TaxTMI 
TaxTMI 
2017 (5) TMI 427
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....titioners are also aggrieved by the Volumetric Report prepared by the Income Tax Department through a private Architect to determine the total volume of Manganese Ore extracted by the petitioner during December 2006 to June 2012 read with another report prepared by M/s. Geonko India Pvt. Ltd. on oral sub-contract given by the private Architect. 04- The facts of the case reveal that search and seizure operations were carried out on 20/06/2012 and 21/06/2012 under Section 132 of the Income Tax Act, 1961 at various business premises of the petitioner and no search was carried out at the mines. Along with the search and seizure operation in the group, survey under Section 133A was carried out at mines located at Kajli Dongri on 20/06/2012. The respondent Income Tax Department thereafter, issued notices to the managing partner and all the partners of petitioner firm on 07/06/2012 requiring the presence of partners at the mines for on-spot investigation of the Mining Lease. Later on, the investigation was postponed and a fresh notice was issued by the Income Tax Department on 10/07/2012 requiring the presence of the partners for on-spot verification of the mines. In the notice dated 10/....
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....eputy Commissioner of Income Tax, Bhopal sent a sealed envelope to the petitioners which contained report of survey which was conducted on 13/07/2012 and the valuation report dated 24/07/2012. The petitioners were given time till 07/01/2013 to submit reply to the Valuation Report. 10- The petitioners in turn submitted a request letter dated 07/01/2013 requesting the respondents to provide data collected on the date of survey so that the petitioners could file their objection as the said data was missing from the report. Thirty days time was also sought to file counter report. The Income Tax Department on 09/01/2013 informed the petitioners that the data cannot be provided to the petitioners and time was extended up to 17/01/2013. 11- The petitioners on 17/01/2013 submitted a counter reply in the matter objecting the valuation report prepared by the Department. Another letter was written by the petitioners on 29/01/2013 to grant opportunity of hearing against the valuation report and to file a counter valuation report and to file counter valuation report. 12- The order passed in Writ Petition No.7187/2012 was modified by this Court on 08/03/2013 in Review Petition No.448/2012 and....
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....4/04/2015 passed by the Settlement Commission to proceed with the hearing and the settlement application and the second writ petition of the Income Tax Department i.e. Writ Petition No.3759/2016 was again dismissed by this Court directing the Income Tax Department to raise their objections before the Settlement Commission and a liberty was granted to the Settlement Commission to pass a final order. 16- The petitioners have further stated that Settlement Commission on 3rd, 7th, 8th and on 9th February, 2017 heard the matter and a final order was passed on 17/02/2017. The petitioner's contention is that during the course of hearing before the Settlement Commission, the Settlement Commission indicated that writ petition challenging survey report (volumetric analysis) was withdrawn by the petitioner, therefore, they would not go into the validity of the survey report. 17- The petitioners filed their written response to show that withdrawal of the writ petition was with a specific liberty and was done because of unfortunate circumstances wherein the petitioner's main partner was under judicial custody. A request was also made for appointment of third individual agency to deter....
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.... finding is perverse on account of the simple reason that survey was done on 12/07/2012 while the ex-parte report was prepared on 24/07/2012 and thus, it is obvious that report dated 24/07/2012 cannot be signed on 12/07/2012. 21- Learned counsel for the petitioner submits that the Settlement Commission erred in upholding the survey report merely on the basis of withdrawal of Writ Petition No.8898/2013 earlier filed before this Hon'ble Court without appreciating the fact that the withdrawal of writ petition was with a specific liberty to raise all objections to the survey report before the Settlement Commission. He further submits that the Settlement Commission was not justified in simply brushing aside the mining plan which was approved by IBM in 1998 and also in 2008 without considering that the mining plan is a statutory document prepared under MMDR Act. 22- His contention is that the Settlement Commission has erred in terming the private Architect as an expert since a person who does not even possess the necessary qualification to work as a geologist cannot be termed as an expert and even the basic findings of this private Architects' report are flawed and demonstrates....
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.... Mobiles etc. were seized during the course of search. 26- It has further been stated that on a preliminary examination of the documents so seized, it was revealed that the petitioners have suppressed their actual income and their books of accounts / accounts disclosed to the Income Tax Department did not reflect the true status of its business affairs. It has been further stated that the petitioner firm had not only been grossly suppressed the actual quantity of production of Manganese Ore situated at Kajli Dongri, Jhabua but it had also suppressed the actual rate at which the Manganese Ore was being sold. 27- The respondents have further stated that the seized documents prima-facie indicated that systematic and regular payments were being made by the petitioners group to various officers / officials of the Central Government as well as the State Government including regulatory authorities and it was also detected that accounted production expenses which were several times higher than that recorded in the books of account. 28- The respondents have further stated that it was considered necessary to conduct a survey under Section 133A of the Income Tax Act, 1961 at the Kajli Dong....
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....umetric measurements was done in presence of the technical person of the petitioner firm namely Shri K. S. S. Reddy, General Manager who as present full time during the exercise. Four partners of the petitioners firm along with their counsel Shri Sumit Nema were also present for a major part of the survey period. Before the start of the survey, calibration of the equipments being used was demonstrated to the representatives of the petitioners. 34- On the request of Shri Reddy, this process was done twice and he was fully satisfied. The print outs of the coordinates taken at the time of survey were duly signed by them in token of this fact. Due opportunity was given and it reflects that the entire process of volumetric measurement was done in presence of the representatives of the petitioners and no secrecy was required in the matter as alleged in the petition. 35- The respondents have further stated that so far as the survey operation under Section 133A is concerned, this issue has been examined and decided by this Court in Writ Petition No.7187/2012 decided on 31/07/2012. The respondents have further stated that volumetric measurements were carried out with the assistance of the....
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....1/2007 was taken from Catosat and another image was taken of 12/07/2012. The surfaces of the mine of these two different dates were generated using Terrestrial Laster Scanning technology as well as Satellite based Photogrammetry. These two surfaces were brought together by common points available on both the 3D surface data. Hence, whatever data is available in the Report is the data of excavation from mine between January 2007 till 12/07/2012. Accordingly, there is no point of excavation prior to December, 2006. The petitioners contention is this regard are false and misleading. 40- The respondents have further stated that Volumetric Measurements were made for the excavated area, heaps of Manganese Ore, ROM & over burden lying in the mine area alloted to M/s. S. R. Ferro Alloys. Volumetric Measurements were also made for the heaps of over burden lying in the area outside the mine area in village Pipalkhunta where permission for dumping overburden has been granted to M/s. S. R. Ferro Alloys by the Collector, Jhabua. Volumetric Measurements were also made for the heaps of over burden lying in the area outside the mine area in village Pipalkhunta where no permission for dumping over....
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....rried out the 3D Terrestrial Laster Scanning- Photogrammetry in continuation to the survey carried out by M/s. Pilliwar has clarified that the survey has been conducted thus:- "Determination of the Volume of the pit by utilizing the techniques of 3D Terrestrial Laster Scanning (present day) and Satellite date from NRSC (Satellite image of December 2006/January 2007)" [further, determination of Volume of at lease on heap by utilizing the techniques of 3D Terrestrial Laster Scanning (present day) for corroborative purposes.] In spite of the clear indication as above, the Applicant insisted that the Volume of Pit existing in 1998 should be deducted from the total excavated Volume as calculated in the domain expert's report. Apart from the above, they have said that the production of ore as shown in their books in the period from November 2006 till the date of the search i.e. 13.07.2012 should be reduced by the production of ore from 1998 to 2006 to arrive at the actual excavation for the period Nov. 2006 to July, 2012. We fail to appreciate the reason for this. It has also been observed by us that the Department had got the survey conducted by the domain expert, after giving an....
