9911796707
TMI Blog2022 (8) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid aspect and in the light of the fact that no categorical findings on suppression of sale price have been made by the petitioner or that the Assessing Authority had not found proof of sale of ROM having ferrous content of 60 to 62%. Learned Tribunal in the impugned judgment has also categorically taken note that the State has not made any allegation of concealment of turnover or fixation of any higher price by the petitioner, but State s only contention is that IBM rate or the price fixed for calculating royalty amount should have been considered as a measure to calculate the total GTO on the ground that the IBM rate has been evolved after considering the production grade and the prices fixed by top ten Mining Companies dealing in the field. It appeals to reason the assessment made in respect of the Financial Year 2009-10 for the months of September to December 2009 also deserves to be remanded to the Assessing Authority to examine these aspects of the matter - Matter is remanded to the Assessing Officer to examine the case of petitioner - Petition allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... there does not appear any date for coming into effect for insertion of Section 2 (lxA), as per the Notification published. As per the Notification available on the website, it comes into effect from 07.05.2011 which is beyond the Assessment order i.e. 31.01.2011. The exact date for coming into effect of Section 2(lxA) of JVAT Act will have important bearing in the instant matter. In case it has not been given a retrospective effect along with Section 35(7), no mechanism or power can be said to exist for the Assessing Authority for determination of the value of goods on the date of Assessment order by benchmarking the same to the market value. Section 35(7) would have no meaning if Section 2(lxA) is also not given effect to. The Assessment order brought in the instant matter pertains to the period 2009-10 and was passed on 31.01.2011 on which date Section 35 (7) did not exist in the JVAT Act and hence, action of the Assessing Authority to undertake determination of the value of goods by using IBM price as a benchmark on the ground of undervaluation, could be without jurisdiction, as no such power was available to the Assessing Officer. 5. In the face of such legal proposition, peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It has been further stated that in the mining returns filed by the petitioner in the Mining Department for August 2009, the opening balance of ROM below 62% has been mentioned as 44802.605 MT and the production has been shown as Zero. In the closing balance, 44802.605 MT has been shown in Fe (below 62%) Column. In the returns filed for the month of September 2009, opening balance in the column of Fe (below 62%) has been mentioned as 44802.605 MT whereas production has been shown as 948.660 MT. The total production has been mentioned as 45751.265 MT and dispatch of below 62% Fe has been mentioned as 948.660 MT. Again in the returns filed for the month of October 2009 and November 2009, production figures have been shown to be below 62% Fe. Similarly, in the returns for the month of December 2009, opening balance of ROM below 62% Fe has been shown as 13770.245 MT and production has been shown as Zero, whereas in the dispatch, it has been shown as 13261.620 MT as in the column of ROM below 60%. 8. Respondent contended that the petitioner are claiming that the dispatch made by them is below 60% Fe which is wrong. Thus, on the basis of quality / grade of iron ore mentioned by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... %, taking it a benchmark with the sale price of two other companies, the petitioner has been assessed under section 35(7) of JVAT Act to pay tax liability of Rs 31,21,639.00 over the GTO of Rs. 78040976.00. For any incomplete filing of JVAT 409, penalty of 0.1% under section 63 was also imposed. The total liability came to Rs. 31,99,679/-, as per the Assessment Order dated 31.01.2011. 11. Petitioner on its part had produced the Analytical Report of State Geological Laboratory, Government of Jharkhand, Hazaribag. The report shows the ferrous content as between 44.95% to 53.05%. Learned Tribunal has taken note of proforma-A submitted by the petitioner under Rule 51 of Mineral Concession Rule, 1960 which showed the grade as below 62% Fe. This being the lowest grade of ferrous content on which rate of ad-Valorem royalty is fixed. It is the case of the petitioner that such proforma in itself does not determine the quantification of sale price which is the actual price on which the ROM has been sold by the petitioner to its purchasers. It appears from the appellate order for the Financial Years 2010-11 and 2011-12 that the Appellate Authority has held that the Assessing Officer had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show any distinguishing features in the assessment orders passed against the petitioner for the Financial Years 2009-10 and subsequent years 2010-11 and 2011-12. As noted above, petitioner was imposed tax and penalty under section 35(7) read with section 40(2) of the JVAT Act in the subsequent financial years also treating the IBM ad-valorem rate of royalty as the benchmark + comparative rate of two other dealers regarding the sale of ROM. The Appellate Authority vide order dated 27.08.2015 has remanded the matter to the Assessing Authority to examine the aforesaid aspect and in the light of the fact that no categorical findings on suppression of sale price have been made by the petitioner or that the Assessing Authority had not found proof of sale of ROM having ferrous content of 60 to 62%. Learned Tribunal in the impugned judgment has also categorically taken note that the State has not made any allegation of concealment of turnover or fixation of any higher price by the petitioner, but State's only contention is that IBM rate or the price fixed for calculating royalty amount should have been considered as a measure to calculate the total GTO on the ground that the IBM rate has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
