2013 (1) TMI 737

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....nsportation of stones resulting into undisclosed sales and income which is not only bad in law but also against the facts and circumstances of the case. ii) That Ld. Commissioner of Income Tax (A) erred in fact and in law in not allowing the compounding fees  amounting to Rs. 28,21,615/- which was imposed by the govt. on illegal transportation of stones." 3. In this case it is observed that a survey was conducted at the premises of the assessee by the Forest Department/PWD and Revenue Department of Uttarakhand. Subsequently, the joint enquiry committee consisting of officials of forest department, PWD and Revenue Department also surveyed the premises of the assessee company for verification of the stock. On the basis of findings as ....

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....o fresh evidence has been led which can cause any interference towards the order of DM. Ld. Commissioner of Income Tax (A) concluded as under:- "Since the forest department officials and the joint enquiry committee were the experts to determine the quantum of illegal transportation, the report of such authorities cannot be brushed aside. Further, DM, Nainital, being competent officer to evaluation such reports, I have no other fresh materials to differ from the finding of such authority and accordingly the addition made by the Assessing Officer towards the undisclosed profit and capital employed in the business to the tune of Rs. 11,14,179/- is hereby confirmed and no interference is called for." 5. Against the above order the Assessee is ....

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...., Nainital vide order dated 19.3.2005 imposed compounding fee of Rs. 5,04,363/- on account of illegal storage of mineral of 5045.93 cubic meter. Then DM, Nainital further imposed compounding fee of Rs. 26,43,371/- on account of illegal transportation of 10032.07 cubic metres of minerals. AO further noted that after considering the objections which are similar to the objections made before him, the DM, Nainital rejected the petition and confirmed the amount imposed upon assessee. Thereafter, the assessee filed the petition before the Divisional Commissioner, Nainital where the matter is still pending for consideration. In this regard, AO held that since the assessee could not give evidence before the DM, Nainital and the DM, Nainital after ....

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....orders of the Divisional Commissioner, Nainital on this issue. Needless to add that the assessee should be granted adequate opportunity of being heard. 6.2 A reading of the above shows that facts in the present case are identical to the one adjudicated by the tribunal in the aforesaid order. In this case also the matter for adjudication is pending before the Divisional Commissioner, Nainital. Both the authorities have totally relied upon the order of the DM, Nainital. Since the same is pending before the DM, Nainital, the same cannot be said to be final and conclusive. Accordingly, respectfully following the above precedent, we remit the issue to the file of the Assessing Officer to consider the same afresh, after examining the appellate o....