEVANT MAXIM IS LEX NON COGIT DIMPOSSIBILIA - THE LAW DOES NOT COMPEL A MAN TO DO WHAT HE CANNOT POSSIBLY PERFORM. THE LA W ITSELF AND ITS ADMINISTRATION IS UNDERSTOOD TO DISCLAIM AS IT DOES IN ITS GENERAL APHORISMS, ALL INTENTION OF COMPELLING IMPOSSIBILIT IES, AND THE ADMINISTRATION OF LAW MUST ADOPT THAT GENERAL EXCEP TION IN THE CONSIDERATION OF PARTICULAR CASES. THE RELIANCE OF THE LD. A.R ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF KR ISHNANAND VS THE STATE OF MADHYA PRADESH [AIR 1977 SE 796] /(1977) 1 SCC 816 IS FOUND TO BE RELEVANT IN THE EMERGENT CIRCUMSTANCES OF THE CASE, AND IN MY CONSIDERED VIEW NO BURDEN TO RECONCILE THE ALLEGED DIFFERENCES BETWEEN HIS OWN FIGURES AND THOSE SUPPLIED BY THE PORT TRUS T FOR THE SUBJECT ASSESSMENT YEAR LAY ON THE APPELLANT-FIRM. FOR THE REASONS SET OUT IN THE FOREGOING THEREFORE, I AM UNABLE TO AGREE WITH THE ACTION OF THE LD. AO IN MAKING THE IMPUGNE D ALLOWANCE OF RS.2,93,18,510/-, WHICH STAND DELETED. GROUND NO. 1 TAKEN BY THE APPELLANT-FIRM STANDS ALLOWED. AGGRIEVED BY THE RELIEF ALLOWED BY THE LD. CIT(APPE ALS) TO THE ASSESSEE, THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TR IBUNAL, WHILE THE ASSESSEE HAS ALSO FILED ITS CROSS OBJECTION RAISING THE ISSUE OF VALIDITY OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 147/143(3)/153A OF THE ACT. ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 9 6. IN SUPPORT OF THE ISSUE RAISED IN THE CROSS OBJE CTION OF THE ASSESSEE CHALLENGING THE VALIDITY OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 147/143(3)/153A OF THE ACT, THE LD. C OUNSEL FOR THE ASSESSEE CONTENDED THAT THE ORIGINAL ASSESSMENT IN THE ASSESSEES CASE FOR THE YEAR UNDER CONSIDERATION WAS COMPLETED BY THE A SSESSING OFFICER UNDER SECTION 153A/143(3) OF THE ACT. HE SUBMITTED THAT THE SAID ASSESSMENT WAS REOPENED BY THE ASSESSING OFFICER ON 17.02.2015, I.E. THAT THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVA NT ASSESSMENT YEAR AND AS PER THE FIRST PROVISO TO SECTION 147, SUCH REOPE NING AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR WAS PERMISSIBLE ONLY WHEN ANY INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE T O DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THE RELEVANT ASSESSMENT YEAR. HE INVITED OUR ATTENTION TO THE RE ASONS RECORDED BY THE ASSESSING OFFICER AS GIVEN ON PAGE 2 OF HIS PAPER B OOK AND SUBMITTED THAT NO SUCH FAILURE ON THE PART OF THE ASSESSEE TO DISC LOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS SPECIFICALLY POINTED OUT BY THE A SSESSING OFFICER. BY RELYING ON THE VARIOUS JUDICIAL PRONOUNCEMENTS, HE CONTENDED THAT THE REOPENING OF THE ASSESSMENT ORIGINALLY COMPLETED UN DER SECTION 153A/143(3) OF THE ACT AFTER THE EXPIRY OF FOUR YEA RS BY THE ASSESSING OFFICER THUS WAS BAD-IN-LAW AND THE ASSESSMENT COMP LETED UNDER SECTION 153A/143(3)/147 IN PURSUANCE THEREOF IS LIABLE TO B E CANCELLED BEING INVALID. 7. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE AS PER THE INFORMATION RECEIVED BY THE ASSESSING OFFICER H AD SUPPRESSED ITS ACTUAL QUANTITY OF PRODUCTION OF IRON ORE AND THIS INFORMATION BY ITSELF WAS SUFFICIENT TO SHOW THE FAILURE ON THE PART OF T HE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HI S ASSESSMENT FOR THE YEAR UNDER CONSIDERATION. HE CONTENDED THAT NOT ONLY THE FACTUM OF ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 10 SUPPRESSED PRODUCTION OF IRON ORE WAS POINTED OUT B Y THE ASSESSING OFFICER IN THE REASONS RECORDED BUT EVEN THE QUANTU M OF THE SAME WAS SPECIFICALLY GIVEN BY HIM ALONG WITH THE CORRESPOND ING VALUE, WHICH FORMED THE BASIS OF HIS REASON TO BELIEVE THAT INCO ME OF THE ASSESSEE TO THAT EXTENT HAD ESCAPED ASSESSMENT DUE TO THE FAILU RE OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY THE PRODUCTION OF IRON ORE DURING THE YEAR UNDER CONSIDERATION. HE HAS CONTENDED THAT THE STATUTORY REQUIREMENT IN TERMS OF PROVISO TO SECTION 147 THUS WAS DULY SATISFIED B Y THE ASSESSING OFFICER AND THE REOPENING OF ASSESSMENT BY HIM AFTER THE EX PIRY OF FOUR YEARS WAS IN ACCORDANCE WITH LAW. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN ORDER TO DECIDE THIS PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION RELATING TO THE VALIDITY OF THE REOPENING OF ASSESSMENT IN THE LIGHT OF THE CONTENTIONS RAISED BY THE LD. REPRESENTATIVES OF BOTH THE SIDES, IT WOULD BE RELEVANT TO REFER TO THE REASONS RECORDED BY THE ASSESSING OFFICER, WHIC H ARE EXTRACTED BELOW:- 'AFTER COMPARING THE INFORMATION REGARDING ACTUAL P RODUCTION GATHERED FROM THE REPORT OF JUSTICE M. B. SHAH COMM ISSION ON ILLEGAL MINING AND STATUTORY AUDITED ACCOUNT OF THE ASSESSEE FIRM, IT WAS OBSERVED THAT THE ASSESSEE FIRM HAS SU PPRESSED ITS ACTUAL QUANTITY OF PRODUCTION OF IRON ORE TO THE TU NE OF 10,761 MT VALUED AT RS.2,79,29,422/- (@RS.2595.43 PER MT W HICH IS ARRIVED AT TAKING THE AMOUNT OF TOTAL SALES AS PER P&L ACCOUNT DIVIDED BY TOTAL QUANTITY OF SALES I.E. RS.2788508797.70/1074392.88). THE ASSESSEE FIRM HAS SHOWN PRODUCTION OF IRON ORE OF 11,74,680 MT IN ITS STATU TORY AUDITED ACCOUNT FOR THE F,Y, 2007-08 RELEVANT TO AY. 2008-0 9 WHEREAS FROM THE M.B, SHAH COMMISSION REPORT AT PAGE NO. 32 5, ANNEXURE-Z, VOL.-II/A OF 1ST REPORT ON ODISHA, IT R EVEALS THAT ACTUAL PRODUCTION OF IRON ORE OF THE ASSESSEE COMPA NY IN THE SAME PERIOD WAS 11,85,441 MT. HENCE, THE PRODUCTION OF IRON ORE REMAINS UNDISCLOSED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE FIRM, WORKED OUT TO 10,761 MT VALUED AT RS. 2,79,29 ,422/- FOR THE A.Y. 2008-09. ON PERUSAL OF DETAILS ON EXPORT QUANTITY VALUE OF C ARGO (IRON ORE) EXPORTED FROM PARADEEP PORT RECEIVED FROM PARA DIP PORT TRUST, PARADIP PORT, IT IS SEEN THAT THE ACTUAL QUA NTITY OF EXPORT ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 11 OF TILE IRON ORE FROM PARADIP PORT, BY THE CAPTIONE D ASSESSEE IN FY 2007-08 RELEVANT TO AY 2008-09 WAS 1,28,01,37,60 1 MT WHEREAS IN THE ASSESSEE'S BOOKS OF ACCOUNT, IT IS R EFLECTED AS 93,64,98,243 MT. HENCE THE QUANTITY OF EXPORT OF IR ON ORE TO THE TUNE OF 34,36,39,358 MT REMAINED UNDISCLOSED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE FIRM FOR THE AY 2008-09. CONSIDERING THE ABOVE, I HAVE REASON TO BELIEVE THA T INCOME TO THE TUNE OF RS.37,15,68,780/- CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IN AY 2008-09. 9. A PERUSAL OF THE REASONS RECORDED BY THE ASSESSI NG OFFICER SHOWS THAT THE INFORMATION IN THE FORM OF REPORT OF JUSTI CE M.B. SHAH COMMISSION ON ILLEGAL MINING WAS RECEIVED BY HIM GI VING ACTUAL PRODUCTION OF IRON ORE BY THE ASSESSEE-FIRM. FROM T HE SAID INFORMATION, IT WAS GATHERED BY THE ASSESSING OFFICER THAT THE ASSE SSEE-FIRM HAD SUPPRESSED ITS ACTUAL PRODUCTION OF IRON ORE FOR TH E YEAR UNDER CONSIDERATION TO THE TUNE OF 10,761 METRIC TON VALU ED AT RS.2,79,29,422/- . IT IS THUS CLEAR THAT THE FACTUM AS WELL AS QUANT UM OF SUPPRESSION OF PRODUCTION OF IRON ORE WAS NOTICED BY THE ASSESSING OFFICER FROM THE INFORMATION RECEIVED BY HIM IN THE FORM OF REPORT O F JUSTICE M.B. SHAH COMMISSION ON ILLEGAL MINING AND KEEPING IN VIEW TH AT THE PRODUCTION OF IRON ORE TO THAT EXTENT HAD REMAINED UNDISCLOSED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT, A BELIEF WAS FOUND BY THE ASSESSI NG OFFICER THAT INCOME OF THE ASSESSEE HAD ESCAPED ASSESSMENT AND THE ASSE SSMENT WAS REOPENED BY HIM AFTER RECORDING THE REASONS. THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY THE ACTUAL QUANTITY OF PRODUCTION OF IRON ORE, WHICH WAS A MATERIAL FACT NECESSARY FOR ITS ASSESSM ENT FOR THE YEAR UNDER CONSIDERATION THUS WAS CLEARLY POINTED OUT BY THE A SSESSING OFFICER IN THE REASONS RECORDED AND SINCE THE ESCAPEMENT OF INCOME CHARGEABLE TO TAX FOR THE YEAR UNDER CONSIDERATION WAS BY REASON OF S UCH FAILURE ON THE PART OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE REOPEN ING OF ASSESSMENT BY THE ASSESSING OFFICER AFTER THE EXPIRY OF FOUR YEAR S FROM THE END OF THE ASSESSMENT YEAR UNDER CONSIDERATION WAS IN ACCORDAN CE WITH THE RELEVANT PROVISIONS OF THE ACT INCLUDING THE 1 ST PROVISO TO SECTION 147. WE, ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 12 THEREFORE, FIND NO INFIRMITY IN THE REOPENING OF AS SESSMENT AS MADE BY THE ASSESSING OFFICER ON THE BASIS OF REASONS RECOR DED BY HIM AND UPHOLDING THE VALIDITY OF THE SAME, WE DISMISS THE CROSS OBJECTION FILED BY THE ASSESSEE. 10. NOW WE TAKE UP THE APPEAL OF THE REVENUE BEING ITA NO.685/KOL/2018, WHICH INVOLVES A SOLITARY ISSUE RELATING TO THE DELETION BY THE LD. CIT(APPEALS) OF THE ADDITION OF RS.2,93,18,510/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF THE ALLEGED SUPPRESSION OF EXPORT SALES. 