The ACIT, Circle-1(1), Rajkot V. M/s. Bileshwar Khand Udhyog Khedut Sahakari Mandali Ltd., Kodinar, Kodinar, Dist. Gir - Somnath

ITA 62/RJT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 4349 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 13-03-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH KUMAR PANDEY
• Keywords: Set aside
• Section: 143(2); 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH VIRTUAL COURT] Before: Ms. Suchitra Kamble, Judicial Member And Shri Waseem Ahmed, Accountant Member The ACIT, Circle-1(1), Rajkot (Appellant) Vs Shri Bileshwar Khand Udyog Khedut Sahakari Mandali, 1 st Floor Administrative Building, Veraval Road, At Kodinar, Dist Gir Somnath PAN: AAAAB0936H (Respondent) Assessee by: Shri Mehul Ranpura, A.R. Revenue by: Shri Ashish Kumar Pandey, Sr. D.R. Date of hearing : 08-01-2024 Date of pronouncement : 10-01-2024 आदेश/ORDER PER : SUCHITRA KAMBLE, JUDICIAL MEMBER:- These two appeals filed are against the order dated 20- 01-2023 passed by National Faceless Appeal Centre (NFAC), Delhi for assessment years 2011-12 and 2012-13. ITA Nos. 61 & 62/Rjt/2023 Assessment Years 2011-12 & 2012-13 I.T.A Nos. 61 & 62/Rjt/2023 A.Y. 2011-12 & 2012-13 Page No ACIT vs. M/s. Bileshwar Khand Udhyog Khedut Sahakari Mandali Ltd. 2 2. The grounds of appeals are as under:- ITA No. 61/Rjt/2023 A.Y. 2011-12 “1. Whether on the facts and in the circumstances of the case the Ld. CIT(A) has erred in deleting the disallowance of sugarcane development expenses of Rs. 2,05,36,456/- and has failed to verify the facts independently and form his opinion. 2. The appellant therefore, prayed that the order of the Ld. CIT(A) may be set- a-side and that of the Assessing Officer be restored. 3. The appellant craves leave to add, amend, alter or withdraw any of more grounds of appeal at the time of hearing of appeal.” ITA No. 62/Rjt/2023 A.Y. 2012-13 “1. Whether on the facts and in the circumstances of the case the Ld. CIT(A) has erred in deleting the disallowance of sugarcane development expenses of Rs.1,89,30,407/- and has failed to verify the facts independently and form his opinion. 2. Whether on the facts and in the circumstances of the case the Ld. CIT(A) has erred in deleting the disallowance of 10% of Miscellaneous Expenditure of Rs. 67,656/- which contains the personal element. 3. The appellant therefore, prayed that the order of the Ld. CIT(A) may be set- a-side and that of the Assessing Officer be restored. 4. The appellant craves leave to add, amend, alter or withdraw any of more grounds of appeal at the time of hearing of appeal.” 3. The assessee is a co-operative society engaged in manufacturing of sugar and related type of products and also run petrol pump. For the assessment year 2012-13, the assessee filed return of income on 27-09-2012 declaring nil income. The case was selected for scrutiny and notice u/s. 143(2) was issued on 06- 08-2013 which was duly served upon the assessee. The statutory notice was served to the assessee and in response to the assessee’s A.R./accountant, chief accountant and advocate attended the I.T.A Nos. 61 & 62/Rjt/2023 A.Y. 2011-12 & 2012-13 Page No ACIT vs. M/s. Bileshwar Khand Udhyog Khedut Sahakari Mandali Ltd. 3 proceedings and furnished the details. The Assessing Officer observed that Annexure 3CD-14 of the audited account, the assessee claimed a sum of Rs. 2,05,36,456/- on account of sugarcane development expenses. After asking the details, the assessee furnished the details and explained that the amount was paid to the members of the society. Since the sugarcane prices was better due to quality improvement in the sugar product, therefore the sugarcane development expenses should have been allowed as claimed by the earlier year as per the submissions of the assessee before the Assessing Officer. After taking cognizance of the submissions and details of the assessee, the Assessing Officer made addition of Rs. 2,05,36,456/- and disallowed sugarcane development expenses. 4. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) allowed the appeal of the assessee. 5. At the time of hearing, the ld. A.R. submitted that in the assessment years 2009-10 & 2010-11 being ITA No. 633/Rjt/2014 order dated 25-10-2019 and ITA 140/Rjt/2020 order dated 14-06- 2023 on the similar issues, the Tribunal in assessee’s own case has granted the claim of assessee related to sugarcane development expenses. This matter is covered. 6. The ld. D.R. submitted that whether this prior period expenses or sugarcane development expenses has not been taken I.T.A Nos. 61 & 62/Rjt/2023 A.Y. 2011-12 & 2012-13 Page No ACIT vs. M/s. Bileshwar Khand Udhyog Khedut Sahakari Mandali Ltd. 4 into account by the earlier year order and therefore the same should be taken into account. The ld. D.R. relied upon the assessment order. 7. We have heard both the parties and perused all the relevant materials available on record. From the perusal of the records and the decision given in assessee’s own case for assessment years 2009-10 & 2010-11, facts are identical and as submitted by ld. D.R. that whether the same prior period expenses or not, does not apply in the present assessment year as well as the expenses are related to sugarcane development expenses only. The Tribunal in assessment year 2009-10 has held as under:- “13. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the instant case relates to the provision made by the assessee for the expenses to be incurred for Rs. 2,72,42,900.00 on account of sugar development expenses. There is no dispute to the facts of the case as elaborated in the preceding paragraphs. Therefore, we are not inclined to repeat the same for the sake of brevity. At the outset we note that there was similar claim made by the assessee in the own case pertaining to the AY 2005-06 and 2007-08 dated 10-12-2007 and 29-07-2009 respectively which was admitted by the Revenue. This fact can be verified from the assessment orders for the AYs 2005-06 and 2007-08 available on record. Thus, we are of the view that the assessee should be allowed for the deduction of such expenses on the basis of principles of consistency. In this regard we find support and guidance from the judgment of Hon'ble Supreme Court in the case of CIT versus Excel Industries Ltd reported in 358 ITR 295 wherein it was held as under: "28. Secondly, as noted by the Tribunal, a consistent view has been taken in favour of the assessee on the questions raised, starting with the assessment year 1992-93, that the benefits under the advance licences or under the duty entitlement different view unless there are very convincing reasons, none I.T.A Nos. 61 & 62/Rjt/2023 A.Y. 2011-12 & 2012-13 Page No ACIT vs. M/s. Bileshwar Khand Udhyog Khedut Sahakari Mandali Ltd. 5 of which have been pointed out by the learned counsel for the Revenue. 29. In Radhasoami Satsang Saomi Bagh v. CIT [1992] 193 ITR 321/60 Taxman 248 (SC) this Court did not think it appropriate to allow the reconsideration of an issue for a subsequent assessment year if the same "fundamental aspect" permeates in different assessment years. In arriving at this conclusion, this Court referred to an interesting passage from Hoystead v. Commissioner of Taxation, 1926 AC 155 (PC) wherein it was said: "Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle. Thirdly, the same principle, namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. " In view of the above and after considering the facts in totality, we are of the view that the assessee is eligible for deduction of the sugar cane development expenses as discussed above. The ld. DR has also not brought anything on record suggesting any material change in the facts and circumstances of the case for the year under consideration viz a viz earlier assessment year. It is also pertinent to note that the outstanding payment of Rs. 1,98,83,655.00 to the parties was made before the due date of filing the Income tax return under section 139(1) of the Act. This fact has not been doubted by the authorities below. I.T.A Nos. 61 & 62/Rjt/2023 A.Y. 2011-12 & 2012-13 Page No ACIT vs. M/s. Bileshwar Khand Udhyog Khedut Sahakari Mandali Ltd. 6 In view of the above, the assessee succeeds on the principle of consistency. Accordingly we set aside the order of the learned CIT(A) and direct the AO to allow the claim of the assessee. Hence the ground of appeal of the assessee is allowed.” There is no other distinguishing facts points out by the ld. D.R. and hence the present assessment year is identical to assessment year 2010-11 and 2009-10. Thus, ITA 61/Rjt/2023 is dismissed. As regards ITA 62/Rjt/2023 for assessment year 2012-13, the issue is identical to that of earlier assessment year. Thus, the said appeal is dismissed. 8. In the result, both the appeals filed by the Revenue are dismissed. Order pronounced in the open court on 10-01-2024 Sd/- Sd/- (WASEEM AHMED) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 10/01/2024 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order, Assistant Registrar, Income Tax Appellate Tribunal, Rajkot