TaxTMI 
TaxTMI 
2017 (5) TMI 427
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....lumetric Report dated 24/07/2012. 03- The petitioners 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 v....
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....e petitioner. 09- On 26/12/2012, the respondent No.3 - Deputy 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 modifi....
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....s also preferred another writ petition being aggrieved by order dated 24/04/2015 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. ....
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....ture of IBM officials and partners of the petitioner on the survey report and the 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 ....
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....ous paper, documents and digital data contained on Hard Disks, Pen Drive, Laptops, Servers, 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 consider....
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....re the presence of its technical experts and all the partners during the survey. The entire exercise of volumetric 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 31/07/201....
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.... the course of survey. 39- It has been further submitted that in the Volumetric Measurement Report, an image of 22/01/2007 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....
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....e total excavated Volume mentioned above is that which has been excavated after 2007. Reports of M/s Geonko India Pvt. Ltd. which carried 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 t....
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....d that since no extra ore was found at all, no addition can be made." 43- The contention of the respondent is that as per the finding of Settlement Commission it is clear that the report of the domain experts 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 invoke....
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.... heaps of materials lying at the factory and / or godown premises. 48- It has also been stated that Shri Pilliwar does not have domain knowledge nor past experience can be attributed to Mr. Pilliwar and by no stretch of 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....
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....rference as the IBM officials and M/s. Geonka India Pvt. Ltd. were also present at the time report was prepared. Learned counsel for the respondent has placed reliance upon a judgment delivered in the case of Ajmera Housing Corporation & 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 ....
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....ection and it is not in dispute that at the time of survey the income tax authorities so specified in the explanation were present. We are of the opinion that to assist the specified income tax authority if the other income tax officials and the registered 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....
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....age. The petitioner has challenged the proceedings dated 12.07.2012 to 13.07.2012 conducted under Section 133A of the Income Tax Act. As and when any report is prepared and used against the petitioner on the basis of the said survey, it would be open to the petitioner to raise all such grounds 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 ....
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....ounsel for the petitioners. Shri K. Kaushik, Additional Solicitor General of India along with Shri Sanjay Lal and Ms. Anjana Singh for the respondents No.1, 2 and 3. Parties are heard on I.A. No.13562/2013, an application for clarification of the order dated 10.7.2013, this application is filed by respondents No.1, 2 and 3; I.A. No.17309/2013 again an application 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....
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....t is proceeding to make certain assessment. Taking note of all the circumstances, it was directed that till the next date of hearing, status quo should be maintained and no further action shall be taken by the respondents. The matter was heard and finally I.A. No.13562/2013 was filed wherein it is pointed out that a show cause notice under Section 153A of the Income Tax Act calling upon the petitioner to file 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 ....
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....39;s report is dated 24.7.2013 and the proceedings under Section 153A had been initiated on the basis of search operation conducted under Section 132 on 20th June 2012. Prima facie, therefore, for the purpose of assessment under Section 153A only such material can be relied upon which was found in the search operation conducted under Section 132. That apart, once this Court on prima facie assessment has found that the valuer's report 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 resp....
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....and the Department has preferred a Writ Petition No.4589/2015 and a second writ petition was also preferred by the Income Tax Department i.e. Writ Petition No.3759/2016. Both the writ petitions were dismissed by the Division Bench of 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. 61- The Settlement Commission has rejected the petitioner'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 S....
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.... inter alia, non-compliance of Rule 53 of Schedule-II of the Income Tax Act, 1962 (for brevity "Income Tax Act") before proceeding with the auction process. Further, the Recovery Officer overlooked the formation of cartel by the participants during the auction. The Recovery Officer did not apply his mind and failed to stop the auction process in spite of such illegal activities and instead hastened the process within two minutes. The actual value of the properties was much more than the price offered 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 Offi....
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....on. The Tribunal in paragraph 8 found that the valuation report of the Bank prepared in the year 2002 cannot be said to be on the lower side considering the fact that the State of Chhattisgarh was established on 01.11.2000. In paragraph 9 of the judgment, the Tribunal then considered the reasons why the reserve price for the concerned properties was fixed and found that the approach of the Bank in that behalf was correct. In paragraph 10 of the judgment, the Tribunal found that there may be several factors that 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 ....
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....unal once again considered those points and has reiterated the opinion of the Tribunal and of the Recovery Officer. Leaving all questions regarding the said objection open, the appeal preferred by the petitioner came to be dismissed. The Appellate Tribunal also noted about the unwillingness of the petitioner to avail the offer given by the respondent-Bank and observed that the petitioner was indulging in dilatory tactics Against these concurrent decisions, the present writ petition has been filed. 7. Although diverse 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 200....
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....orum has observed that the objection regarding correct valuation of the suit properties raised by the petitioner would be adjudicated by the Recovery Officer at the appropriate stage. This view taken by the Recovery Officer and as affirmed by the Tribunal as well as Appellate Tribunal commends to us. We hold that no other opinion is possible. The Appellate Tribunal has restated the clarification noted by the Recovery Officer and the Tribunal that all aspects with regard to the objection regarding improper valuation of the suit properties will be 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....
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.... merits and in accordance with law. Whether the sale should be confirmed, set aside or otherwise, would depend on the opinion of the Recovery Officer to be given after considering the said objection. Although the Recovery Officer will have to consider the said objections afresh, as observed by the Tribunal as well as the Appellate Tribunal, that, however, does not mean that the factual narrations mentioned hitherto and available from the record would get effaced. The same, nevertheless, will have to be reckoned for deciding the matter in issue before the Recovery Officer, to form 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....
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....oner - which is still pending for adjudication. 18. For the reasons mentioned hitherto, the petition is dismissed being devoid of merits with cost quantified at Rs. 25,000/- to be paid to the respondent- Bank, in the facts of the present case." 63- Much has been stated by the Income Tax Department stating that Shri Pilliwar is a domain expert. The Domain Expert is defined in Wikipedia and the same reads as under:- "A subject-matter expert (SME) or domain expert is a person who is an authority in a particular area or topic. The term domain expert is frequently used in expert systems software 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 pres....
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....unds in the methodology adopted by Shri Pilliwar, however, once this Court has opined that Shri Pilliwar who is a private person was not an expert in the subject and could not have carried out volumetric measurement, the comments on the procedure adopted by him are unwarranted. 68- The order of the Settlement Commission also suffers from perversity to the extent the validity of volumetric report has been admitted because of withdrawal of the writ petition by the petitioner. The objections to the validity of the volumetric measurement report did not stand withdrawn but were very much alive and were already raised before the Settlement Commission in 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 petitione....
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....nt of time and not its dynamic history. (ii) Old maps/plans, even if available do not give correct, reliable and sufficiently detailed idea about the actual surface profile at different points in time to be usable for this purpose. (iii) The volume so worked out can therefore only give an idea of the hypothetical volume of the void between an assumed upper level and the existing lower level and not the volume of excavation carried out over a period of time. (iv) There is loss of excavated material due to natural flows, compaction and other uses including transportation outside the area. Even rocks undergo changes due to erosion and denudation caused by natural forces, broken material 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....
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.... to waste dumps. The mineralized material from the ore benches i.e. run of mine (r.o.m.) is taken to the crushing plant for primary crushing and for subsequent sizing and sorting thereafter. 7 Description Para 11 Certain quantity of overburden appears to have been used for the construction of road within this mining lease area. This quantity is negligible and insignificant and hence not considered in account for working out the physical verification volume. As already indicated in Sr.No.(1) above, substantial quantities of overburden waster material is lost due to natural flows (particularly the finer/smaller size material) compaction and other uses, including transportation outside the area. Mining is a dynamic 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 ....
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.... initial volume) 1916770.550 Both 3-D terrestrial laser scanner and total station are modern and sophisticated instruments used in surveying practice. It is however misleading to call it volume of the Pit. It is, in fact, volume of the void enclosed between the ground profile at the time of the survey and an assumed ground profile at some higher level. The secondary sources material such as old maps etc. lack the desired accuracy, reliability and detail to be usable as a bench mark for the purpose. 11 Conclusion It is seen from the onsite measurements that the foot wall pond has an average depth of 12ft (3.65 m) for about 50% of area and average depth of 6ft (1.83 m) for about 45% area (0.60 m) for about 5% area. This more of guess-work. The 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 gro....
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....arch and assessment of undisclosed income under Section 133A can be done only with reference to incriminating material recovered from such and not post search material. 73- Identical issue come up before the Delhi High Court in the case of CIT Vs. Kabul Chawla reported in 380 ITR 573 (Delhi) wherein all the earlier decisions delivered by the High Courts have been considered and legal position decided by the Delhi High Court is summarized as under:- "On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued 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 ....
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....ission is perverse and devoid of merits, both in law and on facts and hence deserves to be set aside and is accordingly set aside. The Settlement Commission has erred in upholding the survey report dated 24/07/2012 merely because Total Station Method and 3D scanning technique was used without considering the fact that the person preparing the said report was incompetent and did not possess the necessary qualification to prepare the said report and gross inaccuracies were writ large on the face of the report, like Manganese Ore being 83% and waste being 27% which is impossible. Moreover, the gross production for six years determined at 16 lac MT was more than the estimated reserve determined as epr the mining plan which again is impossible. 76- The Settlement Commission has also erred in rejecting the report dated 17/06/2012 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....
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....t be termed as an expert. Even the basic findings of this private Architect's report are flawed and demonstrate that he is no expert. 82- The petitioner's application has been wrongly treated as not being full and true by the Settlement Commission merely on the basis of the report dated 24/07/2012. All the facts were fully disclosed before the Settlement Commission including the factum of wrong allegation of excess mining being levied by the Income Tax Department on incorrect facts and the Settlement Commission has not even discussed how the contentions of the petitioner are wrong in so far as secondary evidences were concerned. It has simply reproduced in a columnar form the submissions of the Income Tax Department and the averment of the petitioner without pointing out how the petitioner is at fault. The Settlement Commission thereafter, proceed to determine that the private Architect is an expert, his report is based on latest technology and the fact of withdrawal of petition by the petitioner and thereafter the application was treated as not being full and fair disclosure of facts. The Settlement Commission has even dismissed the report dated 17/06/2013 prepared by t....
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