TMI Blog2017 (5) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and thereafter the application was treated as not being full and fair disclosure of facts. The Settlement Commission has even dismissed the report dated 17/06/2013 prepared by the State Government at the direction of this Court. The Settlement Commission has also dismissed the statutory mining plan prepared under The Mines and Minerals (Development and Regulation) Act, 1957 and approved by IBM. The entire order does not discuss the petitioner's submission or why the submissions were not true and full and this approach shows that the Settlement Commission was predetermined not to pass the final order but proceeded with singe minded determination to send the petitioner back to the Assessing Officer. This Court is of the considered opinion that the order passed by the Settlement Commission dated 17/02/2017 passed under Section 245D(4) deserves to be quashed and is accordingly quashed. The volumetric report dated 24/07/2012 prepared by the Income Tax Department through a private architect is also quashed and the matter is remanded back to the Settlement Commission to process the petitioner's application and to pass a final order afresh ignoring the volumetric report d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the mines. In the notice dated 10/07/2012 it was mentioned that in case the petitioners fail to remain present at the designated place, it will be presumed that they are in agreement with the inferences arrived at by the investigation wing of the Income Tax Department pertaining to on-spot investigation. 05- The petitioner has further stated that some of the petitioner's partner remained present during the exercise conducted by the Department. The petitioner has further stated on 12/07/2012 and 13/07/2012 survey proceedings under Section 133A of the Act at the mines of the petitioner took place in exercise of power conferred under Section 133A and a record of proceedings was drawn. 06- The petitioners thereafter challenged the survey proceedings by filing a writ petition at Indore i.e. Writ Petition No.7187/2012 and by an order dated 31/07/2012 the matter was decided on the ground that the respondents therein were competent to carry out the survey and as and when valuation report will be prepared, the petitioner will have a liberty to challenge the same before the appropriate forum. 07- The petitioners have further stated that Income Tax Department conducted a vol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt on 08/03/2013 in Review Petition No.448/2012 and this Court made it clear that the order passed on 31/07/2012 shall not in any way come in way of the concerned authorities for deciding the petitioner's objections as already directed and the authorities shall be free to pass appropriate order in accordance with law. 13- The petitioners thereafter, intimated the department about the order dated 08/03/2013 passed in Review Petition No.448/2012 and requested the respondents to decide the earlier objections in accordance with law. The petitioners on 11/04/2013 submitted a letter to the department pointing out that report of private Architect is illegal, void and without jurisdiction and the same is contrary to the provisions of the Act and various administrative instructions issued by Central Board of Direct Taxes. As nothing was being done, the petitioners again preferred a Writ Petition No.8898/2013 challenging the report dated 24/07/2012 and during the pendency of the writ petition an application was filed for withdrawal of the writ petition with a liberty to approach the Settlement Commission and to raise all grounds therein. Request of the petitioners was allowed and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest was also made for appointment of third individual agency to determine the excavated volume. The petitioner's further contention is that the Settlement Commission without considering the grounds raised by the petitioner on 09/02/2017 pronounced the order that they will like the mater to go back to the Assessing Officer as they cannot discard the volumetric report of a private Architect. 18- The Settlement Commission has finally treated the application for settlement by order dated 17/02/2017 as abated on account of it not being true and full disclosure of unaccounted income on the basis of volumetric report dated 24/07/2012. The petitioners have raised various grounds before this Court. The petitioner's contention is that the Settlement Commission was not justified in rejecting the application filed under Section 245(C) by the petitioners on the basis of a report by a private Architect who did not even possess the basic qualifications of a mining expert under the MMDR Act or even under the Income Tax Act and such a person cannot be even called a domain expert. 19- The second ground raised by the petitioner is that the Settlement Commission erred in law and facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic findings of this private Architects' report are flawed and demonstrates that he is no expert. 23- His further contention is that the petitioner's application has been wrongly treated as not being full and true by the Settlement Commission merely on the basis of the report dated 24/07/2012 since all the facts were fully disclosed before the Settlement Commission including the factum of wrong allegations of excess mining being levied by the Income Tax Department and the Settlement Commission has not even discussed how the contentions of the petitioner are wrong in so far as secondary evidence was concerned, since it has simply reproduced in a columnar form, the submissions of the Income Tax Department and the averments of the petitioner without pointing out as to how the petitioner is at fault and the entire order does not discuss the petitioners submissions or why the submissions were not true and full and this approach shows that the Settlement Commission was predetermined not to pass the final order but proceeded with single minded determination to send the petitioner back to the Assessing Officer. 24- The petitioner besides the aforesaid ground has raised othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to conduct a survey under Section 133A of the Income Tax Act, 1961 at the Kajli Dongri Mine of the firm so that apart from other verification, physical verification of the stock could be undertaken. The survey under Section 133A on 12/07/2012 was an exercise in verification of stock and extent of excavation in continuation and in consequences to searches which commenced on 20/06/2012. 29- The respondents have also stated that during the course of survey the stock lying at the mining site was duly quantified by employing the services of domain experts. As per his report, the stock of Manganese Ore lumps found during physical verification was 23302.74 cubic meters which was multiplied by specific gravity of 3.0 and the same works out to 69908.22 MT. The respondents have stated that inventory of stock was duly taken. 30- The respondents have also stated that as per the volumetric measurement done by them at Jhabua, it is established that the petitioners have not show the correct figures in the books maintained by them. The actual physical stock is more than as reflected in the books. 31- The respondents have further stated that the sole object and intention of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents have further stated that volumetric measurements were carried out with the assistance of the domain experts, namely the team of Geonko India Pvt. Ltd. and officers of the Indian Bureau of Mines and the technique used was Total Stationed Technique. The respondents have stated that volumetric analysis done by them does not suffer from any infirmity and therefore, the question of interference by this Court does not arise. 36- His further contention is that all the arguments raised by the petitioners against the survey operation and the volumetric measurement report have been considered and are found to be devoid of any merit. The objections filed by the petitioners were not found acceptable as mining plan is only an estimation which can be revised later. Hence, the mining plan does not present a true and correct picture of estimation. It is liable to be revised as per ground realities. The quantity of minerals is not freezed by mining plan and actual availability of minerals may be different. 37- It has been further stated that the so called claim of inspections by the competent authority and the Collector of the District finding no illegality to the petitioners&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps of over burden lying in the area outside the mine area in village Pipalkhunta where no permission for dumping over burden has been granted to M/s. S. R. Ferro Alloys by the Collector, Jhabua or any other government authority. Repeated opportunity was given to the partners and General Manager of the petitioner firm to inform whether the over burden was lying at any place other than the places mentioned above but they categorically stated that the over burden was not lying at any other place. 41- It has been further stated by the respondents that during the course of survey, all the objections of the petitioner firm relating to classification of heaps into over burden, ROM or clean ore were duly considered and necessary corrections were made in the classification of heaps to the full satisfaction of the partners and General Manager Of the assessee firm. Detailed record of proceeding was made at the time of survey which bears testimony to this fact. The detailed statement of the partners and General Manager of the assessee firm also bear testimony to this fact. Thus, the objections raised by the petitioners are baseless and devoid of any merit. 42- In respect of writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this. It has also been observed by us that the Department had got the survey conducted by the domain expert, after giving an advance notice to appellant and taking the following measures: 1. Ensuring the presence of personnel from the regulatory authority i.e. Indian Bureau of Mines (IBM) 2. Ensuring the presence of the partners and GM of the Firm. 3. Videography of the entire proceedings. 4. Employing the latest technology which has the highest degree of accuracy to arrive at the result. It is seen that soon thereafter, the applicant approached the Hon'ble High Court of Madhya Pradesh in a writ petition stating that this survey report should not be given any credence. The applicant was confirmed with these facts and our inference. Instead of coming up with cogent reasons to disprove the survey results, the applicant sought to persuade us to disregard the report on the following grounds: a) Qualification of the Surveyors; b) Affidavit of IBM before High Court; c) The surveyor must have inadvertently, taken ore to be the overburden and overburden to be ore. d) In any case, the quality of the ore excavated is poor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act and the provisions of Wealth Tax Act and the Wealth Tax Rules are not at all applicable in the present case i.e. a case where survey is conducted under Section 133A of the Income Tax Act. 45- It has also been stated that Central Board of Direct Taxes has issued instructions i.e. instruction No.5/2011 for taking opinion of technical experts and bringing on record technical evidence in cases involving complex issue of technical nature and substantial revenue after following the directions of the Hon'ble Supreme Court dated 12/08/2010 in the case of CIT, Delhi Vs. Bharti Cellular Ltd. reported in (2010) 193 Taxman 97 (SC). The respondents have further stated that taking help of technical experts of different fields during the course of survey has been an established practice in the Income Tax Department and such help of technical experts is taken when the case involves revenue running into crores. In the present case, the revenue involved was running into crores of rupees and therefore, the action of the department was fully justified in the eyes of law. 46- It has also been stated that a report was prepared by the domain expert with the help of IBM officials and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '. 50- It has been further stated that even the certificate issued to Shri Pilliwar by the Income Tax Department authorizes him to value immovable property other than agricultural lands, plantations, forests, mines and quarries. It has been stated by the petitioner that Shri Pilliwar is not authorized even by the Income Tax Department to value mines and quarries. 51- It has also been stated that Shri Pilliwar is not an expert in respect of total station method and 3D Terrestrial Laster Scanning Method. His contention is that the State Government has also filed a report on 05/07/2013. Lastly it has been stated that the order of Settlement Commission as it is based upon the use of technology by Shri Pilliwar without considering whether he has the necessary qualification or not is bad in law. It has also been stated that the Settlement Commission without considering the fact that IBM personnel have stated in the affidavit that they were not aware of the technology used by Shri Pilliwar as given to the IBM officials at the time of volumetric analysis was carried out, has erred in law and facts. It has also been stated that the Settlement Commission has safely ignored the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 and 21/06/2012 under Section 132 of the Income Tax Act, 1961 and thereafter, search was carried out under Section 133A at the mines located at Kajli Dongri on 20/06/2012. The Income Tax Department prepared a report through a private Architect to demonstrate the total volume of Manganese Ore extracted by the petitioner during December 2006 to June 2012 read with another report prepared by M/s. Geonko India Pvt. Ltd. on oral sub-contract given by the private Architect. 56- The petitioner has earlier also preferred a writ petition before this Court i.e. Writ Petition No.7187/2012 which was decided on 31/07/2012. The order passed by this Court dated 31/07/2012 reads as under:- In this writ petition the petitioner has challenged the proceedings dated 12.7.2012 to 13.7.2012 filed as Annexure P/4. The petitioner, a partnership firm, is holding and operating the mining lease for extraction of Manganese ore situated at Kali Dongri village of district Jhabua. The search and seizure were carried out in the business premises of the petitioner including the aforesaid mines on 20.6.2012 and 21.6.2012 under Section 132 of the Income Tax Act, 1961 (for short the Act ). The notice date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicability of the provisions of Section 133A of the Act in view of the provisions contained in MMDR Act is concerned, we are of the opinion that both the Acts operate in different field and the province of MMDR act does not exclude the application of Section 133A of the Act when the same are applied in the business place, which is a mine. The above view expressed by us is only for the purpose of deciding this petition. We have examined the aforesaid aspect of the matter and expressed tentative opinion only to find out if any case is made out for interference at this stage. The petitioner has challenged the proceedings dated 12.7.2012 to 13.7.2012 conducted under Section 133A of the Income Tax Act. As and when any report is prepared and used against the petitioner on the basis of the said survey, it would be open to the petitioner to raise all such grounds which are permissible in law before the appropriate forum. The concerned authority will decide such an objection independently without being influenced by the tentative opinion expressed by us in this order. Thus we are of the view that no ground for interference at this stage is made out. The writ petition is acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isconceived, as the opinion which has been expressed by this Court is merely a tentative opinion and a clear direction has been issued that the concerned authority will decide such an objection independently without being influenced by the tentative opinion expressed by this Court. In the circumstances, according to him, there is no necessity of modifying the order as prayed for. However, he fairly stated that in place of the words the writ petition is according dismissed in limine , it may be treated to and ordered to be writ petition is accordingly disposed of . We have considered the submissions made by the learned counsel for the parties and we are of the view that after examining the petitioner's contention, this Court vide the aforesaid order dated 31.07.2012 has found that no case for interference at that stage is made out. In the circumstances, the observations as aforesaid have been made. Be that as it may, we are making it further clear that whatever we have said in the order dated 31.07.2012 shall not in any way come in the way of the concerned authorities for deciding the petitioner's objections as already directed and the authorities shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed for disposal of I.A. No.13562/2013. I.A. No.13562/2013 has been filed for clarification of an earlier order passed on 10.7.2013. Initially when this application I.A. No.13562/2013 was taken up for consideration on 26.9.2013, this Court did not pass any order as a decision was taken to finally hear and decide the writ petition. However, for certain reasons that are available on record, hearing of the writ petition could not be conducted, therefore, in I.A. No.17309/2013 and I.A. No.10757/2014 prayer made is that the order passed on 26.9.2013 for postponing hearing on I.A. No.13562/2013 be recalled and orders be passed on the said application on merits. Even though the matter was heard at length by a coordinate Bench of this Court but now due to non availability of the Hon'ble Judges who heard the matter, the entire case has to be heard again. Accordingly, considering the facts as are available on record and taking note of the circumstances that have now emerged, we deem it appropriate to hear and decide I.A. No.13562/2013 on merit as early disposal of this case may not been possible now in the changed circumstances. Accordingly, the prayer made in I.A. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment proceeding initiated under Section 153A vide notice dated 28.5.2013. During the course of hearing Shri Kaushik took us through various documents and material available on record, the provisions of Section 153A and emphasized that in this petition what has challenged by the petitioner is only the valuation or valuer's report dated 24.7.2012 there is no challenge to the assessment proceedings initiated under Section 153A and as the assessment under Section 153A has to be concluded within the time schedule fixed under Section 153B, the order be clarified. Shri Kaushik invited our attention to following judgments : Commissioner of Income Tax, Gujarat Vs. Vijay Bhai N. Chandrani - 2013(3)5 ITR 713; Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement and Another -2010(4) SCC 772; Union of India Vs. Guwahati Carbon Ltd. -2012(11) SCC 651 in support of his contention and tried to emphasize that when only a show cause notice under Section 153A is issued, there cannot be any stay of the proceedings. He took us through various aspects of the matter in support of his contention. For the present we do not deem it necessary to go into those questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no legal impediment in doing so. Taking note of all these circumstances, we dispose of I.A. No.13562/2013 with the following clarification : The order passed by this Court on 10 th July, 2013 does not prohibit the department from proceeding with the assessment based on the notice under Section 153A issued on 28.5.2013. They are free to proceed with the assessment and as submitted by Shri Gopal Subramaniam, learned Senior Counsel appearing for the petitioners by granting them 15 days time to file their return from the date of receipt of certified copy of this order, the department is free to proceed with the assessment proceedings in accordance with law. However, while making the assessment no cognizance shall be taken of the impugned report of the valuer dated 24.7.2012 or any other report submitted by the said valuer respondent No.4 or his agency subsequent thereto in continuation or otherwise the impugned report dated 24.7.2012. The question of consideration of these reports are kept open to be decided at the time of final hearing of the matter. With the aforesaid the application I.A.No.13562/2013 stands disposed of. As the matter has to be heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lliwar is incorrect. In fact the said Shri Pilliwar was earlier in the panel of respondent bank, but due to his bad reputation no work was entrusted to him and the process to remove him from the panel of bank approved valuers was in progress. The following order was passed by the Division of this Court:- 1. This petition filed under Article 226 of the Constitution of India takes exception to the order passed by the Debts Recovery Appellate Tribunal (hereinafter referred to as Appellate Tribunal ) dated 08.10.2004 (Annexure- /1), as also by the Debts Recovery Tribunal (hereinafter referred to Tribunal ) dated 12.03.2004 (Annexure-P/3) and of the Recovery Officer dated 12.01.2004 (Annexure-P/2). The petitioner by amending the petition has asked for further appropriate writ or direction in relation to the order dated 28.10.2004 passed by the Recovery Officer in O.A. Execution No.14/2002. 2. Briefly stated, the petitioner is a Certificated Debtor. For recovering the amount from the petitioner, the Recovery Officer issued a public auction notice dated 15.11.2003, which was published on 10.12.2003 in the local newspapers. The auction notice refers to four properties, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has not disclosed all the material and relevant facts. The valuation report obtained by the Bank was from an approved Valuer. As the State of Chhattisgarh was established w.e.f. 01.11.2000 and Raipur was notified as the State Capital, there was spurt in the property price in Raipur. This was taken into account while fixing the reserve price and during the auction. It was contended on behalf of the Bank that the valuation certificate obtained by the petitioner from Pilliwar was incorrect. Infact, said Pilliwar was earlier in the panel of respondent-Bank, but, due to his bad reputation, no work was entrusted to him and the process to remove him from the panel of Bank approved valuers was in progress. The Bank contended that as the auction sale was fixed for 13.01.2004, no fault can be found with the view taken by the Recovery Officer to defer the consideration of objection regarding valuation of the properties, keeping in mind that the petitioner had approached only at the eleventh hour with the said objection (as objection was filed on 4.1.2004 before the Recovery Officer, though the auction notice was notified for 13.01.2004 and order of the Recovery Officer to auction t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the basis of valuation report of 2002. The Tribunal also considered the grievance of the petitioner about the formation of cartel and rejected the same since the auction was an open auction and was done in the presence of the petitioner. The Tribunal held that auction proceedings were conducted in accordance with the Rules and established procedure. The Tribunal also recorded the offer given by the respondent-Bank that, if the petitioner is still interested in getting the sale set aside, is free to pay the amount as per the petitioner s valuation report of Shri Pilliwar or 20% over and above the auction price. The petitioner, however, did not consent to that offer as well. Nevertheless, the Recovery Officer deferred the consideration of objection regarding valuation and for which reason, no fault can be found with that approach of the Recovery Officer. The Tribunal in pagaraph 12 of the judgment reiterated the position that the objection regarding correct valuation of the properties can still be considered by the Recovery Officer, which has been kept open. The Tribunal noted that the petitioner was not ready to get that objection decided before confirmation of sale as per Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madhya Pradesh High Court has been raised on the ground that the suit properties are situated in the State of Chhattisgarh and also the Debts Recovery Appellate Tribunal, which decided the appeal by the impugned judgment is at Allahabad (State of Uttar Pradesh). On merits, the respondent-Bank has reiterated the arguments, as were canvassed before the Recovery Officer and upto the Appellate Tribunal qua the objection of correct valuation of the property. As regards the first point argued by the counsel for the petitioner in this writ petition, it is submitted that this plea was not taken before the Recovery Officer or for that matter before the Tribunal or the Appellate Tribunal; and, therefore, should not be permitted for the first time before this Court. Besides, reliance is placed on the decision of the Supreme Court in Samir K. Shah and Another v. Union of India and Others, to buttress the argument that the petitioner was not entitled to notice or opportunity before determining the reserve price of the properties. 9. The Counsel appearing for the private respondent has adopted the arguments of the respondent-Bank, but, further submits that said respondent has acted upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of the debtor s property. There is no requirement for the creditor to consider any alternative valuation filed at the instance of the debtor. The reference to the decision of this Court in Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh by the appellant, is inapt. The decision relates to a sale in execution of a decree under Order 21 Rule 66 of the Code of Civil Procedure which expressly requires that the sale proclamation shall include the estimate of the value of the property if any given by either or both of the parties. It was in that context that this Court had said;(SCCp.132) It is very salutary that a person s property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knewthe value of his property and prevailing in the locality though exaggeration may at times be possible. 11. There is nocorresponding provision in Rule 52 or 53 of the Schedule to the Income Tax Act, 1961 or in any other provision which has been incorporated into the Act by Section 29. It cannot, therefore, be said that Regulation 60 is violative of Section 29 of the Act. (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al background, it was contended that the entire liability of remaining unpaid amount could not have been fastened upon the appellant. Further objection was taken on behalf of the appellant that the properties of the appellant were worth ₹ 2 lac which had been sold in auction at a throw-away price of ₹ 25,000/- only, that too, without following the procedure prescribed by law. For recovery of balance amount of loan, only a part of suit land could be sold. The Supreme Court no doubt referred to the provisions of the Act and the Rules and in paragraph 8 observed that merely because the recovery is in respect of public money, it should not mean that financial institutions which are concerned only with the recovery of their loans, may be permitted to behave like property dealers and be permitted to dispose of the secured assets in any unreasonable or arbitrary manner, in flagrant violation of the statutory provisions. This question does not arise for consideration in the present petition, especially when, the petitioner s objection regarding incorrect valuation of the suit properties is still pending before the Recovery Officer. 16. The argument proceeded that right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reflects that the survey done by Shri Pilliwar relates to twelve cases and in all these twelve cases heaps of material was lying at the factory and/or godown premises and volumetric analysis of the same was done by Shri Pilliwar. They do not relates to mines but they relates to godown. 65- There is no document on record to establish that domain expert was in fact an expert. The domain expert who is a private person was not an expert in conducting volumetric analysis and to submit volumetric analysis report. The Wealth Tax Act read with Wealth Tax Rules provides for qualification of registered valuers and Rule 8A(6) thereof provides for the following qualification of a valuer of Mines and Quarries. Rule 8A(6) reads as under:- Rule 8A(6)- A valuer of mines and quarries shall have the following qualifications, namely:- [(i) he must be a graduate in mining of a recognised university, or must possess a qualification recognised by the Central Government for recruitment to superior services or posts under the Central Government in the field of mining; and] (ii) he must be a person formerly employed- (a) in a post under Government as a gazetted officer, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Court was pleased to direct as under:- That apart we grant liberty to the parties to raise all the grounds before the Settlement Commission and it shall be for the Settlement Commission to proceed in accordance with law. 69- Thus, the contentions of the respondents that by withdrawal of Writ Petition No.8898/2013 the matter of challenge to the volumetric measurement report became final is incorrect both on facts and in law and is contrary to the liberty granted by this Hon'ble Court while permitting withdrawal on 13/04/2015 and also reiterated later on in its order dated 02/09/2016. 70- Volumetric Measurement Report has been relied upon in the order passed by the Settlement Commission and the Settlement Commission was so much influenced by the Volumetric Report submitted by a private person that statutory provision as contained under the Mineral Concession Rules, 1960 in respect of mining plan and in respect of mining operation has been brushed aside. 71- Not only this, there are fundamental errors in the Volumetric Measurement Report. The striping ratio has not been calculated properly and the petitioner has pointed out the following errors in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been under mining activity for more than 100 years. Commencing from 1902 and during this period, in addition to the 2 nos dump mining permit, 5 nos different parties have worked the area before S R Ferro Alloys. 3 Description In other works it can be safely concluded that the present lessee has carried out almost all of the mining in this mining lease area. This is not correct in the light of what has been clarified above. The extracts from the approved mining plan prepared by Shri Nikhil Pashine in 1998 read as follows The area was previously held under mining lease for more than 20 years and large dimensional pits are developed all over the area. The area was subject to intensive mining for manganese ore most of the mineral bearing area was already worked and hardly any area remains left out for exploration. The mining plan gives details of 6 nos pre-existing pits. 4 Description It was observed that overburden is being stored at lands other than the approved land. This is not correct. Permissions were duly taken for keeping overburden at Pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilized for this purpose. Not taking the same into account for working out the physical verification volume is therefore not correct. 8 Description Para 12 As per McGraw Hill Dictionary of Architecture Construction it is the ratio of the weight of a loose cubic yard (or meter) to the weight of the bank cubic yard (or metre). For the purpose of this report, the swell is taken and accordingly the correction is proposed to be carried out by multiplying the volume of excavated material by 0.7 to get the actual volume for consideration. (i) The swell factor is normally reckoned in terms of volume and not weight. (ii) The swell factor is different for soils and for rocks. For rocks, it also depends upon the type of rock. (iii) For blasted rock it also depends upon the efficiency of blasting and for normal blasted rock in the mines it is around 0.6. (iv) The McGraw Hill Dictionary of Architecture and Construction is not the right source for this reference relating to mining activity. (v) Even if the swell factor at 30% swell is taken, the correct way to carry out the correction is by dividing the volume of broken exca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of guess-work. The same applies for the middle pond also. 12 Final Results 1) Total excavated volume 2011466 m3 2) Total over burden volume 324057 cumt. 3) Difference between total excavated volume and total over burden volume 1087409 cumt. 4) Total manganese ore lumps quantity at mining lease area and Dinu's Land 23302.74 cumt. (i) 2011466 m3 cannot be taken as total excavated volume. It is the volume enclosed between the ground profile at the time of measurements and an assumed profile based on old maps of suspect reliability, accuracy and detail. (ii) 324057 cumt as total overburden volume lying in the area seems to be an underestimation. Use of total station is not the right methodology for volumetric measurements of small, irregularly shaped, and haphazardly spread dumps. (iii) 1687409 cumt which is calculated difference between total excavation volume and total overburden volume cannot be taken as the volume of material removed from the area as it does not take into account the loss of overburden material during the period due to natural flow, transportation outside the area, other uses including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the total income of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs in which both the disclosed and the undisclosed income would be brought to tax . iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pr the mining plan which again is impossible. 76- The Settlement Commission has also erred in rejecting the report dated 17/06/2012 prepared by the State Government at the directions of this Court. The said report was prepared by competent revenue and mining officers and that too at the direction of this Court and the report of the State Government highlighted the fact of inaccuracies in using 3D technique. 77- The Settlement Commission has also arrived at a perverse finding in respect of signature of IBM officials and partners of the petitioner on the survey report. This finding falls flat for the simple reason that survey was done on 12/07/2012 while the ex-parte report was prepared on 24/07/2012. How can the later report dated 24/07/2012 be signed on 12/07/2012. 78- The Settlement Commission has erred in upholding the survey report merely on the basis of withdrawal of writ petition filed before this Court. The Settlement Commission has erred in construing the withdrawal as admission of the petitioner without appreciating the fact that the withdrawal application was with specific liberty to raise all objections to the survey report before the Settlement Commission and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Income Tax Department and the averment of the petitioner without pointing out how the petitioner is at fault. The Settlement Commission thereafter, proceed to determine that the private Architect is an expert, his report is based on latest technology and the fact of withdrawal of petition by the petitioner and thereafter the application was treated as not being full and fair disclosure of facts. The Settlement Commission has even dismissed the report dated 17/06/2013 prepared by the State Government at the direction of this Court. The Settlement Commission has also dismissed the statutory mining plan prepared under The Mines and Minerals (Development and Regulation) Act, 1957 and approved by IBM. The entire order does not discuss the petitioner's submission or why the submissions were not true and full and this approach shows that the Settlement Commission was predetermined not to pass the final order but proceeded with singe minded determination to send the petitioner back to the Assessing Officer. 83- In light of the aforesaid, this Court is of the considered opinion that the order passed by the Settlement Commission dated 17/02/2017 passed under Section 245D(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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