Dy. Comm. of Income-tax, Ahmednagar V. Kopergaon SSK Ltd., Ahmednagar

ITA 1563/PUN/2011

• Counselvise Citation: 156324514 RSA 2011
• Duration Of Justice: 1 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 05-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Y K BHASKAR
• Assessee Lawyers: K SRINIVASAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1563/ P N/ 20 11 ASSESSMENT YEAR : 2007 - 08 DY. COMMISSIONER OF INCOME TAX, AHM EDNAGAR CIRCLE, AHMEDNAGAR VS. KOPERGAON SAHAKARI SAKHAR KARKHANA LTD., GAUTAMNAGAR, POST - KOLPEWADI, TAL. - KOPERGAON, DISTT. - AHMEDNAGAR (APPELLANT) (RESPONDENT) PAN NO. AAATT3070H APPELLANT BY: SHRI Y.K. BHASKAR RESPONDENT BY: SHRI K SRINIVASAN DATE OF HEARING : 21 - 08 - 2013 DATE OF PRONOUNCEMENT : 26 - 08 - 2013 ORDER P ER R.S. PADVEKAR , JM : - THIS APPEAL IS FILED BY THE REVENUE CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT(A) - I, PUNE DATED 31 - 05 - 2011 FOR THE A.Y. 2007 - 08. THE REVENUE HAS TAKE N FOLLOWING TWO EFFECTIVE GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(APPEALS) GROSSLY ERRED IN DELETING THE ADDITION OF RS.25,05,395/ - MADE ON ACCOUNT OF SALE OF SUGAR TO THE MEMBERS AND NON - MEMBERS AT CONCESSIONAL RATE. 2. ON THE F ACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(APPEALS) GROSSLY ERRED IN DELETING THE ADDITION OF RS.2,47,39,803/ - MADE ON ACCOUNT OF KHODKI CHARGES PAID TO MEMBERS & NON - MEMBERS. 2. SO FAR AS GROUND NO. 1 IS CONCERNED THE LEARNED COUNSEL SUBMITS THA T IN THE CASE OF ANOTHER SUGAR KARKHANA I.E. P D. DR. VITHALRAO VIKHE PATIL SSK LTD. THE ISSUE WAS SET ASIDE TO THE FILE OF THE CIT(A) F OLLOWING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KRISHNA SSK LTD. AND OTHERS IN CIVIL APPEAL NO. 6950 OF 2012 ETC. JUDGMENT DATED 25 - 09 - 2012. THE LEARNED COUNSEL HAS FILED THE COPY OF THE ORDER PASSED BY ITAT, PUNE IN THE CASE OF DY. CIT AHMEDNAGAR CIRCLE VS. PD. DR. VITHALRAO VIKHE PATIL SSK LTD. ITA NO. 1564/PN/2011 ORDER DATED 2 ITA NO. 1563/PN/2011, KOPERGAON SAHAKARI SAKHAR KARKHANA LTD., AHMEDNAGAR 15 - 07 - 2013 WHICH IS PLACED ON RECORD. IN THE CASE OF PD. DR. VITHALRAO VIKHE PATIL SSK LTD. (SUPRA) THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE CIT(A). THE OPERATIVE PART OF THE ORDER OF THE TRIBUNAL IS AS UNDER: 3. SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE THE HONBLE SUPREME COURT IN THE CASE OF CIT BOMBAY VS. KRISHNA SSK LTD. AND OTHERS IN CIVIL APPEAL NO. 6950 OF 2012 ETC. WHEREIN VIDE ITS JUDGMENT DATED 25 - 9 - 2012 THE HONBLE SUPREME COURT REMITTED THE MATTER TO THE FILE OF THE CIT(A) WITH A DIRECTION T O RE - CONSIDER THE MATTER IN THE LIGHT OF THE FOLLOWING DIRECTIONS. THE QUESTION, WHETHER THE ABOVE DIFFERENCE BETWEEN THE FAIR MARKET PRICE AND THE CONCESSIONAL PRICE SHOULD OR SHOULD NSOT BE ADDED TO 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 CONCESSIONAL RATE HAS BECOME THE PRACTICE OR CUSTOM IN THE IN THE CO - OPERATIVE SUGAR INDUSTRY? AND WHETHER AN Y 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 PRODUCT, I.E. SUGAR, IS BEING FIXED FOR SALE OF FARMERS/CANE GROWERS/MEMBERS EACH YEAR ON MONTH TO - MONTH B ASIS, 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 PRODUCE RELEVANT DOCUMENTS. FOR THE ABOVE REASONS, WE REMIT THE CASES TO CIT(A) TO DE - NOVO CONSIDER THE MA TTER. 4. RESPECTFULLY FOLLOWING THE AFORESAID JUDGMENT OF THE HONBLE SUPREME COURT, WE RESTORE THE ISSUE TO THE FILE OF THE CIT(A) AND DECIDE THE MATTER AFTER TAKING INTO CONSIDERATION THE ABOVE DIRECTIONS GIVEN BY THE HONBLE SUPREME COURT. 3. WE, T HEREFORE, FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF PD. DR. VITHALRAO VIKHE PATIL SSK LTD. (SUPRA) RESTORE THE ISSUE TO THE FILE OF THE CIT(A) AND SET ASIDE THE MATTER IN THE LIGHT OF DIRECTION S GIVEN BY 3 ITA NO. 1563/PN/2011, KOPERGAON SAHAKARI SAKHAR KARKHANA LTD., AHMEDNAGAR THE HON'BLE SUPREME COURT. IN THE RESU LT, GROUND NO. 1 IS ALLOWED FOR STATISTICAL PURPOSES. 4. SO FAR AS THE GROUND NO. 2 IS CONCERNED THAT IS IN RESPECT OF DISALLOWANCE OF KHODKI CHARGES PAID TO MEMBERS AND NON - MEMBERS. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE B Y 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.) . W E, THEREFORE, CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DISMISS THE GROUND NO. 2 TAKEN BY THE REVENUE . 5. IN THE RESUL T, THE REVENUES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 26 - 08 - 20 1 3 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DA TED : 26 TH AUGUST, 20 1 3 COPY TO 1 DEPARTMENT 2 ASSESSEE 3 THE CIT(A) - I, PUNE 4 THE CIT (A) , PUNE 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE