ACIT, Cir.1, Aurangabad, Aurangabad V. Rameshwar Sahakari Sakhar Karkhana Ltd., Jalna

ITA 1227/PUN/2009

• Counselvise Citation: 122724514 RSA 2009
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 22-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 14-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: NARENDRA KUMAR
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I C SUDHIR, JUDICIAL MEMBER AND SHRI G S PANNU, ACCOUNTANT MEMBER ITA NO 1227/PN/09 (ASSTT. YEAR: 2006-07) ASSTT. COMMISSIONER OF I.T .. APPELLANT CIR.1, AURANGABAD VS. RAMESHWAR SSK LTD., .. RESPONDENT AT SIPORA BAZAR, TAL. BHOKARDAN, DIST. JALNA PAN AAAAS4494D APPELLANT BY : SHRI PRASANNA JOSHI RESPONDENT BY: SHRI NARENDRA KUMAR ORDER PER G.S. PANNU, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME-TAX (APPEALS), AURANGABAD DATED 21.7.2009 WHICH, IN TURN, HAS ARISEN OUT OF THE ORDER OF THE ASSE SSING OFFICER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (IN SH ORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2006-07. 2. GROUND NO. 1 RAISED IN ITS APPEAL BY THE REVENUE RE LATES TO THE DISALLOWANCE OF RS 7,25,07,832/- MADE BY THE ASSESSING OF FICER UNDER SECTION 40A(2)/37(1) OF THE ACT ON ACCOUNT OF EXCESS CANE P RICE PAID TO MEMBERS AND NON-MEMBERS OF THE SOCIETY. 3. AT THE TIME OF HEARING, IT WAS COMMON GROUND BETW EEN THE PARTIES THAT THIS ISSUE IS LIABLE TO BE SET ASIDE TO THE FILE OF THE COMMISSIONER OF 2 INCOME-TAX (APPEALS) FOR ADJUDICATING THE ISSUE AFRESH I N ACCORDANCE WITH THE DIRECTIONS OF THE HONBLE SUPREME COURT IN THE CAS E OF CIT V SHRI SATPUDA TAPI PARISAR SSK LTD. 326 ITR 42 (SC). WE ACC ORDINGLY SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEA LS) ON THIS ISSUE AND REMIT THE MATTER BACK TO HIS FILE FOR RE-ADJUD ICATING THE ISSUE IN THE LIGHT OF DIRECTIONS GIVEN BY THE HONBLE SUPREME CO URT IN THE CASE OF SHRI SATPUDA TAPI PARISAR SSK LTD. (SUPRA) AFTER AFF ORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN SO FAR AS SECOND GROUND IS CONCERNED, IT RELATES TO THE DISALLOWANCE OF A SUM OF RS 2,90,800/- REPRESENTING CON TRIBUTION PAID TO VASANT DADA INSTITUTE. THE ASSESSING OFFICER DISALLOWED TH E CLAIM, WHICH WAS MADE UNDER SECTION 35(1)(II) OF THE ACT ON THE PLE A THAT THE SAME WAS A MERE PROVISION AND THUS NOT DEDUCTIBLE HAVING REGAR D TO THE MEANING OF THE WORD PAID IN SECTION 43(2) OF THE ACT . THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS SINCE DELETED THE ADDITION, FOLLOWING THE DECISIONS IN THE FOLLOWING CASES: I) VIGHNAHAR SSK LTD V DCIT - ITA NOS 901 & 902/PN/95 DATED 15.10.2003; II) SHRI DOODHGANGA VEDGANGA SSK LTD. V DCIT ITA NO 297/PN/97 DATED 18.11.2003; III) PURNA SSK LTD. V ACIT ITA NO 440/PN/07 DATED 31.8.2007; IV) ACIT V SHANKAR SSK LTD ITA NO 805/PN/05 DATED 20 .8.2007; AND, V) HUTATMA JAYANTRAO PATIL SSK LTD. V. ACIT ITA NO 434/PN/06 DATED 12.10.2007. BEFORE US, NO DECISION TO THE CONTRARY HAS BEEN POINTED OUT. FOLLOWING THE PARITY OF REASONING GIVEN IN THE AFORESAID DECISIONS, WE AFFIRM THE VIEW 3 TAKEN BY THE COMMISSIONER OF INCOME-TAX (APPEALS). THIS G ROUND IS THUS DECIDED AGAINST THE REVENUE. 5. THE GROUND NO. 3 RELATES TO THE DISALLOWANCE OF RS 3,42,846/- OUT OF INTEREST PAID AS BEING ATTRIBUTABLE TO INTEREST FREE A DVANCES GIVEN FOR PURPOSES OF CANE HARVESTING AND TRANSPORT. WE FIND THAT THIS ISSUE STANDS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF OUR CO-ORDINATE BENCH IN THE CASE OF SHANKAR SSK LTD. NANDED IN ITA NO 805/PN/05 FOR THE ASSESSMENT YEAR 1993-94. FURTHER WE FIND THAT THE VIEW TAKEN BY THE TRIBUNAL I N THE CASE OF SHANKAR SSK LTD (SUPRA) IS FORTIFIED BY THE HONBLE JURISDICTI ONAL HIGH COURT IN THE CASE OF CIT V SAMARTH SAHAKARI SAKHAR KARKHANA LTD. 294 ITR 540 (BOM). RESPECTFULLY FOLLOWING THE AFORESAID JUDGMENT O F THE HONBLE JURISDICTIONAL HIGH COURT, WE AFFIRM THE VIEW TAKEN BY THE COMMISSIONER OF INCOME-TAX (APPEALS). REVENUE, THUS, FAILS ON THIS GROUND . 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED. DECISION WAS PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF JUNE, 2011. SD/- SD/- (I.C. SUDHIR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE: DATED: 30 TH JUNE, 2011 B COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A), AURANGABAD 4. THE CIT, AURANGAB AD 4. THE D.R, B BENCH,PUNE 5. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, PUNE 4