ACIT, Cochin v. Metrolla Iron Strips Co. P.Ltd, Muvattupuzha

ITA 557/COCH/2011 | 2005-2006
Pronouncement Date: 27-07-2012 | Result: Dismissed

Appeal Details

RSA Number 55721914 RSA 2011
Assessee PAN AACCM0044P
Bench Cochin
Appeal Number ITA 557/COCH/2011
Duration Of Justice 9 month(s) 20 day(s)
Appellant ACIT, Cochin
Respondent Metrolla Iron Strips Co. P.Ltd, Muvattupuzha
Appeal Type Income Tax Appeal
Pronouncement Date 27-07-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 27-07-2012
Date Of Final Hearing 26-06-2012
Next Hearing Date 26-06-2012
Assessment Year 2005-2006
Appeal Filed On 07-10-2011
Judgment Text
1 METROLLA IRON & STRIPS CO LTD IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T.A NO. 162/COCH/2010 - A.Y. 2004-05 I.T.A NO. 163/COCH/2010 - A.Y. 2005-06 M/S METROLLA IRON & STRIPS CO LTD VS ACIT CIR.1( 3) C/O M/S R KRISHNA IYER & CO CAS ALLEPPEY 134 JYOTHY PANAMPILLY NAGAR KOCHI 682 036 PAN : AACCM0044P (APPELLANT) (RESPONDENT) I.T.A NO. 409/COCH/2010 - A.Y. 2004-05 I.T.A NO. 557/COCH/2011 - A.Y. 2005-06 I.T.A NO. 558/COCH/2011 - A.Y. 2008-09 A.C.I.T. CIR.1(3) VS M/S METROLLA IRON & STRIP S CO LTD ALLEPPEY MUVATTUPUZHA (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R KRISHNA IYER REVENUE BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 26-06-2012 DATE OF PRONOUNCEMENT : 27-07-2012 O R D E R PER N.R.S. GANESAN (JM) THE ASSESSEE FILED THE APPEALS FOR THE ASSESSMENT YEARS 2004-05 AND 2005- 06 AGAINST THE ORDER OF THE ADMINISTRATIVE COMMISSI ONER PASSED U/S 263 OF THE ACT. THE DEPARTMENT HAS FILED THE APPEALS FOR THE ASSESSMENT YEARS 2004-05 2005-06 & 2008-09 AGAINST THE ORDERS OF THE COMMISSIO NER OF INCOME-TAX(A). SINCE COMMON ISSUES ARISE FOR CONSIDERATION IN ALL THE APPEALS WE HEARD THE SAME TOGETHER AND DISPOSE OF THEM BY THIS COMMON ORDER. 2 METROLLA IRON & STRIPS CO LTD 2. LET US FIRST TAKE THE DEPARTMENTAL APPEALS FOR TH E ASSESSMENT YEARS 2004- 05 2005-06 & 2008-09 ARISING OUT OF THE ORDERS OF TH E COMMISSIONER OF INCOME- TAX(A). 3. SMT. VIJAYAPRABHA THE LD.DR SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION U/S 80IB OF THE ACT. THE ASSESSING OFFIC ER DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT EM PLOYED MORE THAN 10 WORKERS DURING THE YEAR FOR ITS MANUFACTURING PROCES S. ACCORDING TO THE LD.DR FOR CLAIMING DEDUCTION U/S 80IB THE ASSESSEE HAS TO NE CESSARILY EMPLOY MORE THAN 10 EMPLOYEES IN THE MANUFACTURING PROCESS CARRIED O N WITH THE AID OF POWER. ACCORDING TO THE LD.DR MAJORITY OF THE WORKERS ARE EMPLOYED THROUGH CONTRACTOR AND PAYMENT OF WORKERS ARE ALSO MADE THROUGH CONTRAC TOR. THEREFORE THE ASSESSING OFFICER FOUND THAT THE ASSESSEE IS NOT EL IGIBLE FOR DEDUCTION U/S 80IB OF THE ACT. HOWEVER THE COMMISSIONER OF INCOME-TAX(A) FOUND THAT THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2002-03 FOUND THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT. ACCORD ING TO THE LD.DR UNLESS AND UNTIL IT IS SHOWN THAT THE ASSESSEE HAS EMPLOYED MORE THA N 10 WORKERS THE CLAIM OF DEDUCTION U/S 80IB CANNOT BE ALLOWED. 4. ON THE CONTRARY SHRI KRISHNA IYER THE LD.REPRES ENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE VERY SAME ISSUE WAS CONSIDERED B Y THIS TRIBUNAL FOR THE ASSESSMENT YEARS 2002-03 AND 2005-06. THIS TRIBUNAL AFTER TAKING INTO CONSIDERATION THE CASUAL EMPLOYEES AND OTHER WORKERS INCLUDING ELECTRICIAN FOUND THAT THE ASSESSEE HAS EMPLOYED MORE THAN 10 W ORKERS THEREFORE IS ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT. ACCORD INGLY THE APPEALS OF THE DEPARTMENT WERE DISMISSED BY THIS TRIBUNAL IN ITA N OS 811 & 812/COCH/2008 DATED 24 TH SEPTEMBER 2009. THIS TRIBUNAL AFTER REFERRING T O THE JUDGMENT OF THE GUJARAT HIGH COURT IN COMMISSIONER OF INCOME-TAX VS P RITHVIRAJ BHOORCHAND 280 3 METROLLA IRON & STRIPS CO LTD ITR 94 FOUND THAT THE CONTRACT AND CASUAL WORKERS DE PLOYED IN THE WORK PLACE COULD BE CONSIDERED AS WORKERS OF THE ASSESSEE IF TH E OVERALL ACTIVITIES ARE RESTED WITH THE ASSESSEE. ACCORDING TO THE LD.REPRESENTA TIVE THE CASUAL AND CONTRACT WORKERS ARE MORE THAN 10 THEREFORE THE COMMISSIONE R OF INCOME-TAX(A) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE U/S 80IB OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ADMINISTRATI VE COMMISSIONER IN EXERCISE OF HIS JURISDICTION U/S 263 OF THE INCOME-TAX ACT FO UND THAT THE EMPLOYEES ON THE ROLLS OF CONTRACTORS CANNOT BE CONSIDERED AS WORKERS FOR GIVING RELIEF U/S 80IB OF THE ACT. THE COMMISSIONER OF INCOME-TAX HAS APPAREN TLY PLACED HIS RELIANCE ON THE JUDGMENTS OF THE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME- TAX VS SAWYERS ASIA LTD (1980) 122 ITR 259 (BOM) A ND COMMISSIONER OF INCOME- TAX VS ORMERODS (I)(P) LTD (1989) 176 ITR 470 (BOM) AND THE DECISION OF THE BANGALORE BENCH OF THIS TRIBUNAL IN SREEKRISHNA PLAS TIC INDUSTRIES PVT LTD VS ITO 14 ITD 121 (BANG). 6. WE HAVE CAREFULLY GONE THROUGH THE DECISION OF T HIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2002-03 AND 2005-06 IN ITA NOS 811 & 812/COCH/2008 (SUPRA). THIS TRIBUNAL AFTER CONSID ERING THE JUDGMENT OF THE KARNATAKA HIGH COURT IN COMMISSIONER OF INCOME-TAX VS K.G. YEDIURAPPA & CO 152 ITR 152 (BANG) AND THE JUDGMENT OF THE GUJARAT H IGH COURT IN COMMISSIONER OF INCOME-TAX VS V.B. NARAINA & CO 252 ITR 884 (GUJ) AS ALSO THE JUDGMENT OF THE ANDHRA PRADESH HIGH COURT IN THE CASE OF COMMISSION ER OF INCOME-TAX VS ABHIRAMI COTTON MILLS P LTD 220 ITR 84 (AP) FOUND T HAT PAYMENT OF WAGES BY THE EMPLOYER DIRECTLY TO THE LABOURER