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.... was held to be scientific and authentic and all the objections raised by the petitioners in this regard have been over ruled by the Commission. The respondents have further stated that Shri Manish Pilliwar was engaged as domain expert for doing volumetric measurement and not in his capacity as a registered valuer. It has also been stated that Shri Manish Pilliwar has filed an affidavit on 16/08/2013 before the High Court and has stated on oath that he has experience of making volumetric measurement by the Total Station Technique and has earlier undertaken the same job in twelve other cases for volumetric measurements for stock of Iron Ore, Coal, Dolomite, Dolochar etc. 44- It has also been stated that Manish Pilliwar has the qualification and experience for carrying out volumetric measurements. The respondents have also stated that the qualification of registered valuer imported from Wealth Tax Act read with Wealth Tax Rules is applicable only when Section 142A is invoked. The provisions of section 142A of the Income Tax Act and the provisions of Wealth Tax Act and the Wealth Tax Rules are not at all applicable in the present case i.e. a case where survey is conducted under Secti....
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....f imagination can he be called a domain expert. Moreover, his reputation is also questionable as would be evident from the decision rendered in Writ Petition No.4186/2004. It has also been stated that the partners of the petitioner firm and Shri K. S. S. Reddy were given only the coordinates which do not denote any head or tail of the final result. In fact the objection of the petitioner is to the preparation of the final report dated 24/07/2012 by an incompetent person who has no expertise in geology or mining. 49- It has also been stated that the question of basic qualification arose in Writ Petition No.1146/2015 whrein the petitioner was qualified as B. E. but did not hold the relevant degree in mechanical or civil engineering and was not found qualified by this Court to be a registered valuer for the purposes of Income Tax Department. It has been further stated that Shri Pilliwar does not have the basic qualification of a geologist and he is merely qualified as 'Bachelor in Civil Engineering'. 50- It has been further stated that even the certificate issued to Shri Pilliwar by the Income Tax Department authorizes him to value immovable property other than agricultural ....
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....ration & Anr. Vs. Commissioner of Income Tax reported in (2010) 234 CTR (SC) 118 and his contention is that scope of interference under Article 226 is quite limited in the matter of order passed by the Settlement Commission. The respondents prays for dismissal of the writ petition. 53- Heard learned counsel for the parties and perused the record. 54- The undisputed facts of the case reveal that the petitioner No.1 is a partnership firm and the other petitioners are partners / erstwhile partner of petitioner No.1 firm. They are aggrieved by order dated 10/07/2012 passed by Settlement Commission, Principal Bench, New Delhi under Section 245D(4) of the Income Tax Act declaring settlement application filed by the petitioner as abated on account of it not being true and full disclosure of unaccounted income on the basis of a report submitted by the Income Tax Department i.e. Volumetric Report dated 24/07/2012. 55- In the present case search and seizure operations were carried out on 20/06/2012 and 21/06/2012 under Section 132 of the Income Tax Act, 1961 and thereafter, search was carried out under Section 133A at the mines located at Kajli Dongri on 20/06/2012. The Income Tax Departm....
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....stered valuer of the Income Tax Department along with his team were also present, then the proceedings under Section 133A of the Act can not be faulted on that sole ground. In the judgment of the Orissa High Court in the matter of M/s. U.K. Mahapatra (supra), the income tax officer (Headquarters) who was authorized by the Joint Director of income tax unit-2 to conduct the surveys of the premises in question was not an income tax authority under the said explanation but that is not the present case. So far as the taking of volumetric measurement is concerned, it has been submitted by the learned counsel for the income tax department before this Court that it was done to ascertain the stock. Under section 133A of the Act the income tax authority can collect information to check or verify the stock. Thus we are of the opinion that it was open to the income tax authority to ascertain the stock position with the help of volumetric survey. So far as the issue relating to the exclusion of applicability of the provisions of Section 133A of the Act in view of the provisions contained in MMDR Act is concerned, we are of the opinion that both the Acts operate in different field and the provin....
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.... which are permissible in law before the appropriate forum. The concerned authority will decide such an objection independently without being influenced by the tentative opinion expressed by us in this order. Thus, we are of the view that no ground for interference at this stage is made out. The writ petition is accordingly dismissed in limine." The petitioner apprehends that the use of the words "tentative opinion" in the said order dated 31.07.2012 may be treated by the respondents as binding in nature for taking decision in the matter in terms of the directions issued by this Court. The petitioner also apprehends that recording of the dismissal of the petition may also be treated by the respondents as if there is no merit in the petitioner's contentions as may be raised at the appropriate stage before the authorities. Learned Senior Counsel appearing for the respondents submits that the apprehension of the petitioner is wholly misconceived, as the opinion which has been expressed by this Court is merely a tentative opinion and a clear direction has been issued that the concerned authority will decide such an objection independently without being influenced by the....
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....plication filed by respondents No.1, 2 and 3 for disposal of I.A. No.13562/2013 and I.A. No.13670/2013 an application filed by respondents No.1, 2 and 3 for issuing directions to initiate proceedings against the petitioner. As far as I.A. No.13670/2013 is concerned, this application has been filed to say that as the petitioners have filed certain documents by fabrication and commission of fraud, prayer made is for initiating proceedings against the petitioner for the same. A detailed order has already been passed on this application on 26.9.2013 and it has been ordered that this application shall be considered and looked into at the time of final hearing. That being so, we see no reason to pass any further orders on this application. As already directed on 26.9.2013, this application shall be considered at the time of final hearing. As far as I.A. No.17309/2014 and I.A. No.10757/2014 are concerned, they are filed for disposal of I.A. No.13562/2013. I.A. No.13562/2013 has been filed for clarification of an earlier order passed on 10.7.2013. Initially when this application I.A. No.13562/2013 was taken up for consideration on 26.9.2013, this Court did not pass any order as a ....
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....le the return of Income Tax for the assessment year 2009-10 has been issued vide notice dated 28.5.2013. The proceedings under Section 153A is based on the result of a search operation conducted under Section 132 of the Income Tax Act on 20 th June, 2012. As these proceedings under Section 153A are not challenged in this petition or in any other proceeding, due to the order of status quo granted by this Court on 10.7.2013, the assessment is not possible. It is said that under Section 153B certain statutory period for completing the assessment is prescribed, which is adversely effecting to the status quo and accordingly, prayer made in I.A. No.13562/2013 is to clarify the order passed on 10.7.2013 and to indicate as to whether the proceedings initiated by issuance of notice under Section 153A of the Income Tax Act are also stayed or respondents can proceed in accordance with law for finalization of assessment proceeding initiated under Section 153A vide notice dated 28.5.2013. During the course of hearing Shri Kaushik took us through various documents and material available on record, the provisions of Section 153A and emphasized that in this petition what has challenged by the p....
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....t dated 24.7.2012 is unsustainable for certain reasons indicated on 13.5.2013, consideration of the said report for the present cannot be permitted. Even though Shri K. C. Kaushik indicated certain reservations to say that if the proceedings under Section 153A are not concluded within the time limit prescribed under Section 153B, interest of revenue would be adversely effected. But the explanation(i) to Section 153B fixing the time limit for completion of assessment under Section 153A clearly contemplates that the period during which the assessment proceeding is stayed by an order or injunction of any Court shall be excluded. That apart, if the petition is ultimately dismissed and the tenability of valuation report dated 24.7.2012 is upheld, the respondent department can always reopen the assessment to the limited extent of considering the said report and making a reassessment. There is no legal impediment in doing so. Taking note of all these circumstances, we dispose of I.A. No.13562/2013 with the following clarification : "The order passed by this Court on 10 th July, 2013 does not prohibit the department from proceeding with the assessment based on the notice under Sectio....
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....9;s application preferred under Section 245(C) based upon the report of a private Architect who does not possess the basic qualification of a mining expert under the MMDR Act or even under the Income Tax Act. He has been termed as Domain Expert which is a term alien to the Income Tax Act. 62- The record reflects that Shri Manish Pilliwar engaged by the Income Tax Department as a domain expert is an Architect. He is having Bachelor degree in Civil Engineering and as per the registration with Income Tax Department he is a valuer for the purposes of valuation of immovable property. The record also reveals that in Writ Petition No.4186/2004 the Division Bench of this Court has dealt with a report submitted by Shri Pilliwar and in the aforesaid case the Bank therein has categorically stated that valuation certificate obtained by the petitioner from Shri Pilliwar is incorrect. In fact the said Shri Pilliwar was earlier in the panel of respondent bank, but due to his bad reputation no work was entrusted to him and the process to remove him from the panel of bank approved valuers was in progress. The following order was passed by the Division of this Court:- "1. This petition filed unde....
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....red during the auction. The Bank would be the looser - because of less amount recovered in the auction process. The petitioner made an offer before the Debts Recovery Tribunal that he would bear the expenditure incurred by the Bank for putting the properties to re-auction, if the sale was to be cancelled. The auction proceedings were in violation of principles of natural justice. 4. These contentions were refuted by the Bank firstly on the ground that the remedy of appeal against the order of Recovery Officer was pre mature. In that, the objection taken by the petitioner about the valuation of the properties was still undecided and pending for adjudication before the Recovery Officer. That the petitioner would get opportunity to apply for setting aside the auction sale under Rule 60 of Schedule-II of the Income Tax Act. Further, the petitioner has not disclosed all the material and relevant facts. The valuation report obtained by the Bank was from an approved Valuer. As the State of Chhattisgarh was established w.e.f. 01.11.2000 and Raipur was notified as the State Capital, there was spurt in the property price in Raipur. This was taken into account while fixing the reserve pric....
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....at would weigh with the bidders to bid low or high price for a particular property and in the absence of any material about the nexus between the officials involved in the bid and the purchasers, the allegation of the petitioner that particular property could have fetched more price, must be discarded as baseless and without any substance. In paragraph 11, the Tribunal then proceeded to consider the objection of the petitioner about the non-compliance of procedure stipulated in Rule 53, in the context of the fact that the reserve price was fixed by the Bank on the basis of valuation report of 2002. The Tribunal found that the petitioner did not file any valuation report of his own prior to issuance of auction proclamation, for which no infirmity can be found with the auction process in question merely because of fixing of reserve price on the basis of valuation report of 2002. The Tribunal also considered the grievance of the petitioner about the formation of cartel and rejected the same since the auction was an open auction and was done in the presence of the petitioner. The Tribunal held that auction proceedings were conducted in accordance with the Rules and established procedur....
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....verse grounds have been raised in the writ petition, during the arguments learned counsel for the petitioner confined to only two points. The first contention is that the petitioner was not given prior notice before the reserve price was fixed by the respondent-Bank in respect of the suit properties. That entailed in infraction of Rule 53 of the Income Tax Act. The second contention raised is again reiteration of ground taken in the objection filed before the Recovery Officer. In that, the valuation of the suit properties was not correct. Further, the reserve price was erroneously fixed on the basis of valuation report obtained by the respondent-Bank in the year 2002, though the auction was to be held on 13.01.2004. 8. The respondent-Bank has opposed this writ petition. Preliminary objection regarding the jurisdiction of Madhya Pradesh High Court has been raised on the ground that the suit properties are situated in the State of Chhattisgarh and also the Debts Recovery Appellate Tribunal, which decided the appeal by the impugned judgment is at Allahabad (State of Uttar Pradesh). On merits, the respondent-Bank has reiterated the arguments, as were canvassed before the Recovery Of....
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....e considered on its own merits by the Recovery Officer. 12. The question is: whether the petitioner is right in contending that the entire auction process has vitiated due to noncompliance of Rule 53 and in particular, not giving notice or opportunity to it, before determining the reserve price. This plea has been rightly countered by the respondents by relying on the exposition in the case of Samir K. Shah (supra). In para 10 and 11, the Supreme Court observed thus:- "10. The Rules do not require the grant of any opportunity to the debtor of being heard before the valuation is made and the reserve price fixed. The debtor is entitled to notice only for the drawing up of the proclamation sale. Presumably, the intention is to keep the debtor informed of the steps taken by the creditor to realise a fair value of the debtor's property. There is no requirement for the creditor to consider any alternative valuation filed at the instance of the debtor. The reference to the decision of this Court in Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh by the appellant, is inapt. The decision relates to a sale in execution of a decree under Order 21 Rule 66 of the Code of Civil Procedur....
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.... an independent opinion on that basis as well. Besides this, nothing more is required to be said at the instance of this petitioner. 15. As no other contention has been raised and arises for our consideration, the petition must fail. However, we must advert to the decision of the Supreme Court cited by the petitioner in the case of Ram Kishun & Ors. v. State of U.P. & Ors.2 in particular, observations found in paragraphs 8, 9, 12, 17 and 19 thereof. The Supreme Court considered the argument of the appellant that no recovery could have been made from the appellant (guarantor), as Debtor has had huge movable/ immovable property and other livestocks which could satisfy the demand of bank loan. Besides, there were two guarantors and the appellant's father was not the only guarantor. In this factual background, it was contended that the entire liability of remaining unpaid amount could not have been fastened upon the appellant. Further objection was taken on behalf of the appellant that the properties of the appellant were worth Rs. 2 lac which had been sold in auction at a throw-away price of Rs. 25,000/- only, that too, without following the procedure prescribed by law. For recover....
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.... development, and there the term always refers to the domain other than the software domain. A domain expert is a person with special knowledge or skills in a particular area of endeavour. (An accountant is an expert in the domain of accountancy, for example.) The development of accounting software requires knowledge in two different domains: accounting and software. Some of the development workers may be experts in one domain and not the other. A SME should also have basic knowledge of other technical subjects." 64- Shri Pilliwar does not possess the qualification as prescribed under Rule 8A of the Wealth Tax Rules. There is no certificate on record to establish that he has carried out any work relating to mines previously. In fact the documents which are on record reflects that the survey done by Shri Pilliwar relates to twelve cases and in all these twelve cases heaps of material was lying at the factory and/or godown premises and volumetric analysis of the same was done by Shri Pilliwar. They do not relates to mines but they relates to godown. 65- There is no document on record to establish that domain expert was in fact an expert. The domain expert who is a private person w....
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....n the settlement application filed by the petitioner and the writ petition was also withdrawn with liberty to raise all the contentions before the Settlement Commission. The withdrawal of Writ Petition No.8898/2013 was made by the petitioners with a specific liberty to raise all contentions before the Settlement Commission. The withdrawal was permitted by this Hon'ble Court in view of the submissions made in the withdrawal application. Thus, the withdrawal of Writ Petition No.8898/2013 did not close any of the rights of the petitioner to raise the issue of illegality of the survey report before the Settlement Commission. It is pertinent to mention here that later on even vide order dated 02/09/2016 passed in Writ Petition No.3759/2016 this Hon'ble Court was pleased to direct as under:- "That apart we grant liberty to the parties to raise all the grounds before the Settlement Commission and it shall be for the Settlement Commission to proceed in accordance with law." 69- Thus, the contentions of the respondents that by withdrawal of Writ Petition No.8898/2013 the matter of challenge to the volumetric measurement report became final is incorrect both on facts and in law a....
