Shri. Vithal Sahakari Sakhar Karkhana Ltd, Solapur V. Income-tax Officer, Ward - 2(1), Solapur

ITA 163/PUN/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6870 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 16-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

आयकर अपीलीय अधिकरण “ए” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA No.163/PUN/2018 धििाारण वर्ा / Assessment Year : 2014-15 Shri Vithal Sahakari Sakhar Karkhana Ltd., A/P. Venunagar, Gurusale, Tal.-Pandharpur, Dist.-Solapur – 413210 PAN : AAAAS3829H .......अपीलार्थी / Appellant बिाम / V/s. The Income Tax Officer, Ward – 2(1), Solapur ......प्रत्यर्थी / Respondent Assessee by : Shri Hanmat Dattatry Dhavle Revenue by : Shri S.P. Walimbe सुनवाई की तारीख / Date of Hearing : 14-07-2022 घोषणा की तारीख / Date of Pronouncement : 15-07-2022 आदेश / ORDER PER S.S. VISWANETHRA RAVI, JM : This appeal by the assessee against the order dated 20-10-2017 passed by the Commissioner of Income Tax (Appeals)-7, Pune [‘CIT(A)’] for assessment year 2014-15. 2. The assessee in the present appeal is engaged in the business of manufacturing and sale of sugar. The issues raised in this appeal are : i. Disallowance of sale of sugar at concessional rate. ii. VSI Contribution. iii. Disallowance made on account of section 80P(2)(d). 2 ITA No.163/PUN/2018, A.Y. 2014-15 3. The ld. AR, Shri Hanmat Dattatry Dhavle and the ld. DR, Shri S.P. Walimbe submitted at the outset that the issues raised in present appeal has already been considered and adjudicated by the Co-ordinate Bench of Tribunal in batch of appeals vide order dated 14-03-2019 out of which the lead case being Majalgaon Sahakari Sakhar Karkhana Ltd. Vs. ACIT in ITA No. 308/PUN/2018 for the assessment year 2013-14. 4. After hearing both the sides and after considering the order of Co- ordinate Bench in the case of Majalgaon Sahakari Sakhar Karkhana Ltd. Vs. ACIT (supra) etc., we observe that the issues raised in the present appeal has already been considered and decided by the Co-ordinate Bench. (i) Sale of Sugar at Concessional rate 5. We find that the issue of sale of sugar at concessional rate has also been considered by the Co-ordinate Bench in the case of Majalgaon Sahakari Sakhar Karkhana Ltd. Vs. ACIT (supra) and has held as under : “11. Having heard both the sides and gone through the relevant material on record, it is observed that the AO made addition of the difference between the market price and the concessional price at which sugar (final product) was given to farmers and cane growers. In this regard, it is observed that this issue has been considered by the Hon’ble Supreme Court in the case of CIT Vs. Krishna Sahakari Sakhar Karkhana Limited (2012) 27 taxmann.com 162 (SC). Vide judgment dated 25-09-2012, the Hon’ble Supreme Court noticed that the difference between the average price of sugar sold in the market and the price of sugar sold by the assessee to its members at concessional rate was taxed by the Department under the head “Appropriation of profit”. The Hon’ble Summit Court remitted the matter to the CIT(A) for considering, inter alia,: “whether the abovementioned practice of selling sugar at concessional rate has become the practice or custom 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 product, i.e. sugar, is being fixed for sale to farmers/cane growers/Members each year on month-to- month basis, apart from others from Diwali?” The issue under consideration can be decided by an appropriate lower authority only on the touchstone of the relevant factors noted in the above judgment. In our considered opinion, it would be just and fair if the impugned orders on this score are set aside and the matter is restored to the file of AOs, instead of to the CITs(A), for fresh consideration as to whether the difference between the average price of sugar sold in the market and that sold to members at concessional rate is appropriation of profit or not, in the light of the directions given by the Hon’ble Supreme Court in the case of Krishna Sahakari Sakhar Karkhana 3 ITA No.163/PUN/2018, A.Y. 2014-15 Limited (supra). Restoration to the AO is necessitated because, following the judgment of the Hon’ble Apex Court in the case of Tasgaon Taluka S.S.K. Ltd. (supra), we have remitted the issue of payment of excessive price to the file of AO, and as such, the instant issue cannot be sent to ld. CIT(A) as it would amount to simultaneously sending one part of the same assessment order to the AO and other to the CIT(A), which is not appropriate. We order accordingly.” 6. Both the sides have stated at the Bar that the issue raised in present appeal is identical to the one already decided by the Co-ordinate Bench. Thus, in view of the above order by Co-ordinate Bench this issue is restored back to the file of Assessing Officer for de-novo adjudication in similar terms. The Assessing Officer shall grant reasonable opportunity of hearing to the assessee, in accordance with law. (ii) VSI Contribution 7. The ld. AR submitted that the issue of provision for VSI contribution has been decided by the Co-ordinate Bench in favour of the assessee by following the order of Tribunal in the case of Bhima S.S.K. Ltd. in ITA No. 1414/PUN/2000. The ld. DR fairly admitted that this issue has been considered by the Co-ordinate Bench. The Co-ordinate Bench while deciding this issue in favour of assessee has observed as under : “18. We have heard both the sides and gone through the relevant material on record. It is found that the ld. CIT(A) has determined this issue in favour of the assessee by following the order passed by the Pune Benches of the Tribunal in the case of Bhima S.S.K. Ltd. (supra). No material has been placed on record to show that this order of the Tribunal has been reversed or modified in any manner by the Hon’ble High Court. Respectfully following the precedent, we decide this issue in favour of the assessee.” 8. Thus, in view of the above findings of the Tribunal and submissions of both the sides, the issue is decided in favour of the assessee. (iii) Disallowance on section 80P(2)(d) 9. The assessee claimed deduction of Rs.1,08,638/- u/s. 80P(2)(d) of the Act, but, however, the AO denied the same as the interest received from 4 ITA No.163/PUN/2018, A.Y. 2014-15 Bank of India which is not allowable u/s. 80P(2)(d) of the Act. As it appears from the impugned order that the assessee did not prosecute the said ground before the CIT(A) as it was dismissed as not pressed. Since, the interest derived from Bank of India as it is not allowable u/s. 80P(2)(d) of the Act, thus, we find no infirmity in the order of AO. Accordingly, ground No. 4 is dismissed. 10. The ld. AR submits that the assessee is not interested to prosecute the ground No. 3. Accordingly, the same is dismissed as not pressed. 11. In the result, the appeal of the assessee is partly allowed. Order pronounced in the open court on 15 th July, 2022. Sd/- Sd/- (Inturi Rama Rao) (S.S. Viswanethra Ravi) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; दिनाांक / Dated : 15 th July, 2022. रदव आदेश की प्रधिधलधप अग्रेधर्ि / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The CIT(A)-7, Pune 4. The Pr. CIT-6, Pune 5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, “ए” बेंच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गार्ड फ़ाइल / Guard File. //सत्यादपत प्रदत// True Copy// आिेशानुसार / BY ORDER, वररष्ठ दनजी सदचव / Sr. Private Secretary आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune