2023 (7) TMI 564 - AT - Income Tax

Under invoicing of the export sales - AO based on the report of the Hon ble Justice, Enquiry Commission, found that the assessee has exported iron ore which were under invoiced - HELD THAT - We note that the in the case of DCIT vs. Raw Mining and Industries Pvt. Ltd. 2020 (1) TMI 1115 - GUJARAT HIGH COURT has decided the issue in favour of the assessee stating AO has miserably failed to collect any evidence against the assessee demonstrating the fact that it has under-invoiced its export and therefore, received unaccounted sale proceeds. The undisclosed sales cannot be worked out on the basis of this report, and no addition required to be made in the absence of any evidence Admittedly, the assessee is the trader of Mineral Ores and not engaged in mining activities. Hence, grounds of appeal of the revenue are hereby dismissed.

Summary

Issues:
The judgment involves the issue of under invoicing of export sales and the deletion of addition made by the Assessing Officer.

Issue 1: Under Invoicing of Export Sales
The Revenue appealed against the order of the Learned Commissioner of Income Tax (Appeals) regarding the addition made on account of under invoicing of export sales amounting to Rs. 2,45,30,899. The Revenue contended that the deletion of this addition by the Ld. CIT(A) was erroneous.

The Assessing Officer (AO) found that the assessee, a partnership firm engaged in cargo handling work, shipping, and trading of scrap, had under invoiced iron ore exports based on the report of the Justice Shri MB Shah Enquiry Commission. The AO treated this under invoicing as income and added it to the total income of the assessee.

The Ld. CIT(A) deleted the addition, stating that it was based solely on the Shah Commission's report without proper verification. The assessee, being a trader and not a miner, had purchased goods at arm's length and exported them at a price accepted by all authorities. The AO failed to provide evidence of under-invoicing by the assessee and wrongly shifted the burden of proof. The methodology used by the Commission was deemed improper, and no action was recommended by government agencies based on the report.

The Tribunal upheld the Ld. CIT(A)'s decision, citing the lack of evidence against the assessee for under-invoicing. The Tribunal found no merit in the AO's findings and dismissed the appeal, agreeing with the decision of the Ld. CIT(A) and the principles established by the Gujarat High Court in a similar case.

Conclusion:
The Tribunal dismissed the Revenue's appeal, upholding the deletion of the addition made by the AO for under invoicing of export sales. The decision was based on the lack of evidence against the assessee and the proper application of legal principles established by previous judgments.