M/s P. Balasubba Setty & Son, Hospet V. Pr. CIT, Gulbarga

ITA 417/BANG/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1390 (ITAT-BANGALORE)
• Duration Of Justice: 5 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 15-04-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 10-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: G S PRASHANTH
• Keywords: Opportunity of being heard; Diversion of income; Revised return; Set aside
• Section: 143(3); 201; 13; 37; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO. 417/BANG/2016 ITA NO.172 TO 175 /BANG/20 19 ASSESSMENT YEAR : 2012-13 TO 2015-16 M/S BALASUBBA S ETT E Y & SON, HAMPI ROAD, HOSPET HAMPI-583 201. PAN AACFP 2536 L VS. THE PRINCIPAL COMMISSIONER OF INCOME-TAX, GULBARGA. ACIT, CIRCLE-1, BELLARY. APPELLANT RESPONDENT A SSESSEE BY : SHRI G.S. PRASHANTH, C.A & SHRI. BALRAM R RAO, ADVOCATE. RE VENUE BY : SHRI PRADEEP KUMAR, CIT(DR) DATE OF HEARING : 15 - 04 - 202 1 DATE OF PRONOUNCEMENT : 05 - 0 7 - 202 1 ORDER PER BEENA PILLAI, JUDICIAL MEMBER THE PRESENT APPEALS FILED BY ASSESSEE ARISES O UT OF ORDER PASSED UNDER SECTION 263 OF THE ACT DATED 06/01/2016 BY TH E LD.PR.CIT, GULBARGA, ORDER DATED 09/11/2018 FOR ASSESSMENT YEA R 2012-13, ORDER DATED 31/10/2018 FOR ASSESSMENT YEAR 2013-14 ORDER DATED 20/11/2018 FOR ASSESSMENT YEAR 2014-15 AND ORDER DA TED PAGE 2 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 22/11/2018 FOR ASSESSMENT YEAR 2015-16 PASSED BY TH E LD.CIT(A), KALABURGI. 2. ADMITTEDLY IT HAS BEEN SUBMITTED THAT THERE IS A 4 DAY DELAY IN FILING ALL THESE PRESENT APPEALS BEFORE THIS TRIBUN AL. ASSESSEE VIDE APPLICATION DATED 11/07/2019 FOR CONDONATION OF DEL AY SUPPORTED BY AFFIDAVIT OF SH.P.V.PRAKASHAN THE MANAGING PARTN ER OF ASSESSEE FIRM HAS BEEN FILED. 3. IT HAS BEEN SUBMITTED THAT THE ORDER PASSED UNDE R SECTION 263 WAS RECEIVED BY ASSESSEE ON 29/01/2018 AND THE ORDE RS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION PASSED BY THE LD.CIT(A) WAS RECEIVED BY ASSESSEE ON OR ABOUT 29/11/2018. IT HAS BEEN SUBMITTED THAT THE APPEALS OUGHT TO HAVE BEEN FILED BEFORE THIS TRIBUNAL ON OR BEFORE 26/01/2019. FROM THE AFFIDAVIT IT APP EARS THAT, THE DELAY WAS DUE TO THE PREOCCUPATION OF ASS ESSEES COUNSEL BETWEEN 28/01/2019 AND 29/01/2019 AND THAT, THE APP EALS COULD NOT BE FILED ON OR BEFORE 28/01/2019, THEREBY CAUSI NG A DELAY OF 4 DAYS. 4. WE NOTE THAT 4 DAYS DELAY IN FILING THE PRESENT APPEALS CANNOT BE ATTRIBUTED TO ASSESSEE. IN ORDER TO RENDER SUBST ANTIAL JUSTICE, WE CONDONED THE DELAY OF 4 DAYS IN FILING THE PRESENT APPEALS BEFORE THIS TRIBUNAL. ACCORDINGLY APPLICATION DATED 11/07/2019 FOR CAN DO NATION OF DELAY STANDS ALLOWED. ASSESSMENT YEAR 2012-13 5. THE LD.AR SUBMITTED THAT FOR ASSESSMENT YEAR 201 2-13 ASSESSEE HAS FILED TWO APPEALS BEFORE THIS TRIBUNAL , ONE AGAINST THE PAGE 3 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 ORDER PASSED UNDER SECTION 263 OF THE ACT, AND THE OTHER AGAINST THE LD.CIT(A) DATED 09/01/2018, WHICH IS BEEN PASSE D IN LIEU OF CONSEQUENTIAL ORDER PASSED BY THE LD.AO PURSUANT TO ORDER UNDER SECTION 263 OF THE ACT. 6. IT HAS BEEN SUBMITTED THAT, FOR ASSESSMENT YEAR 2012-13, ASSESSEE WAS ENGAGED IN THE EXTRACTION AND SALE OF MINE OWNED AND HAS FILED ITS RETURN OF INCOME ON 05/09/2012 DECLAR ING TOTAL INCOME OF RS.36,34,61,300/-. SUBSEQUENTLY REVISED RETURN W AS FILED ON 05/03/2013, DECLARING TAXABLE PROFITS FROM BUSINESS OF RS.55,98,59,353/-. THE CASE WAS SELECTED FOR SCRUTI NY AND ASSESSMENT WAS COMPLETED BY THE LD.AO UNDER SECTION 143(3) OF THE ACT ON 28/02/2014 DETERMINING TOTAL INCOME AT RS.59 ,71,86,930/-. LD.PR.CIT ISSUED SHOW CAUSE NOTICE UNDER SECTION 26 3 OF THE ACT ON 25/08/2015, STATING THAT, THE LD.AO HAS NOT APPLIED HIS MIND AND HAS NOT PROPERLY VERIFIED THE DISCREPANCY IN RECORD ING THE SALE TRANSACTION UNDERTAKEN BY ASSESSEE FOR YEAR UNDER C ONSIDERATION. THE PROVISIONS UNDER SECTION 263 OF THE ACT, WAS IN VOKED BY THE LD.PR.CIT AS THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. ASSESSEE IN RESPONSE T O SHOW CAUSE NOTICE FILED REPLIES AND SUBMISSIONS, WHICH WERE RE JECTED BY THE LD.PR.CIT. THE LD.PR.CIT WAS OF THE OPINION THAT, A SSESSING OFFICER HAS NOT DONE ANY ENQUIRY IN RESPECT OF THE ASSESSME NT OF 20% OF SALE PROCEEDS RETAINED BY MONITORING COMMITTEE AND THAT ASSESSMENT ORDER WAS PASSED WITHOUT MAKING PROPER E NQUIRIES AND BASED ON INCORRECT ASSUMPTION OF FACTS OR ON INCORR ECT APPLICATION OF LAW OR NON APPLICATION OF MIND OR BASED ON NO OR INSUFFICIENT PAGE 4 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 MATERIALS. THE LD.PR.CIT SET ASIDE THE FILE TO THE ASSESSING OFFICER WITH A DIRECTION TO PASS FRESH ASSESSMENT ORDER IN ACCORDANCE WITH LAW AND AFTER GIVING NECESSARY OPPORTUNITY OF BEING HEARD TO ASSESSEE. 7. AGAINST THE SAID ORDER PASSED BY THE LD.PR.CIT, ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 8. IN THE MEANTIME THE LD.AO PASSED ORDER GIVING EF FECT TO THE ORDER UNDER SECTION 263 PASSED BY THE LD.PR.CIT DAT ED 06/01/2016. THE LD.AO ACCORDINGLY CALLED UPON ASSES SEE TO FURNISH VARIOUS DETAILS IN RESPECT OF THE EXPENSES CLAIMED BY ASSESSEE BEING 20% OF THE E-AUCTION SALES FOR THE R ELEVANT ASSESSMENT YEAR UNDER CONSIDERATION. THE LD.AO OBSE RVED THAT ASSESSEE DID NOT RECOGNISE 20% OF THE REVENUE RETAI NED BY THE MONITORING COMMITTEE AND THAT THE ASSESSEE HAD ACCO UNTED FOR THE NET OF THE SALE PROCEEDS AS IT WAS UNCERTAIN REGARD ING THE REALISATION OF 20% OF SALE PROCEEDS. 9. THE ASSESSEE ALSO SUBMITTED THAT 10% OF THE SALE PROCEEDS FOR YEAR UNDER CONSIDERATION WAS RECOGNISED IN 2014-15 AND ACCORDINGLY OFFERED TO TAX IN 2014-15, WHICH WAS NO T ACCEPTABLE TO THE LD.AO AS ASSESSEE WAS FOLLOWING MERCANTILE SYST EM OF ACCOUNTING. 10. THE LD.AO ALSO DISALLOWED SUNDRY EXPENSES AND O THER MAINTENANCE EXPENSES AMOUNTING TO RS.3,50,000/- AND DISALLOWANCE OF CSR ACTIVITY EXPENSES AMOUNTING TO RS.14,63,62/- FOR WANT OF DOCUMENTARY EVIDENCES OF HAVING INCURRE D THE SAID EXPENSES. IN RESPECT OF THE CSR EXPENSES BEING DISA LLOWED, THE PAGE 5 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 LD.AO WAS OF THE OPINION THAT THE SAME IS NOT ALLOW ABLE AS EXPENDITURE UNDER SECTION 37 OF THE ACT, WHICH WAS ACCEPTABLE TO THE ASSESSEE AS HAS BEEN RECORDED BY THE LD.AO IN T HE ASSESSMENT ORDER. 11. AGGRIEVED BY THE ADDITIONS MADE, THE ASSESSEE P REFERRED APPEAL BEFORE THE LD.CIT(A). 12. BEFORE LD.CIT(A) ASSESSEE HAS ONLY CHALLENGED T HE DISALLOWANCE TOWARDS SPV EXPENSES. THE LD.CIT(A) UP HELD THE OBSERVATIONS OF LD.AO. 13. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE I S IN APPEAL BEFORE US NOW. 14. AT THE OUTSET, THE LD.AR SUBMITTED THAT, THIS I SSUE STANDS SQUARELY COVERED BY DECISION OF COORDINATE BENCH OF THIS TRIBUNAL IN CASE OF M/S.RAMGAD MINERALS AND MINING LTD., IN ITA NO.1270 - 1271/B/2019 BY ORDER DATED 4/11/2020 . 15. THE LD.CIT(A) THOUGH SUPPORTED THE ORDERS PASSE D BY AUTHORITIES BELOW COULD NOT CONTROVERT THE ABOVE SU BMISSIONS BY THE LD.AR. 16. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOT H SIDES AS WELL LAST THE ORDER RELIED ON BY THE LD.AR PASSED B Y COORDINATE BENCH OF THIS TRIBUNAL IN M/S.RAMGAD MINERALS AND MINING LTD., (SUPRA). 17. WE NOTE THAT THE DISALLOWANCE MADE BY THE LD.AO PERTAINS TO MINING ACTIVITY CARRIED ON BY ASSESSEE FOR YEARS UN DER CONSIDERATION BASED ON THE SPV CONTRIBUTION BY MONITORING COMMITT EE OUT OF THE SALE PROCEEDS. THE LD.AR HAS SUBMITTED THAT THIS IS SUE IS RECURRING PAGE 6 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 IN NATURE AS ASSESSEE HAS TO CONTRIBUTE THE SPV AGA INST EVERY SALE AS PER THE SCHEME APPROVED BY HONBLE SUPREME COURT IN CASE OF SAMAJ PARIVARTANA SAMUDAYA VS STATE OF KARNATAKA REPORTED IN (2013) 8 SCC 209. 18. WE NOTE THAT THIS ISSUE HAS BEEN CONSIDERED IN THE CASE OF M/S.RAMGAD MINERALS AND MINING LTD., (SUPRA) BY COORDINATE BENCH OF THIS TRIBUNAL AS UNDER: 7.8. WE HAVE CONSIDERED RIVAL SUBMISSIONS IN LIGHT OF RECORDS PLACED BEFORE US. 7.8.1. BEFORE DWELLING INTO VARIOUS ISSUES ALLEGED BY ASSESSEE BEFORE US, IT IS NECESSARY TO UNDERSTAND OBSERVATION/ DIRECTIONS OF HONBLE SUPREME COURT IN FOLLOWING DECISIONS ON MINING ACTIVITY; HON'BLE SUPREME COURT BY ORDER DATED 29/7/2011 PASS ED IN GOL VS. OBULAPURAM MINING CO. PVT. LTD., REPORTED IN (2011) 12 SCC 491, SUSPENDED ALL MINING AND TRANSPORTATION ACTIVITIES IN AREA ADMEASURING APPROXIMATELY 10,868 HA, PERTAINING TO DISTRICT OF BELLARY. SUBSEQUENTLY, BY ORDER DATED 26/08/2011 PASSED IN S AMAJ PARIVARTARIA SAMUDAYA VS STATE OF KARNATAKA, REPORTED IN (2013) 8 SCC 209, HON'BLE APEX COURT EXTENDED BAN TO TUMKUR AND CHITRADURGA M INES, BASED UPON A REPORT FILED BY CENTRAL EMPOWERED COMMITTEE (HEREIN AFTER REFERRED TO AS CEC). HON'BLE APEX COURT DIRECTED LD. AMICUS CURIAE TO SUBMIT QUANTITY WHICH COULD BE RELEASED FROM EXISTING STOCK OF 25,0 00,000 TON OF IRON ORE, SUBJECT TO RECLAMATION AND REHABILITATION PLANS BEI NG SUBMITTED. THIS WAS IN PURSUANCE TO PLEA RAISED BY ASSOCIATION OF STEEL INDUSTRY AND OTHER AFFECTED PARTIES. ON 23/09/2011, HON'BLE APEX COURT WAS APPRAISED WIT H CENTRAL EMPOWERED COMMITTEE (HEREINAFTER REFERRED TO AS CEC ) REPORT DATED 01/09/2011, CONTAINING MODALITIES OF SALE OF EXISTI NG STOCK OF IRON ORE THROUGH E-AUCTION, SALE PROCEEDS TO BE DEPOSITED IN NATIONALISED BANK. IT WAS SUBMITTED IN THE REPORT THAT, WHERE THERE IS NO ILLEGAL MINING, 80% OF SALE PROCEEDS TO BE RELEASED AND 20% TO BE RETAINED . MC WAS TO BE CONSTITUTED TO SUPERVISE AND CONTROL E- AUCTION, SI ZE OF LOT, TRANSPORTATION ETC. IT WAS SUBMITTED THEREIN THAT, MC WOULD UTILIS E SALE PROCEEDS FOR PAYMENT OF ROYALTY, TAXES ETC. SUBSEQUENTLY, A PLEA BY KARNATAKA IRON AND STEEL MANUFACTURERS ASSOCIATION WAS RAISED REGARDING SHORTAGE OF SUPPLY OF MINERALS DUE TO SUSPENSION OF MINING ACTIVITY, BEFORE HON'BLE APEX COURT. THE ASSOCIATION ALSO SOUGHT FOR A DIRECTION TO REOPEN CATEGORY 'A' MINES. PAGE 7 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 THEREAFTER, BY ORDER DATED 03/09/2012 HON'BLE APE X COURT IN CASE OF SAMAJ PARIVARTANA SAMUDAYA VS STATE OF KARNATAKA, R EPORTED IN (2013) 8 SCC 219 APPROVED REPORT DATED 29/08/2012 FILED BY C EC. HON'BLE APEX COURT ORDERED FOR REOPENING OF CATEGORY 'A' MINES, AND VACATED ORDER DATED 29/07/2011 PASSED IN CASE OF GOL VS. OBULAPURAM MIN ING CO. PUT. LTD., (SUPRA) AND ORDER DATED 26/08/2011 IN CASE OF SAMAJ PARIVARTANA SAMUDAYA VS STATE OF KARNATAKA (SUPRA). THEREAFTER, BY ORDER DATED 28/09/2012, CEC FILED DETAILED REPORT DATED 03/02/2012, CATEGORISING MINES INTO 'A', 'B' AND 'C ', DEPENDING ON VARIOUS TYPES OF VIOLATIONS BY MINING LESSEE. 7.8.2. REPORT CONSIDERED 63, CATEGORY 'B' MINING LE SSEE THAT INCLUDES ASSESSEE'S MINING LEASE AND SUGGESTED COMPENSATORY PAYMENTS BY LEASEHOLDERS FOR REPAIRING ENVIRONMENTAL DEPREDATIO N BROUGHT BY LEASEHOLDERS TO THE EXTENT OF UNPLANNED ILLEGAL MIN ING DONE IN THEIR RESPECTIVE AREAS. THE REPORT SUGGESTED RECLAMATION AND REHABILITATION PLAN BY EACH LEASEHOLDERS BY CONSTITUTING A SPECIAL PURP OSE VEHICLE BY STATE OF KARNATAKA, TO CARRY OUT HIGHLY ESSENTIAL COMPREHENS IVE ENVIRONMENT PLANS FOR MINING IMPACT ZONE, IN ORDER TO RESTORE ENVIRON MENTAL DAMAGE, CAUSED IN SUCH AREA DUE TO ILLEGAL AND RECKLESS MINING ON A VERY LARGE SCALE, AND TO ENSURE THAT ENVIRONMENT IN SUCH AREAS MAY NOT SUFFE R FROM ANY SUCH TYPE OF ABUSE AND DESTRUCTION IN FUTURE. HON'BLE APEX CO URT OBSERVED IN PARA 5.1 TO 5.4 AS UNDER: '5.1. COMPENSATORY PAYMENT: (A) EACH OF THE LEASEHO LDERS MUST PAY COMPENSATION FOR THE AREAS UNDER ILLEGAL MINING PIT S OUTSIDE THE SANCTIONED AREA, AS FOUND BY THE JOINT TEAM (AND AS FINALLY HE LD BY CEC) AT THE RATE OF RS.5 CRORES PER HECTARE, AND (B) FOR THE AREAS UNDE R ILLEGAL OVERBURDEN DUMPS, ROADS, OFFICES, ETC. OUTSIDE THE SANCTIONED THE LEASE AREA, AS FOUND BY THE JOINT TEAM (AS MIGHT HAVE BEEN FINALLY HELD BY CEC) AT THE RATE OF RS. 1 CRORE PER HECTARE. 5.1.1. IT IS MADE CLEAR THAT THE PAYMENT AT THE RAT ES AFORESAID IS THE MINIMUM PAYMENT AND EACH LEASEHOLDERS MAY BE LIABLE TO PAY ADDITIONAL AMOUNTS ON THE BASIS OF THE FINAL DETERMINATION OF THE NATIONAL LOSS CAUSED BY THE ILLEGAL MINING AND THE ILLEGAL USE OF THE LA ND FOR OVERBURDEN DUMPS, ROADS, OFFICES ETC. EACH LEASEHOLDER, BESIDES MAKIN G PAYMENT AS DIRECTED ABOVE, MUST GIVE AN UNDERTAKING TO CEC FOR PAYMENT OF THE ADDITIONAL AMOUNTS, IF HELD LIABLE ON THE BASIS OF THE FINAL D ETERMINATION. 5.2. GUARANTEE MONEY FOR IMPLEMENTATION OF THE R AN D R PLANNED IN THE RESPECTIVE SANCTIONED LEASE AREAS: CEC SHALL TAKE A N ESTIMATE OF THE EXPENSES REQUIRED FOR THE FULL IMPLEMENTATION OF TH E ART AND ARE PLANNED IN EACH OF THE 63 CATEGORY B MINES AND EACH OF THE LEA SEHOLDERS MUST PAY THE ESTIMATED AMOUNT AS GUARANTEE FOR IMPLEMENTATION OF THE R & R PLANS IN THEIR RESPECTIVE SANCTIONED A LEASE AREA AND IN THE AREAS WHERE THEY CARRIED ON ILLEGAL MINING ACTIVITIES WHICH WERE USE D FOR ILLEGAL OVERBURDEN DUMPS, ROADS, OFFICES ETC BEYOND THE SANCTIONED LEA SE AREA. IN CASE, ANY PAGE 8 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 LEASEHOLDER DEFAULTS IN IMPLEMENTATION OF THE R&R P LAN, IT WILL BE OPEN TO CEC IS TO CARRY OUT THE R&R PLAN FOR THAT LEASEHOLD TO SOME OTHER PROPER AGENCY FROM THE GUARANTEE MONEY DEPOSITED BY THE LE ASEHOLDER. HOWEVER, ON THE FULL IMPLEMENTATION OF THE R&R PLAN TO THE C OMPLETE SATISFACTION OF CEC AND SUBJECT TO THE APPROVAL OF THE COURT, THE G UARANTEE MONEY WOULD BE REFUNDABLE TO THE LEASEHOLDER. 5.3 IN ADDITION TO THE ABOVE, EACH LEASEHOLDER MUST PAY A SUM EQUIVALENT TO 15% OF SALE PROCEEDS OF ITS IRON OVERSOLD THROUGH T HE MONITORING COMMITTEE AS PER THE EARLIER ORDERS OF THIS COURT. IN THIS RE GARD, IT MAY BE STATED THAT THOUGH THE AMICUS SUGGESTS THE PAYMENT AT 10% OF TH E SALE PROCEEDS, HAVING REGARD TO THE OVERALL FACTS AND CIRCUMSTANCE S OF THE CASE, WE HAVE ENHANCED THIS PAYMENT IS TO 15% OF SALE PROCEEDS. 5.3.1. HERE IT NEEDS TO BE CLARIFIED THAT CEC/ MONI TORING COMMITTEE IS HOLDING THE SALE PROCEEDS OF THE IRON ORES OF THE L EASEHOLDERS, INCLUDING THE 63 LEASEHOLD BEING THE SUBJECT OF THIS ORDER. IN CA SE, THE MONEY HELD BY CEC/ MONITORING COMMITTEE ON THE ACCOUNT OF ANY LEA SEHOLDER IS SUFFICIENT TO COVER THE PAYMENTS UNDER THE AFORESAID 3 HEADS, THE LEASE HOLDER MAY, IN WRITING, AUTHORIZE CEC TO DEDUCT FROM THE SALE P ROCEEDS ON ITS ACCOUNT THE AMOUNTS UNDER THE AFORESAID 3 HEADS AND AN UNDE RTAKING TO MAKE PAYMENT OF ANY ADDITIONAL AMOUNT AS COMPENSATORY PA YMENT. ON SUBMISSION OF SUCH AUTHORISATION AND UNDERTAKING, C EC SHALL RETAIN THE AMOUNTS COVERING THE AFORESAID 3 HEADS AND PAY TO T HE LEASEHOLDER CONCERNED THE BALANCE AMOUNT, IF ANY. IT IS EXPECTE D THAT THE BALANCE AMOUNT, AFTER MAKING THE ADJUSTMENT AS INDICATED HE RE, WOULD BE PAID TO THE LEASEHOLDER CONCERNED WITHIN ONE MONTH FROM THE DATE OF SUBMISSION OF AUTHORISATION AND THE UNDERTAKING. 5.3.2. IN CASE OF ANY LEASEHOLDER, IF THE MONEY HEL D ON HIS ACCOUNT IS NOT SUFFICIENT TO COVER THE AFORESAID 3 HEADS, HE MUST PAY THE DEFICIT WITHIN 2 MONTHS FR OM TODAY. 5.4. THE R&R PLANS FOR THE AFORESAID 63 CATEGORY B MINES MAY BE PREPARED AS EARLY AS POSSIBLE, AS DIRECTED BY ORDERS OF THIS COURT DATED 1310412012, 2010412012 AND 0410512012, AND IN CASE WHERE THE R & R PLAN IS ALREADY PREPARED AND READY, THE LEASEHOLDER MAY TAK E STEPS FOR IS COMPREHENSIVE IMPLEMENTATION, BOTH WITHIN AND OUTSI DE THE SANCTIONED LEASE AREA, WITHOUT ANY DELAY.' 7.8.3. IN AFORESAID PARAS, HON'BLE APEX COURT REFER S TO ORDERS DATED 1310412012, 2010412012 AND 0410512012 PASSED IN CAS E OF STATE OF AP VS OBULAPURAM MINING CO. PVT. LTD., REPORTED IN (20 13) 8 SCC 213, (2013) 8 SCC 216 AND (2013) 8 SCC 217 RESPECTIVELY. 7.8.4. FINALLY, HON'BLE APEX COURT, IN ORDER DATED 18/04/2013 PASSED IN CASE OF SAMAJPARIVARTANA SAMUDAYA VS STATE OF KARNA TAKA, REPORTED IN (2013) 8 SCC 154, DISPOSED OF THE WRIT PETITION. VA RIOUS ISSUES WERE RAISED BEFORE HON'BLE APEX COURT CHALLENGING CREDIBILITY O F CEC. HON'BLE APEX COURT, OBSERVED AS UNDER: PAGE 9 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 '26. IN THE CIRCUMSTANCES ENUMERATED ABOVE, QUESTIO NS CONCERNING THE CREDIBILITY OF CEC ARE ABSOLUTELY UNFOUNDED, PARTIC ULARLY IN THE ABSENCE OF ANY MATERIALS TO SUBSTANTIATE THE APPREHENSIONS, IF NOT ALLEGATIONS THAT HAVE BEEN LEVELLED. THE SAID BODY HAS BEEN PERFORMI NG SUCH TASKS AND HAS BEEN ASSIGNED BY THIS COURT BY THE ORDERS PASSED FR OM TIME TO TIME. THE DIRECTIONS ON THE BASIS OF WHICH CEC HAS PROCEEDED AND HAD SUBMITTED ITS REPORTS ARE WITHIN THE FRAMEWORK OF THE TERMS OF RE FERENCE OF CEC AS DETERMINED BY THIS COURT BY ORDER DATED 14/12/2007. NEEDLESS TO SAY, ACCEPTANCE OF THE RECOMMENDATIONS MADE BY CEC ON TH E BASIS OF WHICH ORDERS OF THE COURT ARE FORMULATED IS UPON THE SATI SFACTION OF THE COURT. WE, THEREFORE, CLOSE THE ISSUE BY HOLDING THE CONTENTIO NS MADE TO BE WHOLLY UNTENABLE.' 7.8.5. IN AFORESTATED PARA, HON'BLE APEX COURT REFE RS TO ORDER DATED 1411212016 PASSED IN CASE OF TN GODAVARMAN THIRMULP AD VS UNION OF INDIA REPORTED IN (2013) 8 SCC 204. HON'BLE APEX CO URT DEALT WITH ACCEPTABILITY OF RECOMMENDATIONS OF CEC WITH REGARD TO;- 1. CATEGORIZATION; 2. RECLAMATION AND REHABILITATION (R&R) PLANS; 3. REOPENING OF CATEGORIES 'A' AND 'B' MINES, SUBJE CT TO CONDITIONS 4. CLOSURE/ REOPENING OF CATEGORY 'C' MINES ; AND 5. FUTURE COURSE OF ACTION IN RESPECT OF CATEGORY ' C' MINES, IF CLOSURE THEREOF IS TO BE ORDERED BY THE COURT. 7.8.6. HON'BLE APEX COURT IN PARA 51 OF ITS ORDER, OBSERVED THAT, IA NOS. 74 AND 4 OF 2012 FILE D BY FEDERATION OF INDIAN MINERAL INDUSTRIES, A BODY, THAT CLAIMED MEMBERSHIP OF VAST NUMBER OF LESSEES INVOLVED IN PROCEEDINGS, UNEQUIVOCALLY ACCE PTED FINDINGS OF SURVEY CONDUCTED BY JOINT TEAM AND RECOMMENDATIONS OF CEC, INSOFAR AS CATEGORISATION OF LEASE, AND ACTIONS SUGGESTED FOR REOPENING OF CATEGORIES WAND 'B' MINES, ALONG WITH OTHER PRE-CONDITIONS STI PULATED, INCLUDING, PREPARATION OF R&R PLANS. HON'BLE APEX COURT NOTED THAT, ONLY CAVEAT WAS IN REGARD TO CATEGORY 'C' MINES. 7.8.7. HON'BLE APEX COURT CATEGORICALLY EXPRESSED I TS OPINION IN RESPECT OF CATEGORY 'C' IN PARA 55 AS UNDER: '55. ONCE THE RESULT OF THE SURVEY UNDERTAKEN AND T HE BOUNDARIES OF THE LEASES DETERMINED BY THE JOINT TEAM HAS BEEN ACCEPT ED BY THE COURT AND THE BASIS OF CATEGORISATION OF THE MIND HAS BEEN FOUND TO BE RATIONAL AND CONSTITUTIONALLY PERMISSIBLE IT WILL BE DIFFICULT F OR THIS COURT TO VISUALISE AS TO HOW THE CATEGORY 'C' MINES CAN BE ALLOWED TO REOPEN . THERE IS NO ROOM FOR COMPASSION FERVENT PLEAS, FOR CLEMENCY CANNOT HAVE EVEN A PERSUASIVE VALUE. AS AGAINST THE INDIVIDUAL INTEREST OF THE 49 CATEGORIES SEE LEASEHOLDERS, PUBLIC INTEREST AT LARGE WOULD REQUIR E THE COURT TO LEAN IN FAVOUR OF DEMONSTRATIVE IN THE EFFICACY AND EFFECTI VENESS OF A LONG ARM OF THE LAW. WE, THEREFORE, ORDER FOR THE COMPLETE CLOS URE OF THE CATEGORY 'C' MINES AND FOR NECESSARY FOLLOW UP ACTION IN TERMS O F THE RECOMMENDATIONS OF CEC IN THIS REGARD, DETAILS OF WHICH HAVE ALREAD Y BEEN EXTRACTED IN AN EARLIER PART OF THIS ORDER.' PAGE 10 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 7.8.8. IN THE PRESENT CASE, THE ASSESSEE HOLDS LEAS E UNDER CATEGORY 'B'. HON'BLE APEX COURT IN PARAGRAPH 5.1 TO 5.4(REPRODUC ED HEREINABOVE), CONSIDERS MODALITIES OF DISBURSEMENT OF SALE PROCEE DS UNDER CATEGORY 'B', AS UNDER: OUT OF 20% OF SALE PROCEEDS RETAINED BY M C FOR CATEGORY 'B' LEASE HOLDERS, HON'BLE APEX COURT APPROVED; 15% TO BE CONTRIBUTED TO SPV, WHEREIN; (A) MINING LEASES DUE TO ILLEGAL MINING BY WAY OF- (I) MINING PITS OUTSIDE THE SANCTIONED LEASE AREAS HAVE BEEN FOUND TO BE UP TO 10% OF THE LEASE AREAS (CATEGORY 'A'), AND/OR (II) OVERBURDEN/ WASTE DUMPS OUTSIDE SANCTIONED LEA SE AREAS HAVE BEEN FOUND TO BE UP TO 15% OF THE LEASE AREAS (CATEGORY 'B'), AND; (B) LEASES FALLING ON INTERSTATE BOUNDARY BETWEEN K ARNATAKA AND ANDHRA PRADESH, AND FOR WHICH, SURVEY SKETCHES HAVE NOT BE EN FINALIZED, WOULD BE ASSIGNED IN CATEGORY 'B'. ESTIMATED PAYMENT TOWARDS R&R PLAN IN THE RESPECT IVE SANCTIONED LEASE AREAS AND IN THE AREAS WHERE ILLEGAL MINING ACTIVIT IES WERE CARRIED OUT OR WHICH WERE USED FOR ILLEGAL OVERBURDEN DUMPS, ROADS , OFFICES ETC BEYOND THE SANCTIONED LEASE DEED ALONG WITH GUARANTEE MONE Y FOR IMPLEMENTATION OF R&R PLAN. COMPENSATION TO BE BORNE BY LESSEE FOR CARRYING O UT ILLEGAL MINING OUTSIDE SANCTIONED LEASE AREA, AT THE RATE OF RS.5 CRORE PE R HECTARE OF LAND FOUND BY JOINT TEAM TO BE UNDER ILLEGAL MINING PIT; AND, COMPENSATION FOR ILLEGAL MINING BY WAY OF OVERBUR DEN DUMPS ROAD, OFFICE ETC., OUTSIDE SANCTIONED LEASE AREA AT THE RATE OF RS.1 CRORE PER HECTARE OF LAND FOUND TO BE UNDER ILLEGAL OVERBURDEN DUMPS ETC ., HON'BLE APEX COURT DIRECTED BALANCE AMOUNT, IF ANY, TO BE REIMBURSED TO RESPECTIVE LESSEE. 7.8.9. IN PRESENT APPEALS, ONLY ISSUE RAISED FOR OU R CONSIDERATION IS IN RESPECT OF 15% CONTRIBUTION MADE TO SPV FOR ASSESSM ENT YEAR 2013-14 AND 2014-15; AND ISSUE IN RESPECT OF R&R EXPENSES INCUR RED DURING ASSESSMENT YEAR 2013 - 14. FIRST OF ALL, WE SUMMARI SE OBJECTIONS OF LD.AO AS IN RESPECT OF SPV EXPENSES AS UNDER:- (A) THIS IS ONE OF THE OBJECTIONS OF THE AO THAT TH E SPV EXPENSES IS NOT ALLOWABLE BECAUSE IT IS NOT COMPENSATION BUT IT IS PENAL IN NATURE FOR CONTRAVENTION OF LAW AS OBSERVED BY HIM IN PARA 4.3 OF THE ASSESSMENT ORDER FOR AY:2013-14. (B) SECOND OBJECTION OF THE LD.AO IS CONTAINED IN P ARA 4.9 OF THE ASSESSMENT ORDER FOR AY:2013-14 AND AS PER THE SAME, THIS IS T HE OBJECTION OF LD.AO THAT THE SAID SPV IS NOTHING BUT CSR EXPENSES ONLY AND THEREFORE NOT ALLOWABLE. (C) THIRD OBJECTION OF LD.AO IS ALSO CONTAINED IN P ARA 4.9 OF THE ASSESSMENT ORDER FOR AY:2013-14 AND AS PER THE SAME, THIS IS T HE OBJECTION OF THE LD.AO THAT THE SAID SPV IS NOT ALLOWABLE U/S 37 (1) AS IT WAS NOT INCURRED BY THE ASSESSEE WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. PAGE 11 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 (D) IN PARA 4.8 OF THE ASSESSMENT ORDER FOR AY:2013 -14, LD.AO IS STATING THIS THAT SPV RATE IS 10% IN CATEGORY 'A' MINES BUT 15% IN CATEGORY 'B' MINES AND THIS EXTRA 5% IN CATEGORY 'B' MINES IS FO R VARIOUS VIOLATIONS AND ILLEGAL MINING AND EVEN AFTER THIS OBSERVATION, HE FINALLY HELD IN THE SAME PARA THAT WHOLE SPV EXPENSES OF 15% IS NOT ALLOWABL E. 7.8.10. LD.AO OBSERVED THAT, THESE SPV WERE DEDUCTE D PURSUANT TO DIRECTIONS OF HON'BLE SUPREME COURT (SUPRA) BY ORDE R DATED 18/04/2013, WHEREIN, IT WAS DIRECTED THAT, SUM SO PAID TOWARDS SPV CHARGES SHOULD BE EXHAUSTIVELY AND EXCLUSIVELY USED TO UNDERTAKE SOCI O ECONOMIC AND INFRASTRUCTURE DEVELOPMENT, AFFORESTATION, SOIL AND BIODIVERSITY CONSERVATION AND FOR ENSURING INCLUSIVE GROWTH OF THE AREA SURRO UNDING MINING LEASES. 7.8.11. LD.AO FURTHER OBSERVED THAT THESE PAYMENTS ARE NOTHING BUT APPROPRIATION OF PROFITS EARNED BY ASSESSEE THAT CA NNOT BE SAID TO HAVE INCURRED FOR PURPOSE OF BUSINESS OR EARNING PROFITS . ACCORDINGLY, ENTIRE AMOUNT ADJUSTED TOWARDS SPV WAS DISALLOWED BY LD.AO . LD.AO WAS OF OPINION THAT ENTIRE SALE PROCEEDS AS PER E AUCTION BID SHEETS/INVOICES WERE TO BE ASSESSED AS TRADING RECEIPTS. THE AMOUNT RETA INED BY CEC/MONITORING COMMITTEE AS PER DIRECTIONS OF HON'B LE SUPREME COURT, ON BEHALF OF ASSESSEE FOR SPV PURPOSES, WAS ON ACCOUNT OF DAMAGES AND LOSS CAUSED TO ENVIRONMENT DUE TO CONTRAVENTION OF LAW, AND THEREFORE, CANNOT BE ALLOWED AS DEDUCTION OUT OF SALE PROCEEDS, EVEN AFTER ACCRUAL OF SUCH LIABILITY. LD.AO WAS OF OPINION THAT, EVEN IN CATEG ORY 'A' MINES, THERE WAS MARGINAL ILLEGALITY FOUND BY CEC, BECAUSE OF WHICH 10% OF CONTRIBUTION WAS ATTRIBUTED OUT OF SALE PROCEEDS TO THE SPV. 7.8.12. ON CAREFUL READING OF DECISION OF HON'BLE SUPREME COURT DATED 18/04/2013, IT IS CLEAR THAT 15% CONTRIBUTION TO SPV ACCOUNT WAS GUARANTEE PAYMENT F OR IMPLEMENTING OF R & R PLAN, WHICH WOULD BE DEDUCTED FROM SALE PROCEED S. THIS WAS ONE OF THE CONDITIONS FOR RESUMING MINING OPERATIONS UNDER CATEGORY 'B'. WE REFER TO AND RELY ON OBSERVATIONS BY HON'BLE SUP REME COURT IN CASE OF CIT VS SITALDAS TIRATHDAS REPORTED IN (1961) 41 ITR 367. HON'BLE SUPREME COURT LAYING DOWN FOLLOWING PRINCIPAL REFERRED TO V ARIOUS RULINGS THAT ILLUSTRATED ASPECTS OF DIVERSION OF INCOME BY OVERR IDING TITLE. 'THESE ARE THE CASES WHICH HAVE CONSIDERED THE PROB LEM FROM VARIOUS ANGLES. SOME OF THEM APPEAR TO HAVE APPLIED THE PRI NCIPLE CORRECTLY AND SOME, NOT. BUT WE DO NOT PROPOSE TO EXAMINE THE COR RECTNESS OF THE DECISIONS IN THE LIGHT OF THE FACTS IN THEM. IN OUR OPINION, THE TRUE TEST IS WHETHER THE AMOUNT SOUGHT TO BE DEDUCTED, IN TRUTH, NEVER REACHED THE ASSESSEE AS ITS INCOME. OBLIGATIONS, NO DOUBT, THER E ARE IN EVERY CASE, BUT IT IS THE NATURE OF THE OBLIGATION WHICH IS THE DECISI VE FACT. THERE IS A DIFFERENCE BETWEEN AN AMOUNT WHICH A PERSON IS OBLI GED TO PAY OUT OF HIS INCOME AND AN AMOUNT WHICH BY THE NATURE OF THE OBL IGATION CANNOT BE SAID TO BE A PART OF THE INCOME OF THE ASSESSEE. WHEREBY THE OBLIGATION INCOME IS DIVERTED BEFORE IT REACHES THE ASSESSEE, IT IS DEDU CTIBLE BUT WHERE THE INCOME IS REQUIRED TO BE APPLIED TO DISCHARGE AN OB LIGATION AFTER SUCH INCOME REACHES THE ASSESSEE THE SAME CONSEQUENCE IN LAW DOES NOT FOLLOW. PAGE 12 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 IT IS THE FIRST KIND OF PAYMENT WHICH CAN TRULY BE EXCUSED AND NOT THE SECOND. THE SECOND PAYMENT IS MERELY AN OBLIGATION TO PAY ANOTHER PORTION OF ONE'S OWN INCOME WHICH HAS BEEN RECEIVED AND ESS ENCE APPLIED. THE FIRST IS A CASE IN WHICH THE INCOME NEVER REACHES T HE ASSESSEE, WHO, EVEN IF HE WERE TO COLLECT IT, DOES SO, NOT AS PART OF HIS INCOME BUT FOR AND ON BEHALF OF THE PERSON TO WHOM IT WAS PCUIABLE.' EMPHASIS SUPPLIED 7.8.13. IN THE PRESENT CASE, WE NOTE THAT 15% OF SA LE PROCEEDS WAS PAYABLE TO SPV ACCOUNT AFTER IT ACCRUED TO ASSESSEE AND THE FACT THAT, ASSESSEE WAS OBLIGED TO PART WITH SUCH PORTION OF INCOME, BY VIR TUE OF DIRECTIONS OF HON'BLE SUPREME COURT, AS A PRECONDITION TO RESUME MINING O PERATIONS UNDER CATEGORY 'B'. AT THIS JUNCTURE, WE ALSO EMPHASISE T HAT, BUT FOR THE INTERVENTION BY HON'BLE SUPREME COURT, ASSESSEE WOU LD NOT HAVE CONTRIBUTED 15% TO SPV ACCOUNT FOR IMPLEMENTATION O F RECLAMATION AND REHABILITATION SCHEME ON ITS OWN, AS THERE WAS NO S TATUTORY REQUIREMENT TO DO SO UNDER RELEVANT STATUTES THAT REGULATE MINING ACTIVITIES. 7.8.14. HON'BLE SUPREME COURT HAS BEEN VERY CLEAR R EGARDING THE TYPES OF PAYMENTS THAT NEEDS TO BE RECOVERED FROM LESSEE'S U NDER CATEGORY 'B', FROM THE SALE PROCEEDS AS WELL AS OTHERWISE. ALL THE PAY MENTS FORM PART OF R&R PLAN FOR RECOUPING AND REHABILITATING THE ENVIRONME NT. CERTAIN PAYMENTS ARE ONETIME PAYMENT AND SOME OTHERS ARE RECURRING D EPENDING UPON THE SALE OF IRON ORE SOLD IN THE NAME OF EACH LICENSEE OR DEPENDING ON THE NEED FOR REHABILITATION. 7.8.15. IN OUR VIEW, CONTRIBUTING 15% TO SPV ACCOUN T ON ACCOUNT OF CATEGORY 'B', WOULD BE APPLICATION OF INCOME, AND THEREFORE, SHOULD BE CONSIDERED AS EXPENDITURE INCURRED FOR CARRYING OUT ITS BUSINESS ACTIVITY. THIS WE HOLD SO, FOR THE REASON THAT, CONTRIBUTIONS DETERMINED BY HO N'BLE SUPREME COURT ARE IN THE NATURE OF GUARANTEE PAYMENT NECESSARY FOR RE SUMING MINING ACTIVITY. WE ALSO NOTE THAT, ALLEGED SUM IN THESE GROUNDS ARE FOR IMPLEMENTATION OF R&R PLANS IN RESPECTIVE SANCTIONED LEASE AREAS HELD BY ASSESSEE, WHERE ILLEGAL MINING ACTIVITIES OR WHICH WERE USED FOR IL LEGAL OVERBURDEN DUMPS, ROADS, OFFICES ETC., BEYOND SANCTIONED LEASE AREA W ERE CARRIED OUT. HERE, WE ALSO NOTE THAT, HORI'BLE SUPREME COURT DIRECTED CEC TO REFUND ANY LEFTOVER GUARANTEE MONEY, AFTER COMPLETION OF IMPLEMENTATION OF R& R PLAN, SUBJECT TO SATISFACTION OF CEC AND APPROVAL BY HORI'BLE SUP REME COURT. FOR THIS PECULIAR REASON, AMOUNT SO CONTRIBUTED TOWARDS SPV BEING 15% OF SALE PROCEEDS, UNDER CATEGORY B, CANNOT BE TREATED AS PE NAL IN NATURE. WE, THEREFORE, REJECT OBSERVATIONS OF AUTHORITIES BELOW THAT, SUCH SUM HAVING CONTRIBUTED BY ASSESSEE FALL WITHIN AMBIT OF EXPLAN ATION 1 TO SECTION 37 (1) OF THE ACT. 7.8.16. THE DECISIONS RELIED UPON BY LD. CIT (A) HA S ALSO BEEN PERUSED BY US. WE NOTE THAT THOSE DECISIONS DEAL WITH EXPENSES WHICH ARE IN THE NATURE OF PENALTY. IN THE PRESENT SITUATION, CONTRI BUTION TOWARDS SPV IS A REQUIREMENT TO BE INCURRED TO CONTINUE ITS BUSINESS ACTIVITIES. IN OUR VIEW, THESE PAYMENTS IN PRESENT CASE DO NOT FALL WITHIN T HE CATEGORY OF PENALTY. PAGE 13 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 HORI'BLE SUPREME COURT HAS QUANTIFIED RATE FOR THE MASS TORT, THAT HAS OCCASIONED DUE TO ILLEGALITIES COMMITTED IN THE OPE RATION OF MINES SEPARATELY. WE ALSO NOTE THAT ASSESSEE HAS SUO MOTO DISALLOWED THE PAYMENTS THAT FALL WITHIN THE CATEGORY OF PENALTY W HICH HAS BEEN COMPUTED IN ACCORDANCE WITH DIRECTIONS OF HON'BLE SUPREME CO URT (BEING RS.5 CRORE PER HECTARE FOR AREA AS UNDER ILLEGAL MINING PITS O UTSIDE SANCTIONED AREAS AND RS. 1 CRORE PER HECTARE FOR AREA UNDER ILLEGAL OVERBURDEN DUMPS, ROADS, OFFICES EXCEPTION OUTSIDE THE SANCTIONED LEASE AREA ). BASED ON ABOVE DISCUSSIONS AND ANALYSIS, WE ARE OF OPINION THAT CONTRIBUTION TO SPV BEING 15% OF SALE PROCEEDS, UND ER CATEGORY B, IS AN ALLOWABLE EXPENDITURE FOR YEAR UNDER CONSIDERATION. 19. AT THIS JUNCTURE, WE ALSO NOTE THAT ASSESSEE HA S CONSIDERED THE 20%/10% AS THE CASE MAY BE IN ASSESSMENT YEAR 2014- 15 WHICH IS NOT IN ACCORDANCE WITH THE MATCHING PRINCIPLE IS TO BE FOLLOWED IN MERCANTILE SYSTEM OF ACCOUNTING. ADMITTEDLY, ASSESS EE FOLLOWS MERCANTILE SYSTEM OF ACCOUNTING AND THEREFORE THE E NTIRE SALE PROCEEDS NEEDS TO BE ACCOUNTED FOR THE YEAR UNDER C ONSIDERATION OUT OF WHICH THE EXPENDITURE HAS TO BE CLAIMED IN R ESPECT OF THE AMOUNT RETAINED BY MONITORING COMMITTEE. 20. IN SUPPORT OF THIS WE PLACE RELIANCE ON DECISIO N BY COORDINATE BENCH OF THIS TRIBUNAL IN CASE OF VEERBHADRAPPA SANGAPPA VS.ACIT IN ITA NO.1054/BANG/2014 BY ORDER DATED 08/12/2020. THIS TRIBUNAL IN RESPECT OF THIS ISSUE HAS OBSERVED AS UNDER: 21. THE LD.AR HAS MENTIONED THAT HONBLE SUPREME COURT HAS SUBSEQUENTLY REDUCED THE SPV CONTRIBUTION TO 10% AS ASSESSEE HOLDS A CATEGORY MINING LEASE BY VIRTUE OF ORDER DATED 28/03/2011. ANY REIMBURSEMENTS MADE TO ASSESSEE IN VIEW OF THE SAME SHALL BE CONSIDERED IN THE RELEVANT YEAR IN WH ICH SUCH PAYMENT HAVE BEEN RECEIVED IN ACCORDANCE WITH LAW. ASSESSEE IS PAGE 14 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 DIRECTED TO PLACE ON RECORD RELEVANT DETAILS AND PA YMENT SCHEDULES ISSUED BY THE MONITORING COMMITTEE IN SUPPORT. ACCORDINGLY, GROUND NO.2-7 RAISED BY ASSESSEE IN AS SESSMENT YEAR 2012-13 IN ITA NO.172/B/2019 STANDS ALLOWED. 22. WE NOTE THAT GROUND 8 RAISED BY ASSESSEE DOES NOT ARISE OUT OF THE ORDER PASSED BY THE LD.CIT(A) AND ACCORDINGL Y THE SAME IS DISMISSED. 23. AS WE HAVE CONSIDERED THE ISSUES RAISED ON MERI TS, WE DO NOT FIND ANY NEED TO ADJUDICATE THE APPEAL FILED BY ASS ESSEE AGAINST THE ORDER PASSED UNDER SECTION 263 OF THE ACT, AS IT BE COMES ACADEMIC IN NATURE. ASSESSMENT YEAR 2013-14: 24. WE NOTE THAT IDENTICAL ISSUE HAS BEEN RAISED BY ASSESSEE FOR ASSESSMENT YEAR 2012-13 BEING GROUNDS 2-6,8 PERTAINING TO THE 20% CONTRIBUTION OF SALE PROCEEDS RETAINED BY MONIT ORING COMMITTEE TOWARDS SPV CHARGES CLAIMED AS EXPENDITUR E. AS THE FACTS FOR THESE ISSUES ARE IDENTICAL WITH THAT CONS IDERED BY US FOR ASSESSMENT YEAR 2012-13, THE OBSERVATION HEREINABOV E ARE APPLIED MUTATIS MUTANDIS. WE THUS HOLD THAT THE 20%/10% CON TRIBUTION TO SPV AS THE CASE MAY BE, OUT OF THE SALE PROCEEDS IS AN ALLOWABLE EXPENDITURE FOR YEAR UNDER CONSIDERATION. ACCORDINGLY GROUND 2-6, 8 RAISED BY ASSESSEE STANDS ALLOWED. 25. WE NOTE THAT GROUND 7 RAISED BY ASSESSEE DOES NOT ARISE OUT OF THE ORDER PASSED BY THE LD.CIT(A) AND ACCORDINGL Y THE SAME IS DISMISSED. PAGE 15 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 26. NOTHING HAS BEEN ARGUED IN RESPECT OF GROUND NO . 9 RAISED FOR YEAR UNDER CONSIDERATION AND THE SAME IS DISMISSED. 27. GROUND NO. 10 AND 11 ARE GENERAL IN NATURE AND THEREFORE DO NOT REQUIRE ANY ADJUDICATION. ASSESSMENT YEAR 2014-15 28. WE NOTE THAT IDENTICAL ISSUE HAS BEEN RAISED BY ASSESSEE FOR ASSESSMENT YEAR 2012-13 BEING GROUNDS 2-6 PERTAININ G TO THE 20% CONTRIBUTION OF SALE PROCEEDS RETAINED BY MONITORIN G COMMITTEE TOWARDS SPV CHARGES CLAIMED AS EXPENDITURE. AS THE FACTS FOR THESE ISSUES ARE IDENTICAL WITH THAT CONSIDERED BY US FOR ASSESSMENT YEAR 2012-13, THE OBSERVATION HEREINABOVE ARE APPLIED MU TATIS MUTANDIS. WE THUS HOLD THAT THE 20%/10% CONTRIBUTIO N TO SPV AS THE CASE MAY BE, OUT OF THE SALE PROCEEDS IS AN ALL OWABLE EXPENDITURE FOR YEAR UNDER CONSIDERATION. ACCORDINGLY GROUND 2-6 RAISED BY ASSESSEE STANDS AL LOWED. 29. THE LD.AR SUBMITTED THAT ASSESSEE DO NOT WISH T O PRESS GROUND 7 AND ACCORDINGLY THE SAME IS DISMISSED. 30. NOTHING HAS BEEN ARGUED IN RESPECT OF GROUND NO.8 RAISED FOR YEAR UNDER CONSIDERATION AND THE SAME IS DISMISSED. 31. GROUND NO.9 AND 10 ARE GENERAL IN NATURE AND THEREFORE DO NOT REQUIRE ANY ADJUDICATION. ASSESSMENT YEAR 2015-16 32. WE NOTE THAT IDENTICAL ISSUE HAS BEEN RAISED BY ASSESSEE FOR ASSESSMENT YEAR 2012-13 BEING GROUNDS 2-5 PERTAINING TO THE 20% CONTRIBUTION OF SALE PROCEEDS RETAINED BY MONITORIN G COMMITTEE TOWARDS SPV CHARGES CLAIMED AS EXPENDITURE. AS THE FACTS FOR THESE PAGE 16 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 ISSUES ARE IDENTICAL WITH THAT CONSIDERED BY US FOR ASSESSMENT YEAR 2012-13, THE OBSERVATION HEREINABOVE ARE APPLIED MU TATIS MUTANDIS. WE THUS HOLD THAT THE 20%/10% CONTRIBUTIO N TO SPV AS THE CASE MAY BE, OUT OF THE SALE PROCEEDS IS AN ALL OWABLE EXPENDITURE FOR YEAR UNDER CONSIDERATION. ACCORDINGLY GROUND 2-5 RAISED BY ASSESSEE STANDS AL LOWED. 33. THE LD.AR SUBMITTED THAT ASSESSEE DO NOT WISH T O PRESS GROUND 6-7, AND ACCORDINGLY THE SAME IS DISMISSED. 34. GROUND NO.9 IS GENERAL IN NATURE AND THEREFORE DO NOT REQUIRE ANY ADJUDICATION. IN THE RESULT APPEAL FILED BY ASSESSEE FOR ASSESSME NT YEARS UNDER CONSIDERATION STANDS PARTLY ALLOWED AS INDICA TED HEREINABOVE. ORDER PRONOUNCED IN OPEN COURT ON 5 TH JULY, 2021. SD/- SD/- (CHANDRA POOJARI) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL M EMBER BANGALORE, DATED, THE 5 TH JULY, 2021. /VMS/ PAGE 17 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 18 OF 18 ITA NO.417/BANG/2016 ITA NO.172 TO 175/BANG/2019 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -6-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -6-2021 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -6-2021 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -6-2021 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -6-2021 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -6-2021 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -6-2021 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS