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TMI Blog2023 (7) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - ITA No. 19/Rjt/2021 - - - Dated:- 12-7-2023 - Shri Waseem Ahmed, Accountant Member And Shri T.R Senthil Kumar, Judicial Member For the Revenue : Shri K.L Solanki, Sr. D.R For the Assessee : Shri Mehul Ranpura, A.R ORDER PER WASEEM AHMED ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Revenue against the order of the Learned Commissioner of Income Tax (Appeals)-11, Ahmedabad, (in short Ld. CIT(A) ) arising in the matter of assessment order passed under s. 143(3) r.w.s. 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in deleting the addition made by the AO for Rs. 2,45,30,899/- on account of under invoicing of the export sales. 4. Briefly stated facts are that the assessee in the present case, a partnership firm, is engaged in the business of Cargo Handling Work shipping/stevedoring of iron trading of scrap. The AO during the assessment proceedings based on the report of the Hon ble Justice Shri MB Shah, Enquiry Commission, found that the assessee has exported iron ore which were under invoiced by sum of Rs. 2,45,30,899/- only. Accordingly, the AO treated the same as income and added to the total income of the assessee. 5. Aggrieved assessee preferred an appeal to the learned CIT(A) who deleted the addition made by the AO by observing as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or buyer would under-insure their cargo and no bank would agree to contract the amount or the export value lower the insurance amount Solicitor General of India as well as Advocate General of Goa and Other States made it clear to the Hon'ble Supreme Court that no action will be taken against mining lessees only on the basis of the report Reference is invited to para 10 of the judgment. Thus, on the basis of the report, no action ought to be taken against the Assessee. No evidence was being possesses by the AO to demonstrate that the assessee has under invoiced its export The AO put onus upon the assessee to justify its rates, whereas it should be other-way round. The AO has to justify that the rates of the assessee could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o take any action. rather they will investigate the issue further The AO has miserably failed to collect any evidence against the assessee demonstrating the fact that is 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 7.7 Therefore, even on merits, there is no substance in the finding of the AO, and thus, the addition is required to be deleted. Thus the ground of appeal is allowed 6. Being aggrieved by the order of the Ld. CIT(A), the revenue is in appeal before us. 7. Both the Ld. DR and the Ld. AR before us relied on the order of the authorities below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantial question of law arises. Accordingly, the appeal is dismissed with no order as to costs. 8.1 Admittedly, the assessee is the trader of Mineral Ores and not engaged in mining activities. The ratio laid down by the Hon ble Gujarat High Court as discussed above is squarely applicable in the given facts and circumstances on hand. Hence, respectively following the judgement of Hon ble Gujarat High Court as discussed above, we do not find infirmity in the order of the Ld. CIT(A). Hence, we declined to interfere in the findings of the Ld. CIT(A). Thus, the grounds of appeal of the revenue are hereby dismissed. 9. In the result, the appeal of the revenue is dismissed. Order pronounced in the Court on 12/07/2023 at Ahmedabad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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