WAS NOT THE PARAM OUNT CRITERIA FOR ESTABLISHING EMPLOYER EMPLOYEE RELATIONSHIP AND WHAT IS REQUIRED IS THE ULTIMATE CONTROL OVER THE FORCES. THE TRIBUNAL FOUND THAT EVEN THOUGH TH E ASSESSEE HAS EMPLOYED CASUAL AND CONTRACT LABOURERS THE ULTIMATE CONTROL WAS RESTED WITH THE ASSESSEE 4 METROLLA IRON & STRIPS CO LTD THEREFORE THE CASUAL AND CONTRACT LABOURERS ARE AL SO CONSIDERED FOR THE PURPOSE OF COMPUTING THE TOTAL NUMBER OF EMPLOYEES. THIS T RIBUNAL HAS ALSO PLACED RELIANCE ON THE JUDGMENT OF THE GUJARAT HIGH COURT I N PRITHVIRAJ BHOORCHAND (SUPRA). AFTER TAKING INTO CONSIDERATION THE JUDGME NT OF THE ALLAHABAD HIGH COURT IN THE CASE OF R&P EXPORTS VS COMMISSIONER OF INCOM E-TAX 279 ITR 536 (ALL) THIS TRIBUNAL FOUND THAT THERE ARE CONFLICTING JUDICIAL OPINION BY VARIOUS HIGH COURTS. THEREFORE ULTIMATELY BY FOLLOWING THE JUDGMENT OF THE APEX COURT IN COMMISSIONER OF INCOME-TAX VS VEGETABLE PRODUCTS 88 ITR 192 (SC) THE TRIBUNAL FOUND THAT IN VIEW OF THE CONFLICTING JUDICIAL PRON OUNCEMENTS OF VARIOUS HIGH COURTS THE VIEW WHICH IS FAVOURABLE TO THE ASSESSE E SHOULD BE ADOPTED. ACCORDINGLY BY PLACING RELIANCE ON THE JUDGMENT OF THE GUJARAT HIGH COURT IN THE CASE OF PRITHVIRAJ BHOORCHAND (SUPRA) THE TRIBUNAL FOUND THAT CASUAL AND CONTRACT LABOURERS SHOULD BE TAKEN INTO ACCOUNT FOR THE PURPO SE OF COUNTING THE NUMBER OF EMPLOYEES EMPLOYED BY THE ASSESSEE WHILE COMPUTI NG DEDUCTION U/S 80IB OF THE ACT. THE TRIBUNAL HAS ALSO FOUND THAT ELECTRIC IAN IS ALSO INCLUDED IN THE EMPLOYEES LIST. THEREFORE HE SHOULD ALSO BE INCL UDED WHILE CALCULATING THE NUMBER OF EMPLOYEES. THE TRIBUNAL HAS ALSO FOUND T HAT EMPLOYEES WORKING ON ROTATION ALSO DO NOT ADVERSELY AFFECT THE CASE OF T HE ASSESSEE. 7. IN VIEW OF THE ABOVE FINDING OF THE CO-ORDINATE B ENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2002-03 AND 2005-06 THE CASUAL AND CONTRACT EMPLOYEES INCLUDING ELECTRICIAN HAS TO BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF CALCULATING NUMBER OF EMPLOYEES. ONCE T HE CONTRACT AND CASUAL EMPLOYEES ARE TAKEN INTO ACCOUNT THE NUMBER OF EMPL OYEES WOULD BE MORE THAN 10 THEREFORE THE ASSESSEE IS ELIGIBLE FOR DE DUCTION U/S 80IB OF THE ACT. ACCORDINGLY BY FOLLOWING THE DECISION OF THE CO-ORD INATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2002-03 AND 2005-06 AND FOR THE 5 METROLLA IRON & STRIPS CO LTD REASONS STATED THEREIN WE UPHOLD THE ORDER OF THE C OMMISSIONER OF INCOME- TAX(A) . 8. THE NEXT GROUND OF APPEAL IS WITH REGARD TO BURN ING LOSS. 9. SMT. VIJAYAPRABHA THE LD.DR SUBMITTED THAT THE ASSESSEE CLAIMED BURNING LOSS AT 16% FOR THE ASSESSMENT YEAR 2004-05 ON THE C ONSUMPTION OF RAW MATERIAL. ACCORDING TO THE LD.DR THE INDUSTRIAL AVERAGE OF B URNING LOSS IS FROM 4.46% TO 10.51%. ACCORDING TO THE LD.DR THE ASSESSEE IS US ING IMPORTED SCRAP AND THEREFORE THE ASSESSEE WOULD GET A BETTER YIELD WH EN COMPARED TO OTHER INDUSTRIAL UNDERTAKING AND THEREFORE THE BURNING LO SS WOULD BE LESS THAN THE INDUSTRIAL AVERAGE. THEREFORE ACCORDING TO THE LD .DR 10% INDUSTRIAL AVERAGE ADOPTED BY THE ASSESSING OFFICER AS THE BURNING LOS S IS JUSTIFIED. THEREFORE THE COMMISSIONER OF INCOME-TAX(A) IS NOT CORRECT IN FIXI NG THE BURNING LOSS AS CLAIMED BY THE ASSESSEE. ACCORDING TO THE LD.DR THE BURNI NG LOSS CLAIMED BY THE ASSESSEE AT 16% FOR THE ASSESSMENT YEAR 2004-05 IS HIGHLY EXC ESSIVE THEREFORE THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A) CANNOT BE SUST AINED. 9.1. FOR THE ASSESSMENT YEAR 2005-06 THE ASSESSEE HI MSELF HAS CLAIMED BURNING LOSS AT 10.53%. HOWEVER THE ASSESSING OFFICER FIX ED THE BURNING LOSS AT 5.5%. THEREFORE THE EXCESS BURNING LOSS CLAIMED BY THE A SSESSEE AT 5.03% WAS ADDED TO THE IRON INGOTS PRODUCED FOR THE YEAR UNDER CONS IDERATION. BY FOLLOWING THE ORDER OF COMMISSIONER OF INCOME-TAX(A) FOR ASSESSMEN T YEAR 2004-05 HE DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 9.2 FOR THE ASSESSMENT YEAR 2008-09 THE ASSESSEE CL AIMED BURNING LOSS AT 10.89%. THE ASSESSING OFFICER FIXED THE LOSS AT 5. 5% AND THE EXCESS LOSS CLAIMED TO THE EXTENT OF 5.39% WAS ADDED TO THE IRON INGOT PRODUCTION. THE COMMISSIONER OF INCOME-TAX(A) DELETED THE ADDITION M ADE BY THE ASSESSING OFFICER. 6 METROLLA IRON & STRIPS CO LTD 10. THE ONLY SUBMISSION OF THE LD.DR IS THAT THE AS SESSING OFFICER FIXED THE BURNING LOSS ON THE BASIS OF THE INDUSTRIAL AVERAGE . IN THIS CASE ACCORDING TO LD.DR THE ASSESSEE HAS UTILIZED 74% OF THE IMPORTED SCRAP THEREFORE THE BURNING LOSS WOULD BE VERY LESS. THEREFORE ACCORDING TO T HE LD.DR THE COMMISSIONER OF INCOME-TAX(A) IS NOT JUSTIFIED IN DELETING THE ADDIT ION MADE BY THE ASSESSING OFFICER. 11. ON THE CONTRARY SHRI KRISHNA IYER THE LD.REPRE SENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS FILED COMPARABLE CA SE PARTICULARLY IN CASE OF STEEL COMPLEX LTD A KERALA GOVERNMENT UNDERTAKING COM PANY. THE ASSESSEE HAS ALSO MAINTAINED R.G. REGISTER UNDER THE CENTRAL EXC ISE ACT AND ALL OTHER REGISTERS FOR THE PURPOSE OF VALUE ADDED TAX. BOTH CENTRAL E XCISE DEPARTMENT AND SALES- TAX AUTHORITIES HAVE NOT DISPUTED THE BURNING LOSS CLAIMED BY THE ASSESSEE. ACCORDING TO THE LD.REPRESENTATIVE IN THE ABSENCE OF ANY ALLEGATION THAT INCOME WAS ESCAPED IT IS NOT CORRECT TO SAY THAT THE BURN ING LOSS CLAIMED BY THE ASSESSEE IS HIGHLY EXCESSIVE. REFERRING TO THE DECISION OF THE AHMEDABAD BENCH CESTAT IN HIPOLIN LTD VS COMMISSIONER OF CENTRAL EXCISE AHME DABAD 2012 26 S.T.R 191 (TRIB. AHMD.) THE COPY OF WHICH IS FILED BY THE ASSESSEE THE LD.REPRESENTATIVE SUBMITTED THAT WHEN THE ENTIRE INPUT WAS REFLECTED IN THE R.G. REGISTERS THERE IS NO QUESTION OF DOUBTING THE LOSS CLAIMED BY THE ASS ESSEE. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY THE ASSESSEE IS IN THE BUSINESS OF MANUFACTURING IRON INGOTS. FROM THE ORDER OF THE A SSESSING OFFICER IT APPEARS THAT THE ASSESSING OFFICER BY TAKING INTO CONSIDERATION ALL THE RESEARCH REPORT PRODUCED BY UNIVERSITIES CAME TO THE CONCLUSION THA T THE AVERAGE INDUSTRIAL BURNING LOSS WHILE CONVERTING SCRAP IRON INTO IRON INGOTS IS 4.5% WITH A TOLERANCE LIMIT OF + / - 2%. FROM THE ASSESSMENT ORDER IT APP EARS THAT THE ASSESSING OFFICER HAS NOT TAKEN INTO CONSIDERATION ANY SPECIFIC INDUST RY WHICH SUFFERS BURNING LOSS 7 METROLLA IRON & STRIPS CO LTD IN THE PROCESS OF MANUFACTURING IRON INGOTS. THE A SSESSING OFFICER HAS CONSIDERED THE THEORETICAL RESEARCH PAPER PREPARED BY THE UNIV ERSITIES. IT IS COMMON KNOWLEDGE THAT WHEN THE SCRAP IRON IS BURNT FOR THE PURPOSE OF PRODUCING IRON INGOTS THERE WILL BE A LOSS DUE TO IMPURITY. THIS LOSS WOULD DEPEND UPON THE RAW MATERIAL USED AND THE PROCESS OF CONVERSION ADOPTED BY THE ASSESSEE. THE CONTENTION OF THE LD.DR IS THAT THE ASSESSEE IS MAI NLY USING IMPORTED SCRAP; THEREFORE THE LOSS SHOULD BE BARE MINIMUM. WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE LD.DR. MERELY BECAUSE THE SCRAP WAS IMPORTED FROM FOREIGN COUNTRY THERE CANNOT BE ANY GUARANTEE THAT THE BUR NING LOSS WOULD BE LESS. THERE IS NO SUCH PRESUMPTION THAT THE RAW MATERIALS IMPORTED FROM FOREIGN COUNTRY WILL HAVE LESS IMPURITY. IMPURITY WOULD DE PEND UPON THE NATURE OF THE SCRAP USED BY THE ASSESSEE. UNFORTUNATELY NO MATE RIAL IS AVAILABLE ON RECORD TO POINT OUT THE PERCENTAGE OF IMPURITY IN THE SCRAP I MPORTED BY THE ASSESSEE. IT IS ALSO PRACTICALLY IMPOSSIBLE TO FIND OUT THE EXACT I MPURITY AT THIS STAGE. THE ASSESSEE HAS FILED THE BURNING LOSS CLAIMED BY THE KERALA GOVERNMENT COMPANY VIZ. M/S STEEL COMPLEX LTD KOZHIKODE. THE GOVERNMEN T COMPANY CLAIMED BURNING LOSS FOR THE ASSESSMENT YEAR 2004-05 AT 12.4 5%; FOR THE ASSESSMENT YEAR 2005-06 AT 13.25% AND FOR THE ASSESSMENT YEAR 2006-07 AT 13.81%. THE ASSESSEE HAS ALSO MADE AN ATTEMPT TO CLARIFY THAT M/S STEEL COMPLEX LTD MAKES PELLETS FROM SCRAP WHEREAS THE ASSESSEE IS PRODUCING IRON I NGOTS. THE ASSESSEE HAS ALSO EXPLAINED BEFORE THE LOWER AUTHORITIES THAT PELLET MAKING YIELD WILL BE 3.5% MORE AND HENCE THE BURNING LOSS WILL BE LESS BY 3.5%. A FTER COMPARING THIS BURNING LOSS CLAIMED BY M/S STEEL COMPLEX LTD THE ASSESSEE EXPL AINED BEFORE THE LOWER AUTHORITIES THAT THE INDUSTRIAL AVERAGE WOULD BE 7. 45% TO 18.18%. 13. CONVERSION OF SCRAP INTO IRON INGOTS NEEDS MELT ING OF THE SCRAP AND CONVERTING THE SAME INTO IRON INGOTS. IN THAT PROC ESS THE IMPURITY EMBEDDED ON THE SCRAP WOULD BE ELIMINATED AND THAT WOULD BE A L OSS TO THE ASSESSEE. THE 8 METROLLA IRON & STRIPS CO LTD PERCENTAGE OF LOSS WOULD DEPEND UPON THE IMPURITY W HICH IS EMBEDDED IN THE RAW MATERIAL VIZ. IRON SCRAP. THEREFORE THERE CA NNOT BE ANY SPECIFIC RULE TO FIX THE PERCENTAGE OF IMPURITY IN THE RAW MATERIAL. IT WOULD DEPEND UPON THE EXACT NATURE OF THE RAW MATERIAL USED BY THE ASSESSEE. I N THE ABSENCE OF ANY MATERIAL THAT THE ASSESSEE HAS NOT SUFFERED ANY LOSS IN THE PROCESS OF CONVERSION OF SCRAP INTO IRON INGOTS THIS TRIBUNAL IS OF THE OPINION T HAT THE BOOK RESULTS HAS TO BE ACCEPTED. IN OTHER WORDS THE ASSESEE IS MAINTAINI NG THE REGISTER FOR PURCHASE OF RAW MATERIAL AND PRODUCTION OF IRON INGOTS. THE BO OK RESULTS SHOW LOSS. THIS LOSS CANNOT BE DOUBTED BY COMPARING THE THEORETICAL RESE ARCH MADE BY THE UNIVERSITIES. THEORETICAL RESEARCH MADE BY THE UNI VERSITIES MAY BE TO SOME EXTENT NEARER TO THE ACTUAL BURNING LOSS SUFFERED B Y THE COMPANIES BUT THERE CANNOT BE ANY STANDARD FORMULA TO FIX THE BURNING LOSS. AS WE HAVE ALREADY DISCUSSED THE BURNING LOSS WOULD DEPEND UPON THE N ATURE OF THE RAW MATERIAL AND THE PROCESS ADOPTED FOR CONVERSION OF SCRAP INT O IRON INGOTS. THERE MAY BE VARIOUS FACTORS WHICH WOULD REDUCE THE BURNING LOSS OR INCREASE THE BURNING LOSS. UNLESS SPECIFIC MATERIALS ARE AVAILABLE WITH THE AS SESSING OFFICER TO SAY THAT THE BURNING LOSS CLAIMED BY THE ASSESSEE IS HIGHLY EXCE SSIVE OR THERE WAS NO LOSS AT ALL THIS TRIBUNAL IS OF THE OPINION THAT THE DISAL LOWANCE MADE BY THE ASSESSING OFFICER CANNOT BE SUSTAINED. THIS TRIBUNAL FIND TH AT THE COMMISSIONER OF INCOME- TAX(A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. ACCORDINGLY THE ORDER OF THE LOWER AUTHORITY IS CO NFIRMED. 14. IN THE RESULT THE APPEALS OF THE REVENUE IN IT A NOS 409/COCH/2010 AND 557 & 558/COCH/2011 ARE DISMISSED. 15. NOW LET US TAKE THE ASSESSEES APPEALS IN ITA NO S 162 & 163/COCH/2010 FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 WHICH AR E DIRECTED AGAINST THE ORDERS OF THE ADMINISTRATIVE COMMISSIONER PASSED U/ S 263 OF THE ACT. SINCE WE HAVE CONFIRMED THE ORDERS OF THE COMMISSIONER OF IN COME-TAX(A) IN RESPECT OF 9 METROLLA IRON & STRIPS CO LTD THE VERY SAME ISSUES FOR THE ASSESSMENT YEARS 2004-0 5 AND 2005-06 THE APPEALS OF THE ASSESSEE AGAINST THE ORDERS OF THE ADMINISTR ATIVE COMMISSIONER BECOME INFRUCTUOUS. THEREFORE THE APPEALS OF THE ASSESSE E ARE DISMISSED. 17. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE AND THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH JULY 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN DT : 27 TH JULY 2012 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH