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TMI Blog2024 (5) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... al supplied as were filed before the AO and thereafter also before the Commissioner. Assessee s contention is, the Tribunal opined on it having claimed from the transporter(s). Revenue s contention is there was no loss. This contention was upheld by the Tribunal on a finding that the Commissioner had not observed as to whether the shortage was passed on by the assessee to the transporter(s) and without examining that, the Commissioner deleted the addition. The passage relied upon by assessee is an expression of opinion in support of held omission of the Commissioner to observe as to whether the shortage was passed on to the transporter(s). The Tribunal opined the assessee must have passed it on. There is nothing in impugned order to show th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears on behalf of petitioner-assessee and submits, impugned is order dated 19th August, 2022 made by the Income Tax Appellate Tribunal (ITAT), Cuttack Bench in Miscellaneous Application no.04/CTK/2021 arising out of ITA no.331/CTK/2017 pertaining to assessment year 2009-10. He submits, the order was made invoking power under sub-section (2) in section 254 of Income Tax Act, 1961. 2. Drawing attention to impugned order he demonstrates, contention of his client in the rectification proceeding was that in the appeal the Tribunal had made error apparent in its order by saying transportation loss in respect of coal was not accepted. Its opinion was, the assessee must have claimed the same on the responsible transporter, which has not been shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, we allow the ground No.3 raised by the Revenue." (emphasis supplied) He seeks interference. 4. Mr. Satapathy, learned advocate, Senior Standing Counsel appears on behalf of revenue and submits, the Tribunal found on facts, on approach by the assessee for it to invoke its power under section 254(2). The Tribunal refused to do so. The matter remains in the domain of facts ascertained by the Tribunal, the last forum to find on facts. In event petitioner is aggrieved, statutory remedy of appeal is available under section 260-A. In the circumstances, the writ petition is not maintainable and be dismissed. 5. Sub-section (2) in section 254, without the provisos, is set out below. "(2) The Appellate Tribunal may, at any time wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng coal it is transported upto the destination where the coal measurements are taken by the assessee and shortages are also properly recorded but the CIT(A) has not observed as to whether the shortage are claimed by the assessee to the transporters and without examining the above facts the CIT(A) deleted the addition made by the AO, which in our opinion is not plausible. Neither the assessee has made any effort with regard to the above fact nor he has filed any supporting documents or evidence before us. The assessee has just explained before us that the shortage of coal worked out to 0.498% of the total coal purchased and simply accepted that the above percentage of shortage is very reasonable nor the auditors have made any adverse comment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been lost. The AO in asserting it was not lost, could have demonstrated existence of the coal. 10. In view of aforesaid we are satisfied that in the fact situation the Commissioner correctly came to the conclusion that proper internal control system for accounting and finances of assessee had resulted in the details filed before the AO and thereafter before the Commissioner. The details explained and accounted for the shortage of coal. This finding was overturned by the Tribunal in revenue's appeal on saying that the Commissioner had not observed whether the shortage had been passed on to the transporter(s). The Commissioner could have had no occasion to so observe as the authority was sitting in appeal over the assessment order. Neither ..... X X X X Extracts X X X X X X X X Extracts X X X X
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