Itat/153/2022 Ia No. Ga/1/2022, Ga/2/2022 Principal Commissioner Of Income Tax, Asansol v. M/S. Eastern Coalfields Ltd

OD – 6 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/153/2022IA NO. GA/1/2022, GA/2/2022 PRINCIPAL COMMISSIONER OF INCOME TAX, ASANSOLVS.M/S. EASTERN COALFIELDS LTD. BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE SUPRATIM BHATTACHARYADate : SEPTEMBER 27, 2022. Appearance:Ms. Smita Das De, Adv.… for appellantMr. Rajeev Kumar Agarwal, Adv.…for respondent. GA/1/2022 The Court :- We have heard Ms. Smita Das De, learned standing Counsel for theappellant and Mr. Rajeev Kumar Agarwal, learned counsel for the respondent. There is a delay of 511 days in filing the appeal. On perusal of the application weare satisfied that sufficient cause has been shown for not being able to prefer the appealwithin the period of limitation. The delay in filing the appeal is condoned. Accordingly,the application for condonation of delay is allowed. ITAT/153/2022 This appeal filed by the revenue under Section 260A of the Income Tax Act, 1961(the Act) is directed against the order dated September 24, 2020 passed by the IncomeTax Appellate Tribunal ‘B’ Bench Kolkata (Tribunal) in ITA Nos. 890 & 891 [Kol] of 2019for the assessment year 2009-2010. The revenue has raised the following substantialquestions of law for consideration : (i)Whether on the facts and circumstances of the case and in law theLearned Income Tax Appellate Tribunal is justified in dismissing the appealof the revenue and upholding the order of the Learned Commissioner ofIncome Tax [Appeal] in deleting the addition of Rs.22,43,24,000/- onaccount of “difference between opening and closing value of non-vendiblecoal” merely relying on the judgment of Learned Income Tax AppellateTribunal for the assessment year 2008-2009 on the same issue wherein thelearned Income Tax Appellate Tribunal has taken the value of this non-vendible coal as NIL based on its judgment in the assessee’s own case forthe assessment years 2003-2004 to 2005-2006, despite the assesseecompany failed to substantiate the difference in closing and opening valueand could not furnish any reliable and convincing material before theassessing officer ?Learned Income Tax Appellate Tribunal is justified in dismissing the appealof the revenue and upholding the order of the Learned Commissioner ofIncome Tax [Appeal] in deleting the addition of Rs.22,43,24,000/- onaccount of “difference between opening and closing value of non-vendiblecoal” merely relying on the judgment of Learned Income Tax AppellateTribunal for the assessment year 2008-2009 on the same issue wherein thelearned Income Tax Appellate Tribunal has taken the value of this non-vendible coal as NIL based on its judgment in the assessee’s own case forthe assessment years 2003-2004 to 2005-2006, despite the assesseecompany failed to substantiate the difference in closing and opening valueand could not furnish any reliable and convincing material before theassessing officer ? (ii) Whether on the facts and circumstances of the case and in law theLearned Income Tax Appellate Tribunal is justified in dismissing the appealof the revenue and upholding the order of the Learned Commissioner ofIncome Tax [Appeal] in deleting the addition of Rs.98,79,000/- on accountof “less showing of stowing subsidy” despite the fact that the assesseecompany failed to submit any documentary evidences in this regard as theproof of subsidy received as recorded in the assessment order ?Learned Income Tax Appellate Tribunal is justified in dismissing the appealof the revenue and upholding the order of the Learned Commissioner ofIncome Tax [Appeal] in deleting the addition of Rs.98,79,000/- on accountof “less showing of stowing subsidy” despite the fact that the assesseecompany failed to submit any documentary evidences in this regard as theproof of subsidy received as recorded in the assessment order ? We have heard Ms. Smita Das De, learned standing Counsel for the appellant andMr. Rajeev Kumar Agarwal, learned counsel for the respondent. We have heard Ms. Smita Das De, learned standing Counsel for the appellant andMr. Rajeev Kumar Agarwal, learned counsel for the respondent. So far as the first substantial question of law is concerned, the learned Tribunalhas followed the decision in the assessee’s own case for the assessment year 2003-2004to 2005-206. We find that the revenue had preferred appeal before this Court in ITAT/230/2017 and by judgment dated 14.12.2021 the appeal filed by the revenue wasdismissed. The relevant portion of the judgment is as follows : “11.The next issue is with regard to the addition on account of closing stockof coal. The CITA confirmed the order of the Assessing Officer on the groundthat the assessee failed to produce any evidence to prove their contention thatthere is no saleable value or realizable value of the closing stock of coal.The assessee while challenging the finding contended that on the basis oftechnical evaluation of coal mixed with Matti the assessee company has valuedsuch stock at NIL, since it is of the view that such coal is not saleable in theopen market. The tribunal held that the assessee is justified in taking adecision whether coal mixed with Matti can be sold in the open market orwhether it would fetch any price, if sold in the open market and the Income TaxAuthorities cannot decide as to whether such coal can be sold in the openmarket or can be used for other purposes. Therefore, the tribunal held thatthe value of the coal as determined by the Assessing Officer does not haveany basis and accordingly accepted the contention advanced by the assessee.Furthermore, the tribunal pointed out that the technical evaluation based on whichthe coal mixed with Matti etc. has been valued at NIL by the assessee has notbeen challenged as incorrect by the revenue authorities. Further it was pointed outthat in the event of the coal being mixed with Matti, and any sum realized bythe assessee on such sale the same would be offered to tax by the assessee undersection 28 of the Act or the same sum brought to tax by the revenue under section41 (1) of the Act. 12. We have perused the findings recorded by the tribunal on the otherissues as well. The tribunal has proceeded to deal with the issues one afteranother. As noted above while dealing with each of the issue the tribunalhas given the gist of the findings of the CITA who concurred with theAssessing Officer thereafter took note of the submissions of the assessee anddecided the same for its correctness. While dealing so the tribunal consideredthe factual position in its entirety and granted relief to the assesseewherever admissible and permissible. Therefore, we are fully satisfied that thecase before us is entirely factual and the materials which were available on recordwere re-examined by the tribunal and relief has been granted to the assessee. The revenue cannot dispute the position of law that the tribunal isthe last fact finding authority and this court exercising jurisdiction undersection 260 A of the Act is not expected to reexamine the facts and record adifferent conclusion merely because it may be of the view that different conclusionwould be appropriate. The jurisdiction under section 260 A of the Act is toascertain as to whether any substantial question of law arises for consideration inthe appeal and if it is so arises, then decide and answer the substantialquestions of law one way or the other. As all the issues are entirely factualand we being satisfied that the tribunal has re-examined the facts andrendered the findings on the above issues after re-examining the records, we arenot here to upset such factual findings under section 260 A of the Act.” Thus, following the above decision, substantial question of law no.[i] is answeredagainst the revenue. Thus, following the above decision, substantial question of law no.[i] is answeredagainst the revenue. So far as the second substantial question of law is concerned, we have perusedthe order passed by the Commissioner of Income Tax [Appeals], Asansol [CIT(A)] as wellas the order passed by the learned Tribunal, the learned Tribunal has thoroughlyexamined the factual position and approved the finding rendered by the CIT(A). We findthat this issue is entirely factual and no substantial question of law arises forconsideration on the said issue. In the result, the appeal filed by the revenue is dismissed. Consequently, theconnected application for stay also stands dismissed. (T.S. SIVAGNANAM, J.) (SUPRATIM BHATTACHARYA, J.)