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....aterial spread over an area in scattered dumps even more so. 2 Description That the concern Jalan Ispat Castings Limited has not carrier out any excavation in the form of opencast mining or underground mining. This is not factually correct. As confirmed by the State Government team, Jalan Ispat Castings Limited have mined 27389 tonnes of ore against collector permission and 5056.740 tonnes during their lease period. In addition to this, M/s. Quantity Steel Forgings have mined 1448.668 tonnes of ore against collector permission. Moreover the area has been under mining activity for more than 100 years. Commencing from 1902 and during this period, in addition to the 2 nos dump mining permit, 5 nos different parties have worked the area before S R Ferro Alloys. 3 Description In other works it can be safely concluded that the present lessee has carried out almost all of the mining in this mining lease area. This is not correct in the light of what has been clarified above. The extracts from the approved mining plan prepared by Shri Nikhil Pashine in 1998 read as follows "The area was previously held under mining lease for more than 20 years and large dimensional pits are develop....
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.... activity and the mine layout and depth keeps on changing. This requires considerable road making during the life of a mine which is an almost continuous activity. Considerable overburden wast-rock material is therefore, required and is utilized for this purpose. Not taking the same into account for working out the physical verification volume is therefore not correct. 8 Description Para 12 As per McGraw Hill Dictionary of Architecture & Construction it is the ratio of the weight of a loose cubic yard (or meter) to the weight of the bank cubic yard (or metre). For the purpose of this report, the swell is taken and accordingly the correction is proposed to be carried out by multiplying the volume of excavated material by 0.7 to get the actual volume for consideration. (i) The swell factor is normally reckoned in terms of volume and not weight. (ii) The swell factor is different for soils and for rocks. For rocks, it also depends upon the type of rock. (iii) For blasted rock it also depends upon the efficiency of blasting and for normal blasted rock in the mines it is around 0.6. (iv) The McGraw Hill Dictionary of Architecture and Construction is not the right source for this ref....
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....e same applies for the middle pond also. 12 Final Results 1) Total excavated volume - 2011466 m3 2) Total over burden volume - 324057 cumt. 3) Difference between total excavated volume and total over burden volume - 1087409 cumt. 4) Total manganese ore lumps quantity at mining lease area and Dinu's Land 23302.74 cumt. (i) 2011466 m3 cannot be taken as total excavated volume. It is the volume enclosed between the ground profile at the time of measurements and an assumed profile based on old maps of suspect reliability, accuracy and detail. (ii) 324057 cumt as total overburden volume lying in the area seems to be an underestimation. Use of total station is not the right methodology for volumetric measurements of small, irregularly shaped, and haphazardly spread dumps. (iii) 1687409 cumt which is calculated difference between total excavation volume and total overburden volume cannot be taken as the volume of material removed from the area as it does not take into account the loss of overburden material during the period due to natural flow, transportation outside the area, other uses including road making and compaction. (iv) 1687409 cumt which is calculated difference betwee....
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....ed to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to....
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..../2012 prepared by the State Government at the directions of this Court. The said report was prepared by competent revenue and mining officers and that too at the direction of this Court and the report of the State Government highlighted the fact of inaccuracies in using 3D technique. 77- The Settlement Commission has also arrived at a perverse finding in respect of signature of IBM officials and partners of the petitioner on the survey report. This finding falls flat for the simple reason that survey was done on 12/07/2012 while the ex-parte report was prepared on 24/07/2012. How can the later report dated 24/07/2012 be signed on 12/07/2012. 78- The Settlement Commission has erred in upholding the survey report merely on the basis of withdrawal of writ petition filed before this Court. The Settlement Commission has erred in construing the withdrawal as admission of the petitioner without appreciating the fact that the withdrawal application was with specific liberty to raise all objections to the survey report before the Settlement Commission and the withdrawal order was passed considering the grounds raised in the said application. There was no presumption of estoppel against th....