ACIT, Pune V. SHREE SOMESHWAR SAHAKARI SAKHAR KARKHANA LTD., Pune

ITA 1297/PUN/2012

• Counselvise Citation: 129724514 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 23-12-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 15-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J S NAURATH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO S . 1296 & 1297 / P N/ 20 1 2 ASSESSMENT YEAR S : 2007 - 08 & 2008 - 09 THE ASSISTANT COM MISSIONER OF INCOME TAX, CIRCLE - 6, PUNE VS. SHREE SOMESHWAR SAHAKARI SAKHAR KARKHANA LTD., P.O. - SOMESHWARNAGAR, TALUKA - BARAMATI, DISTT. - PUNE (APPELLANT) (RESPONDENT) PAN NO. AAAAS2034B APPELLANT BY: SHRI J.S. NAURATH RESPONDENT BY: SHRI PRASANNA JOSHI DATE OF HEARING : 2 3 - 12 - 2013 DATE OF PRONOUNCEMENT : 30 - 12 - 2013 ORDER P ER R.S. PADVEKAR , JM : - TH ESE APPEALS ARE FILED BY THE R EVENUE CHALLENGING THE IMPUGNED ORDER S OF THE LD. CIT(A) - I II , PUNE DATED 14 - 02 - 2012 FOR THE A.Y S . 2007 - 08 & 2008 - 09 . THE FIRST ISSUE IS IN RELATING TO THE ADDITION MADE BY THE ASSESSING OFFICER WITH REFERENCE TO SALE OF SUGAR BY THE ASSESSEE AT CONCESSIONAL RATES TO ITS MEMBERS AND SHARE HOLDERS. THE ASSESSING OFFICER MADE THE ADDITION OF RS.15,00,920/ - IN THE A.Y . 2007 - 08 AND RS.1,06,006/ - IN THE A.Y. 2008 - 09. 2. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBMITS THAT THE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KRISHNA SSK LTD. AND OTHERS (2012 ) 27 TAXMANN.COM 162 (SC). THE HON'BLE SUPREME COURT HAS REMITTED THE MATTER TO THE FILE OF THE CIT(A) WITH DIRECTION TO RE - CONSIDER THE MATTER IN THE LIGHT OF THE FOLLOWING DIRECTIONS: THE QUESTION, WHETHER THE ABOVE DIFFERENCE BETWEEN THE FAIR MARKET PRICE AND THE CONCE SSIONAL PRICE SHOULD OR SHOULD NSOT BE ADDED TO 2 ITA NO S. 1296 & 1297/PN/2012, SHREE SOMESHWAR SAHAKARI SAKHAR KARKHANA LTD., PUNE THE TOTAL INCOME OF THE ASSESSEE SOCIETY, NEEDS TO BE RE - LOOKED BY CIT(A). APART FROM THE AFORESAID QUESTION, CIT(A) WOULD TAKE INTO ACCOUNT, WHETHER THE ABOVE MENTIONED PRACTICE OF SELLING SUGAR AT CONCESSI ONAL RATE HAS BECOME THE PRACTICE OR CUSTOM IN THE IN THE CO - OPERATIVE SUGAR INDUSTRY? AND WHETHER ANY RESOLUTION HAS BEEN PASSED BY THE STATE GOVERNMENT SUPPORTING THE PRACTICE? THE CIT(A) WOULD ALSO CONSIDER ON WHAT BASIS THE QUANTITY OF THE FINAL PRODU CT, I.E. SUGAR, IS BEING FIXED FOR SALE OF FARMERS/CANE GROWERS/MEMBERS EACH YEAR ON MONTH TO - MONTH BASIS, APART FROM DIWALI? THERE ARE SOME OF THE QUESTIONS WHICH HAVE NOT BEEN ADDRESSED BY THE AUTHORITIES BELOW IN THE IMPUGNED ORDERS. THE CIT(A) WOULD BE ENTITLED TO LOOK INTO THE ACCOUNTS AND VERIFY THE BASIS FOR SALE OF SUGAR AT CONCESSIONAL PRICE ON MONTH - TO - MONTH BASIS WE THEREFORE, KEEP ALL QUESTIONS OF LAW AND FACTS OPEN. NEEDLESS TO ADD, THE CIT(A) WOULD GIVE LIBERTY TO BOTH THE SIDES TO PRODUC E RELEVANT DOCUMENTS. FOR THE ABOVE REASONS, WE REMIT THE CASES TO CIT(A) TO DE - NOVO CONSIDER THE MATTER. 3. WE, THEREFORE, RESPECTFULLY FOLLOWING THE AFORESAID JUDGMENT OF THE HON'BLE SUPREME COURT, RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH DIR ECTION TO DECIDE THE ISSUE IN ACCORDANCE WITH THE ABOVE DIRECTIONS OF THE HON'BLE SUPREME COURT. 4. IN THE RESULT, THE RELEVANT GROUNDS ON THIS ISSUE ARE ALLOWED FOR THE STATISTICAL PURPOSES. 5. THE NEXT ISSUE IS IN RESPECT OF DISALLOWANCE OF KHODKI CHAR GES PAID TO MEMBERS AND NON - MEMBERS. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FA V OUR OF THE ASSESSEE BY THE DECISION OF THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. MANJARA SHETKARI S.S.K. LTD. 301 ITR 191 (BOM.) IN WHICH THERE LORDSHIPS FOLLOWED THE DECISIONS IN THE 3 ITA NO S. 1296 & 1297/PN/2012, SHREE SOMESHWAR SAHAKARI SAKHAR KARKHANA LTD., PUNE CASE OF CIT VS. SHREE PANCHAGANGA SAHAKARI SAKHAR KARKHANA LTD. 254 ITR 572 (BOM) . WE, THEREFORE, CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND RELEVANT GROUNDS TAKEN BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE PARTLY ALLOWED FOR THE STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 30 - 12 - 2013 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 30 TH DECEMBER, 20 1 3 COPY TO 1 DEPARTMENT 2 ASSESSEE 3 THE CIT(A) - I II , PUNE 4 THE CIT - III, PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE