ACIT, Circle - 5, Kolkata, Kolkata V. M/s. Essel Mining & Industries Ltd., Kolkata

ITA 1928/KOL/2006

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7545 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 20-12-2006
• Court: TRIBUNAL
• Department Lawyers: D R SINDHAL
• Assessee Lawyers: D S DAMLE
• Keywords: Additional evidence
• Section: 143(3); 80HHC

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND , ! . '# . ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE SHR I C. D. RAO, AM] $ $ $ $ / I.T.A NO. 1928/KOL/2006 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2003-04 ASSISTANT COMMISSIONER OF INCOME-TAX VS. M/S. ESSE L MINING & INDUSTRIES LTD. CIRCLE-5, KOLKATA. (PAN:AAACE 6607 L) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) DATE OF HEARING: 09.01.2012 DATE OF PRONOUNCEMENT: 09.01.2012 FOR THE APPELLANT: SHRI D. R. SINDHAL FOR THE RESPONDENT: SHRI D. S. DAMLE . / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-V, KOLKATA IN APPEAL NO.CIT(A)-V/KOL/135/V/R-5/2005-06 DATED 12.09.2006. ASSESSMENT WAS FRAMED BY JCIT, RANGE-5, KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2003-04 VIDE HIS ORDER DATED 20 .01.2006. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE JUDGMENT OF HONBLE APEX COURT IN CIVIL APPEAL NOS. 6813-14 OF 2010 FOR RELEVANT ASSESSMENT YEAR 2003-04, THE ASSESSMENT YEAR UNDER CONSIDERATION, WHEREIN HONBL E APEX COURT HAS DIRECTED THE TRIBUNAL TO DECIDE THE ISSUE WHETHER THE PRODUCT IN QUESTION IS RAW IRON ORE OR SIZED IRON ORE? THE RELEVANT JUDGMENT OF HONBLE SUPREME COURT IN ASSES SEES OWN CASE IS AS UNDER: LEAVE GRANTED. BY CONSENT, THE MATTER IS TAKEN UP FOR HEARING. THE MATTER STANDS REMITTED TO THE TRIBUNAL FOR DECI DING THE FOLLOWING QUESTION: WHETHER THE PRODUCT IN QUESTION IS RAW IRON ORE O R SIZED IRON ORE? THIS QUESTION NEEDS TO BE CONSIDERED BY THE TRIBUNA L AND, ACCORDINGLY, THE MATTER STANDS REMITTED TO THE TRIBUNAL. 2 ITA 1928/K/2006 ESSEL MINING & INDUSTRIES LTD.. A. Y 2003-04 THE CIVIL APPEALS ARE DISPOSED OF ACCORDINGLY. NO ORDER AS TO COSTS. THE LD. COUNSEL FOR THE ASSESSEE SHRI D. S. DAMLE S TATED THAT THE TRIBUNAL HAS TO SEEK REMAND REPORT FROM THE ASSESSING OFFICER WHETHER IN TERMS OF DIRECTION OF HONBLE SUPREME COURT THE PRODUCT IS RAW IRON ORE OR SIZED IRON ORE. THE L D. COUNSEL FOR THE ASSESSEE REFERRED TO PAPER BOOK NO. 2 FILED ON 09.01.2012 AND STATED THA T THESE DOCUMENTS REQUIRE VERIFICATION WHETHER THE ASSESSEES PRODUCE IS RAW IRON ORE OR SIZED IRON ORE. HE STATED THAT NO DOUBT THERE WAS PLEA BEFORE THE ASSESSING OFFICER THAT AS SESSEE IS DEALING IN EXPORT OF SIZED IRON ORE AND NOT RAW IRON ORE. WHEN THIS QUERY WAS PUT TO L D. CIT DR SHRI D. R. SINDHAL, HE FAIRLY STATED THAT CALLING REMAND REPORT FOR THIS PURPOSE FROM THE ASSESSING OFFICER WILL NOT SUFFICE THE MATTER AND HE STATED THAT THE LIMITED ISSUE CAN BE REMITTED BACK TO THE FILE OF ASSESSING OFFICER FOR HIS ADJUDICATION TO FIND OUT WHETHER THE ASSESS EES PRODUCT IS RAW IRON ORE OR SIZED IRON ORE AS DIRECTED BY HONBLE SUPREME COURT. ON FURTH ER QUERY, LD. COUNSEL FOR THE ASSESSEE FAIRLY AGREED THAT IF THE ISSUE IS REMITTED BACK TO THE FILE OF ASSESSING OFFICER FOR VERY LIMITED PURPOSE AND FOR DECIDING ON ISSUE, AS DIRECTED BY H ONBLE SUPREME COURT, HE HAS NO OBJECTION IN SETTING ASIDE. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. AS DIRECTED BY HONBLE SUPREME COURT, WE HAVE TO FI ND OUT WHETHER THE ASSESSEE IS EXPORTED RAW IRON ORE OR SIZED IRON ORE. AS THE ASSESSEE HA S FILED ALL THESE ADDITIONAL EVIDENCES, FOR THE FIRST TIME BEFORE US IN ASSESSEES PAPER BOOK N O. 2 ON 09.01.2012, THE ASSESSEE IS DIRECTED TO FILE THIS EVIDENCE BEFORE ASSESSING OFFICER AND ASS ESSING OFFICER AFTER GOING THROUGH THE ASSESSEES SALE BILLS OR SALE INVOICES WILL VERIFY THE NATURE OF PRODUCT FROM THESE INVOICES AND GIVE A DEFINITE FINDING WHETHER THE ASSESSEES PROD UCT IS RAW IRON ORE OR SIZED IRON ORE AND ACCORDING TO THE FINDINGS, ON THE BASIS OF EVID ENCES, WILL DECIDE THE ISSUE. THE ISSUE BEFORE TRIBUNAL AS RAISED VIDE GROUND NO.1 WAS AS UNDER: 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS FACT BY ALLOWING THE DEDUCTION U/S. 80HHC. ON THE ABOVE PRODUCT, WHETHER THE ASSESSEE IS ENTIT LED FOR DEDUCTION U/S. 80HHC OF THE ACT OR NOT, THIS IS TO BE DECIDED. SINCE THE ISSUE IS WHE THER THE ASSESSEE IS EXPORTING RAW IRON ORE OR SIZED IRON ORE, THE QUESTION OF DEDUCTION U/S. 80HH C WILL BE DECIDED AFTER THE DECISION OF THIS FACT. ACCORDINGLY, THE ASSESSING OFFICER WILL DECI DE THIS ISSUE AFRESH AFTER CONSIDERING THE 3 ITA 1928/K/2006 ESSEL MINING & INDUSTRIES LTD.. A. Y 2003-04 ABOVE DIRECTIONS. THIS ISSUE OF REVENUES APPEAL I S SET ASIDE TO THE FILE OF ASSESSING OFFICER. APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOS ES. 4. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . '# '#'# '# . ! , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( #! #! #! #!) )) ) DATED : 9TH JANUARY, 2012 /0 %12 3 JD.(SR.P.S.) . 4 ,5 6 5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT ACIT, CIRCLE-5, KOLKATA. . 2 ,-*+ / RESPONDENT, M/S. ESSEL MINING & INDUSTRIES LTD., INDUSTRY HOUSE, 18 TH FLOOR, 10, CAMAC STREET, KOLKATA-17. 3 . .% ( )/ THE CIT(A), KOLKATA 4. .% / CIT, KOLKATA 5 . >? ,% / DR, KOLKATA BENCHES, KOLKATA -5 ,/ TRUE COPY, .%@/ BY ORDER, 2 /ASSTT. REGISTRAR .