Barbil Mining & Industries Pvt. Ltd., Keonjhar V. JCIT, Range-1, Sambalpur

ITA 215/CTK/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5330 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 27-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Keywords: Rectification of order
• Section: 143(3); 142(1); 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO. 215 / CTK /20 1 6 ( / ASSESSMENT YEAR : 20 1 1 - 20 1 2 ) BARBIL MINING & INDUS TRIES PVT. LTD, GURUDWARA ROAD, BARBIL, KEONJHAR - 758035 VS. JCIT, RANGE - 1, SAMBALPUR ./ ./ PAN/GIR NO. : A ADCB 4262 D ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : NONE /R EVENUE BY : SHRI D.K.PRADHAN, DR / DATE OF HEARING : 22 / 1 1 /201 7 / DATE OF PRONOUNCEMENT 23 / 11 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH E ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF CIT(A), C UTTACK , IN I.T. APPEAL NO. 379 / 201 4 - 1 5 , DATED 25.01.2016 , PASSED U/S. 143(3) / 250 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 201 1 - 201 2 . 2. THE SOLE SUBSTANTIVE GROUND RAISED BY THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION MADE IN R ESPECT OF DISALLOWANCE U/S.14A OF THE ACT . 3. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE MATTER WAS CALLED FOR HEARING. HOWEVER, AN ADJOURNMENT APPLICATION WAS PLACED ON RECORD BY THE ASSESSEE SEEKING FOR ADJOURNMENT OF HEARING ON THE GROUND THAT THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE IS OUT OF STATION , WHICH IN OUR CONSIDERED, IS NOT A PLAUSIBLE ONE AND, THUS, WE REJECT THE APPLICATION AND PROCEED TO DISPOSE OFF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND THE SUBMISSIONS OF LD. DR. ITA NO. 215 /CTK/201 6 2 4. AS PER THE OFFICE NOTE, THERE IS A DELAY OF 28 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN APPLICATION DATED 16.08.2016 FOR CONDONATION OF DELAYING ALONG WITH AN AFFIDAVIT EXPLAINING THE REASONS FOR DELAY. CONSIDERING THE APPLICAT ION OF ASSESSEE AND LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND LD. DR HAS NO SERIOUS OBJECTION AND WE ALLOW THE APPLICATION AND CONDONE THE DELAY OF 28 DAYS IN FILING THE PRESENT APPEAL AND THE APPEAL IS HEARD ON MERITS AFTER CONSIDERING THE SU BMISSIONS OF LD. DR AND THE MATERIAL FACTS AVAILABLE ON RECORD. 5 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RAISING AND TRADING OF MINERALS, AND FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 201 1 - 201 2 WITH TOTAL INCO ME OF RS. 1,55,66,787/ - IN RESPECT OF SALE OF MINERALS. SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) & 142(1) OF THE ACT WERE DULY SERVED ON THE ASSESSEE . IN THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS CALLED FOR THE VARI OUS DETAILS WHICH WERE SUBMITTED BEFORE THE AO AND THE AO ON PERUSAL OF THE TURNOVER AND THE PERCENTAGE AND NET PROFIT HAS MADE CATEGORICAL FINDINGS THAT THE ASSESSEE HAS NOT SUBMITTED THE PROPER RECEIPTS, AND, THEREFORE, MADE ADDITION OF DIFFERENCE OF RS. 20,87,553/ - AND SIMILARLY THE AO MADE ADDITION U/S.14A APPLYING THE RULE 8D RS.8,72,893/ - AND ASSESSED THE TOTAL INCOME AT RS.1,85,27,230/ - AND PASSED THE ASSESSMENT ORDER ON 28.03.2014 U/S.143(3) OF THE ACT. SUBSEQUENTLY, THE ASSESSEE FILED RECTIFICATION APPLICATION AGAINST THE ORDER U/S.143(3) OF THE ACT. THE AO CONSIDER ED THE APPLICATION OF THE ASSESSEE AND THE OBJECTIONS. FURTHER, THE AO HAVING SATISFIED WITH THE SUBMISSIONS ITA NO. 215 /CTK/201 6 3 ON MISTAKE APPARENT FROM THE RECORD HAS EXCLUDED DISALLOWANCE OF RS.20,8 7 ,553 / - FROM THE COMPUTATION OF INCOME AND ASSESSED THE INCOME AT RS.1,64,39,680/ - AND PASSED THE ORDER U/S.154/143(3) OF THE ACT, DATED 17.06.2014. 6. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT( A ) AND T HE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING LD. DR SUBMITTED THAT THE APPEAL IS NOT MAINTAINABLE AS THE CIT(A) HAS GIVE N A VE RY CATEGORICAL FINDING THAT NO DISCUSSION ON ADDITION WAS MADE IN THE ORDER CHALLENGED U/S.143(3)/154 OF THE ACT AND THE ASSESSEES APPEAL BE DISMISSED. 7. WE HEARD THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL ON RECORD. THE L D. DRS CONTENTION THAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE AS THE ASSESSEE HAS CHALLENGED THE ORDER U/S.143(3)/154 O F THE ACT IN RESPECT OF ADDITION U/S.14A OF THE ACT WHICH WAS DISCUSSED IN THE ORIGINAL ASSESSMENT U/S.143(3) OF THE ACT, DATED 28.3.2014. SUBSEQ UENTLY, ON ASSESSEES RECTIFICATION APPLICATION, THE AO HAVING SATISFIED WITH SUBMISSION HAS EXCLUDED ADDITION OF RS.20,87,553/ - AND SUSTAINED THE ADDITION U/S.14A OF THE ACT OF RS.8,72,893/ - AND PASSED THE ORDER ON 17.06.2014 U/S.154/143(3) OF THE ACT. WE FOUND THE LD. CIT(A) OBSERVED THAT THERE IS NO MENTION OF DISALLOWANCE U/S.14A NOR ANY DISCUSSION IN RESPECT OF ADDITION U/S.14A IN ORDER U/S. 143(3)/154 OF THE ACT . PRIMA FACIE, WE FOUND THAT THE AO HAS DISCUSSED ON THE ADDITION ITA NO. 215 /CTK/201 6 4 U/S.14A OF THE ACT AND APP LYING RULE 8D AND QUANTIFIED THE ADDITION OF RS.8,72,893/ - AND THE SAME WAS SUSTAINED IN RECTIFICATION ORDER. THE ASSESSEE CHOSE TO FILE AN APPEAL AGAINST THE ORDER U/S.143(3)/154 OF THE ACT AND NOT AGAINST THE ORIGINAL ASSESSMENT ORDER U/S.143(3) OF THE A CT. T HE ASSESSEE SHOULD FILED THE APPEAL AGAINST THE ORDER U/S.143(3) OF THE ACT IN RESPECT OF GROUNDS CHALLENGING THE ADDITION U/S.14A OF THE ACT BUT NOT THE RECTIFICATION ORDER U/S.143(3)/154 OF THE ACT. THE PROVISIONS OF SECTION 154 OF THE ACT ARE FOR RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, WE ARE NOT INCLINED TO INTERFERE WITH THE ORDER OF CIT(A) AND UPHOLD THE SAME AND DISMISS THE ASSESSEES APPEAL. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN TH E OPEN COURT ON THIS 23 / 11 / 201 7 . SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 23 / 11 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - BARBIL MINING & INDUSTRIES PVT. LTD, GURUDWARA ROAD, BARBIL, KEONJHAR - 758035 2. / THE RESPONDENT - JCIT, RANGE - 1, SAMBALPUR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTT ACK 6. / GUARD FILE. //TRUE COPY//