11. THE LD. D.R. SUBMITTED THAT THE EXPORT OF IRON ORE BY THE ASSESSEE- COMPANY THROUGH PARADEEP PORT TRUST DURING THE YEAR UNDER CONSIDERATION AS REPORTED BY THE PARADEEP PORT TRUS T ITSELF IN RESPONSE TO THE ENQUIRY DIRECTLY MADE BY THE ASSESSING OFFICER WAS 3,90,872 METRIC TON AS AGAINST THE EXPORT OF 3,82,872 METRIC TON SH OWN BY THE ASSESSEE- COMPANY IN ITS BOOKS OF ACCOUNT. HE SUBMITTED THAT THIS DIFFERENCE COULD NOT BE EXPLAINED SATISFACTORILY BY THE ASSESSEE-COM PANY INSPITE OF SUFFICIENT OPPORTUNITY GIVEN BY THE ASSESSING OFFIC ER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HE CONTENDED THAT THE ONUS IN THIS REGARD WAS ON THE ASSESSEE TO EXPLAIN THE DIFFERENCE OF 8,000 METRIC TON IN THE EXPORT OF IRON ORE AS POINTED OUT BY THE ASSESSING OFFICER FROM THE RELEVANT INFORMATION RECEIVED FROM PARADEEP PORT TR UST AND SINCE THE ASSESSEE HAD FAILED TO DISCHARGE THE SAID ONUS, THE ADDITION ON ACCOUNT OF THE SAID DIFFERENCE BY TREATING THE SAME AS SUPPRES SION OF EXPORT SALE BY THE ASSESSEE WAS RIGHTLY MADE BY THE ASSESSING OFFI CER. HE CONTENDED THAT THE LD. CIT(APPEALS), HOWEVER, PUT THE ONUS ON THE ASSESSING OFFICER BY OBSERVING THAT THE ASSESSING OFFICER OUGHT TO HAVE OBTAINED THE DETAILS OF FIGURES REPORTED BY PARADEEP PORT TRUST AND FURNISH ED THE SAME TO THE ASSESSEE SO THAT THE DIFFERENCE OF 8,000 METRIC TON IN THE EXPORT OF IRON ORE COULD HAVE BEEN EXPLAINED BY THE ASSESSEE. HE S UBMITTED THAT THE ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 13 ASSESSEE-COMPANY WAS REGULARLY EXPORTING THE IRON O RE THROUGH PARADEEP PORT TRUST AND THE DIFFERENCE IN EXPORT AS POINTED OUT BY THE ASSESSING OFFICER SHOULD HAVE BEEN RECONCILED BY THE ASSESSEE BY OBTAINING THE RELEVANT DETAILS FROM PARADEEP PORT TRUST. HE CONTE NDED THAT THE DIFFERENCE IN EXPORT OF IRON ORE REPORTED BY PARADE EP PORT TRUST FOR THE SUBSEQUENT TWO YEARS AS POINTED OUT BY THE ASSESSEE WAS NOT RELEVANT TO DECIDE THIS ISSUE AND SINCE THE ONUS TO EXPLAIN THE DIFFERENCE OF 8,000 METRIC TON IN EXPORT OF IRON ORE FOR THE YEAR UNDER CONSIDERATION WAS NOT SATISFACTORILY DISCHARGED BY THE ASSESSEE, THE LD. CIT(APPEALS) WAS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSE SSING OFFICER ON THIS ISSUE. 12. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, FULLY SUPPORTED THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) GIVING R ELIEF TO THE ASSESSEE ON THIS ISSUE. HE SUBMITTED THAT THE RELEVANT QUANT ITATIVE DETAILS OF THE EXPORT OF IRON ORE THROUGH PARADEEP PORT TRUST DURI NG THE YEAR UNDER CONSIDERATION WERE FULLY FURNISHED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND HAVING SATISFIED WITH THE SAME, TH E ALLEGATION MADE BY THE ASSESSING OFFICER ON THE BASIS OF FIGURES REPOR TED BY PARADEEP PORT TRUST WAS HELD TO BE UNSUSTAINABLE BY THE LD. CIT(A PPEALS). HE CONTENDED THAT THE FACT THAT EXPORT OF IRON ORE OF THE ASSESS EE-COMPANY AS REPORTED BY PARADEEP PORT TRUST WAS ACTUALLY LESS THAN THE E XPORT SHOWN IN THE BOOKS OF ACCOUNT OF THE ASSESSEE FOR THE IMMEDIATEL Y SUCCEEDING TWO YEARS WAS SUFFICIENT TO SHOW THAT THE FIGURES REPOR TED BY PARADEEP PORT TRUST TO THE ASSESSING OFFICER WERE NOT RELIABLE AS RIGHTLY OBSERVED BY THE LD. CIT(APPEALS). HE SUBMITTED THAT THE ASSESSING O FFICER DID NOT OBTAIN THE DETAILS OF EXPORT OF IRON ORE BY THE ASSESSEE-C OMPANY FOR THE YEAR UNDER CONSIDERATION AS REPORTED BY PARADEEP PORT TR UST AND COMPARE THE SAME WITH THE DETAILS OF EXPORT OF IRON ORE AS REFL ECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. HE CONTENDED THAT THE ASSE SSING OFFICER THUS FAILED TO SUPPORT AND SUBSTANTIATE THE ALLEGATION M ADE BY HIM REGARDING ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 14 SUPPRESSION OF EXPORT SALE BY THE ASSESSEE AND THE LD. CIT(APPEALS) WAS FULLY JUSTIFIED IN DELETING THE ADDITION MADE BY TH E ASSESSING OFFICER ON THE BASIS OF UNSUPPORTED AND UNSUBSTANTIATED ALLEGA TION REGARDING SUPPRESSION OF EXPORT SALE BY THE ASSESSEE. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON THI S ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE RELEVANT DETAILS OF EXPORT OF IRON ORE AS MADE BY T HE ASSESSEE DURING THE YEAR UNDER CONSIDERATION THROUGH PARADEEP PORT TRUS T WERE OBTAINED BY THE ASSESSING OFFICER BY MAKING A DIRECT ENQUIRY WI TH THE PARADEEP PORT TRUST. AS REPORTED BY PARADEEP PORT TRUST, THE ASSE SSEE-COMPANY HAD MADE TOTAL EXPORT OF 3,90,872 METRIC TON OF IRON OR E DURING THE YEAR UNDER CONSIDERATION AND SINCE THE EXPORT OF 3,82,87 2 METRIC TON WAS SHOWN BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT, THER E WAS A DIFFERENCE IN EXPORT OF IRON ORE TO THE EXTENT OF 8,000 METRIC TO N, WHICH THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO EXPLAIN. IN REPLY, IT WAS EXPLAINED BY THE ASSESSEE THAT THE EXPORT OF IRON ORE AS REPORTED BY PARADEEP PORT TRUST WAS LESS THAN THE EXPORT FOR THE IMMEDIATELY SUCCEE DING TWO YEARS AS SHOWN BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT AND T HERE WAS A POSSIBILITY THAT PARADEEP PORT TRUST MIGHT HAVE INCLUDED SOME O F THE EXPORTS OF THE IMMEDIATELY SUCCEEDING YEAR, I.E. A.Y. 2009-10 IN T HE YEAR UNDER CONSIDERATION I.E. A.Y. 2008-09. IN OUR OPINION, TH IS EXPLANATION OFFERED BY THE ASSESSEE WAS NOT SUFFICIENT TO RECONCILE THE DIFFERENCE OF 8,000 METRIC TON IN EXPORT OF IRON ORE AS POINTED OUT BY THE ASSESSING OFFICER FOR THE YEAR UNDER CONSIDERATION ON THE BASIS OF IN FORMATION RECEIVED DIRECTLY FROM PARADEEP PORT TRUST AND THE ONUS THAT LAY ON THE ASSESSEE TO EXPLAIN THE SAID DIFFERENCE COULD NOT BE SAID TO BE SATISFACTORILY DISCHARGED. 14. AS RIGHTLY SUBMITTED BY THE LD. D.R., THE ASSES SEE WAS REGULARLY EXPORTING IRON ORE THROUGH PARADEEP PORT TRUST AND IN ORDER TO RECONCILE ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 15 THE DIFFERENCE OF 8,000 METRIC TON IN THE EXPORT FO R THE YEAR UNDER CONSIDERATION, IT SHOULD HAVE OBTAINED THE RELEVANT DETAILS FROM PARADEEP PORT TRUST TO POINT OUT SPECIFICALLY THE EXPORT OF 8,000 METRIC TON OF IRON ORE FOR THE IMMEDIATELY SUCCEEDING YEAR I.E. A.Y. 2 009-10, WHICH ACCORDING TO THE ASSESSEE WAS WRONGLY INCLUDED BY P ARADEEP PORT TRUST IN THE EXPORT OF THE YEAR UNDER CONSIDERATION AS REPOR TED TO THE ASSESSING OFFICER. IT IS PERTINENT TO NOTE HERE THAT THE UNIT OF ASSESSMENT IS THE ASSESSMENT YEAR AND WHEN THE DIFFERENCE OF 8,000 ME TRIC TON IN THE EXPORT OF IRON ORE WAS SPECIFICALLY POINTED OUT BY THE ASSESSING OFFICER FOR THE YEAR UNDER CONSIDERATION ALLEGING THE SUPPR ESSION OF EXPORT SALE BY THE ASSESSEE, THE ONUS WAS ON THE ASSESSEE TO RE CONCILE THE SAME SATISFACTORILY BY BRINGING THE RELEVANT FACTS AND F IGURES ON RECORD. AS RIGHTLY CONTENDED BY THE LD. D.R., THIS VITAL ASPEC T, HOWEVER, WAS NOT APPRECIATED BY THE LD. CIT(APPEALS) IN THE RIGHT PE RSPECTIVE AND HE DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THIS ISSUE BY PLACING THE ONUS WRONGLY ON THE ASSESSING OFFICER B Y OBSERVING THAT THE ASSESSING OFFICER SHOULD HAVE OBTAINED THE DETAILS OF FIGURES REPORTED BY PARADEEP PORT TRUST AND FURNISHED THE SAME TO THE A SSESSEE SO AS TO ENABLE THE ASSESSEE TO RECONCILE THE DIFFERENCE. IN OUR OPINION, THE SAID DETAILS OUGHT TO HAVE BEEN OBTAINED BY THE ASSESSEE SO AS TO SUPPORT AND SUBSTANTIATE ITS EXPLANATION THAT THE EXPORT OF IRO N ORE TO THE EXTENT OF 8,000 METRIC TON ACTUALLY PERTAINING TO THE IMMEDIA TELY SUCCEEDING YEAR WAS INCLUDED BY PARADEEP PORT TRUST IN THE EXPORT F IGURE OF THE YEAR UNDER CONSIDERATION AS REPORTED TO THE ASSESSING OF FICER. HAVING REGARD TO ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE, W E SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) GIVIN G RELIEF TO THE ASSESSEE ON THIS ISSUE AND RESTORE THE MATTER TO TH E FILE OF THE ASSESSING OFFICER FOR GIVING THE ASSESSEE ONE MORE OPPORTUNIT Y TO SUPPORT AND SUBSTANTIATE ITS EXPLANATION REGARDING THE DIFFEREN CE OF 8,000 METRIC TON IN THE EXPORT OF IRON ORE BY BRINGING ON RECORD THE RELEVANT DETAILS OF EXPORT AS REPORTED BY PARADEEP PORT TRUST TO THE AS SESSING OFFICER. THE ITA NO. 685/KOL/2018 & C.O. NO. 58/KOL/2018 (IN ITA NO. 685/KOL/2018) ASSESSMENT YEAR: 2008-2009 M/S. NARBHERAM VISHRAM 16 APPEAL OF THE REVENUE IS ACCORDINGLY TREATED AS ALL OWED FOR STATISTICAL PURPOSES. 15. IN THE RESULT, THE APPEAL OF THE REVENUE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES, WHILE THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 21, 2020. SD/- SD/- (SATBEER SINGH GODARA) (P .M. JAGTAP) JUDICIAL MEMBER VICE-PRESIDENT) KOLKATA, THE 21 ST DAY OF FEBRUARY, 2020 COPIES TO : (1) ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4(2), KOLKATA, AAYAKAR BHAWAN POORVA, 5 TH FLOOR, ROOM NO. 506, 110, SHANTI PALLY, KOLKATA-700107 (2) M/S. NARBHERAM VISHRAM, GUA, SINGHBHUM WEST, JHARKHAND-833213 (3) COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKA TA; (4) COMMISSIONER OF INCOME TAX, KOLKATA- , KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.