Vishwasrao Naik SSK Ltd., Sangli V. Assistant Commissioner of Income-tax, Sangli

ITA 861/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2331 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 07-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Retrospective amendment; Set aside
• Section: 143(3); 37(1)

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NOS.860 & 861/PUN/2017 / ASSESSMENT YEAR : 2010-11 & 2012-13 VISHWASRAO NAIK SAHAKARI SAKHAR KARKHANA LTD., A/P. CHIKHALI, TAL. SHIRALA, DIST. SANGLI. PAN : AAAAV0215B. . / APPELLANT V/S THE ASST. C OMMISSIONER OF IN COME - TAX , CIRCLE 2, SANGLI. . / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI. REVENUE BY : SHRI PANKAJ GARG. / ORDER PER ANIL CHATURVEDI, AM : 1. THESE TWO APPEALS FILED BY THE ASSESSEE ARE EMANATING OUT OF CONSOLIDATED ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) 1, KOLHAPUR DATED 16.01.2017 FOR A.YS. 2010-11 TO 2012-13. 2. BEFORE US, AT THE OUTSET, BOTH THE PARTIES SUBMITTED T HAT THOUGH THE APPEALS FILED BY THE ASSESSEE ARE FOR TWO DIFFERENT ASSESSM ENT YEARS BUT THE FACTS AND ISSUES INVOLVED IN BOTH THE APPEALS ARE IDENTICAL EXCEPT FOR THE ASSESSMENT YEAR AND THE AMOUNTS INVOLVED AND THEREFOR E THE SUBMISSIONS MADE BY THEM WHILE ARGUING ONE APPEAL WOULD BE EQUALLY A PPLICABLE TO THE OTHER APPEAL ALSO AND THUS BOTH THE APPEALS CAN BE HE ARD TOGETHER. IN VIEW OF THE AFORESAID SUBMISSIONS OF BOTH THE PARTIES, WE, F OR THE SAKE OF / DATE OF HEARING : 13.06.2019 / DATE OF PRONOUNCEMENT: 20.06.2019 2 ITA NOS.860 & 861/PUN/2017 CONVENIENCE, PROCEED TO DISPOSE OF BOTH THE APPEALS BY A CONSOLIDATED ORDER BUT HOWEVER, PROCEED WITH NARRATING THE FACTS IN ITA NO.860/PUN/ 2017 FOR ASSESSMENT YEAR 2010-11. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS A CO-OPERATIVE SOCIETY REGISTERED UNDER MAH ARASHTRA CO- OPERATIVE SOCIETIES ACT, 1950 AND IS STATED TO BE ENGAGE D IN THE BUSINESS OF MANUFACTURE AND SALE OF SUGAR AND ITS BY-PRODUCTS. ASS ESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2010-11 ON 24.09.2010 DECLA RING TOTAL INCOME AT RS.NIL AND CLAIMING CARRY FORWARD AND UNABSORBED LOSSES OF RS.8,93,499/-. SUBSEQUENTLY, ASSESSEE REVISED ITS RETURN OF INCOME ON 10.03.2012. THE CASE WAS SELECTED FOR SCRUTINY AND THER EAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.30.11.2012 A ND THE TOTAL INCOME WAS DETERMINED AT RS.28,20,70,585/-. AGGRIEVED B Y THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE CONSOLIDATED ORDER DATED 16.01.2017 FOR A.YS. 2010-11 TO 2012-13 GR ANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASS ESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT (A) WAS NOT JUSTIFIED IN PASSING THE APPEAL ORDER IN THE CASE OF THIS APPELLANT AS THE SIMILAR AND IDENTICAL SUBSTAN TIAL QUESTIONS OF LAW ARE SUB-JUDICE BEFORE THE LARGER BENCH OF THE SUPRE ME COURT AND ARE GOING TO BE HEARD IN THE IMMEDIATE NEAR FUTURE. THE VERDICT OF THE HON'BLE SUPREME COURT WOULD HAVE PUT FULL STOP TO T HE ONGOING LITIGATION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW AND WITHOUT PREJUDICE TO GROUND NO 1 ABOVE AND SINCE TH E VERDICT OF THE LARGER BENCH OF THE HON'BLE SUPREME COURT IS YE T TO BE PRONOUNCED THEN THE HON'BLE JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF TASGAON TALUKA SSK LTD. (SUPRA) REMAINS AS A BINDIN G PRECEDENT TILL IT IS SET ASIDE BY THE HIGHER JUDICIAL FORUM I . E. SUPREME COURT OR THE LAW IS CHANGED WITH THE RETROSPECTIVE EFFECT. THE LD. CIT( A) OUGHT TO HAVE CONSIDERED THIS ENUNCIATION OF LAW. 3 ITA NOS.860 & 861/PUN/2017 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) FAILED TO PROPERLY APPRECIATE THE LEGAL POSI TION AFTER THE REPLACEMENT OF SMP (STATUTORY MINIMUM PRICE) WITH F AIR REMUNERATIVE PRICE (FRP). THIS CHANGE WAS INCORPORATED TO PUT AN END TO THE EXTENSIVE EXPLOITATION OF FARMING COMMUNITY AS A WH OLE AND ONE OF THE IMPORTANT GUIDELINES INCORPORATED WAS 'REASONABLE M ARGINS FOR THE GROWERS OF SUGARCANES ON ACCOUNT OF RISKS AND PROFI TS.' THE FRP WAS NOT BLOCKED IN THE STRAIGHT JACKET FORMULA. THE REA SONABLE MARGINS CHANGE ACCORDING TO SITUATIONAL AND M A RKET CIRCUMSTANCES BUT IT SHOULD BE FAIR REMUNERATIVE PRICE. THE FARMING COMMUNITY SHOULD NO T SUFFER ANY LOSSES AND THAT WAS THE CRUX OF THE MATTER. THE LD. CIT(A) FAILED TO APPRECIATE THIS INTENTION OF THE CENTRAL GOVERNMENT WHILE FIXING THE FRP. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE DECISION OF THE A. O. THAT SUGAR CANE PRICE PAID OVER AND ABOVE FRP CONSTITUTES DIST RIBUTION OF PROFITS. THE LD. CIT(A) HOLDING THUS NEGATED THE RECOMMENDAT IONS OF CASP THAT THE CANE GROWERS WERE ENTITLED TO REASONABLE MARGIN S ON ACCOUNT OF RISKS AND PROFITS. THAT CONFIRMING THE VIEW OF THE A . O. THE LD. CIT(A) HAS RESULTANTLY DENIED THE REASONABLE MARGINS TO TH E CANE GROWERS BY DENYING THE EXPENDITURE U/S 37(1) TO THE APPELLANT SUGAR FACTORY AND INCREASED THE TAXABLE INCOME OF THE APPELLANT. IT I S A DISCOURAGEMENT FOR ALLOWING THE REASONABLE MARGINS TO THE CANE GROWERS . 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE APPROACH OF THE A. O. THAT CANE PRICE PAID OVER AND ABOVE FRP WAS NOTHING BUT DISTR IBUTION OF PROFITS REDUCING THE TAXABLE INCOME OF THE APPELLANT BUT AT THE SAME TIME IGNORING THE FACT OF POLICY OF THE CENTRAL GOVERNME NT THAT THE PAYMENT OF REASONABLE MARGINS TO CANE GROWERS/FARMERS WAS TOWA RDS THEIR ALL OUT DEVELOPMENT WHICH COULD NOT TAKE PLACE HERETO BEFOR E. IT IS IN OPPOSITION TOTHE BENEVOLENT POLICY OF THE CENTRAL GOVT. TOWARD S THE FARMERS OF THE COUNTRY. IT BE HELD ACCORDINGLY. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WHEN THE MATTERS WERE RESTORED TO HIS FI LE BY HON'BLE SUPREME COURT FOR FRESH CONSIDERATION OF THE COMPLI CATED ISSUES OUGHT TO HAVE CONSIDERED THE POSITION OF THE APPELL ANT THAT BY MAKING THE ADDITION OF CANE PRICE PAID OVER AND ABOVE FRP REDUCED THE OPERATIVE PROFITS BUT CANNOT BE SAID THAT THE APPEL LANT DOES NOT HAVE THE SUFFICIENT PROFIT'. IN THAT POSITION IT CANNOT BE SAID THAT THE PURCHASE OF SUGARCANE BY PAYING OVER AND ABOVE FRP WOULD CONSTI TUTE DISTRIBUTION OF PROFITS IN ORDER TO SUSTAIN THE ADDITION MADE BY THE A. O. THE LD. CIT(A) UPHELD THE DISALLOWANCE WITHOUT APPRECIATING THE INTENTION OF THE GOVT. IN FIXING THE FRP WHICH WAS FOR PROVIDING THE MARGINAL RETURNS TO THE FARMERS. IN VIEW OF THIS THE LD. CIT(A) OUGHT N OT HAVE CONFIRMED THE ADDITION MADE BY THE A. O. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE DISAL LOWANCE MADE BY THE A. O. ALSO HOLDING THAT PAYMENT OF PRICE OF PURCHASE OF SUGARCANE OVER AND ABOVE FRP WAS APPLICATION OF INC OME. IT IS NOT CORRECT TO SAY THAT IT WAS AN APPLICATION OF IN COME. IT BE HELD ACCORDINGLY. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN RELYING UPON THE JU DGMENT OF THE HON'BLE 4 ITA NOS.860 & 861/PUN/2017 KARNATAKA HIGH COURT IN NAGARBAIL SALT OWNERS CO. O P. SOCIETY LTD. (2016) 68 TAXMANN.COM 149 (KARNATAKA) WHICH ARE STR IKINGLY DISTINGUISHABLE ON FACTS AND LAW. IN THAT CASE THER E WAS NO ELEMENT AT FIXING THE PRICE LIKE FRP IN ORDER TO PAY THE REASO NABLE MARGINS TO MEMBERS. THE DECISION PRONOUNCED IN THAT CASE LED T O THE PROPOSITION THAT SINCE SOCIETY HAS TRANSFERRED FUNDS TO DISTRIB UTION POOL BEFORE OFFERING TO TAX AND ASSESSEE THEREON WAS DUTY BOUND TO OFFER ITS PROFITS TO TAX BEFORE DIVERTING ANY FUNDS TO THE DISTRIBUTI ON POOL FUND ACCOUNT. THAT IS NOT THE CASE HERE. THE VERDICT OF THE SAID JUDGMENT IS NOT APPLICABLE TO THE FACTS OF THIS CASE. 9. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE A. O. TO THE EXTENT OF RS. 25,91,35,370/- NET OF H & T EXPENSES BEING SUGARCANE PRICE PAID OVER AND ABOVE THE FRP AS HELD BY THE A. O. IN VIEW OF GROUNDS OF APPEAL RAISED HERETO BEFORE THE CORRECT POSITION OF LAW IN VIEW OF CENTRAL GOVT. INTENTION IN EVOLVING THE FRP MECHANISM NO DISALLOWANCE OF RS. 25,91,35,370/- IS SUSTAINABLE. THE ADDITION SUSTAINED BE DELETED. 10. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 2,08,07,646/- PARTLY ALLOWED WITH DIRECTIONS MADE B Y THE A. O. ON ACCOUNT OF SALE OF SUGAR AT CONCESSIONAL RATES. THIS IS ALSO A PART OF PAYMENT OF REASONABLE MARGINS TO THE CANE G ROWERS/FARMERS IN CONSONANCE WITH THE POLICY OF THE CENTRAL GOVERNMEN T TO ALL OUT DEVELOPMENT OF THE FARMERS. THE ADDITION BE DELETED . 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEVY OF INTEREST U/S 234A, 2346 AND 234C IS NOT JUS TIFIED. 4. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THOUGH ASSESSEE HAS RAISED VARIOUS GROUNDS BUT THE ISSUE RAISED IN GROUND NO S.1 TO 9 ARE ON SINGLE ISSUE AND GROUND NO.10 IS ON DIFFERENT ISSUE. 5. WE FIRST PROCEED WITH THE ISSUE RAISED IN GROUND NOS. 1 TO 9. 5.1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO NOT ICED THAT DURING THE YEAR UNDER CONSIDERATION ASSESSEE SUGAR FACTORY HA D CRUSHED SUGARCANE AND THE CANE PRICE PAID BY THE SUGAR FACTORY WAS IN EXCESS OF FAIR & REMUNERATIVE PRICE (FRP) FOR THE PURCHASE OF SUGAR CANE DECLARED BY THE CENTRAL GOVERNMENT FOR THE YEAR UNDER CONSIDERATION . THE AO HAS TABULATED THE FRP OF CANE PURCHASE AND THE CANE PRICE PAID BY THE ASSESSEE WHICH IS AT PAGE 2 OF THE PAPER BOOK. AO ASKE D THE ASSESSEE TO 5 ITA NOS.860 & 861/PUN/2017 EXPLAIN AS TO WHY THE PRICE PAID IN EXCESS THAN THE FRP DECLARED BY THE GOVERNMENT SHOULD NOT BE HELD TO BE EXCESS CANE PRICE PAID BY THE ASSESSEE, TO WHICH ASSESSEE MADE SUBMISSIONS WHICH WERE NOT FOUND ACCEPTABLE TO THE AO. AO THEREAFTER RELYING ON THE DEC ISION OF HONBLE APEX COURT IN THE CASE OF DCIT VS. SHRI SATPUDA TAPI PARISAR S.S.K. LTD. REPORTED IN 326 ITR 42(2010) HELD THAT THE PRICE PAYABLE AS PER THE SUGARCANE (CONTROL) ORDER, 1996 WAS THE FAIR PRICE OF THE SUGARCANE AND THE EXCESS PAYMENT MADE BY THE ASSESSEE WAS NOT ALLOW ABLE AND HE ACCORDINGLY WORKED OUT THE EXCESS CANE PRICE PAID BY T HE ASSESSEE AT RS.25,91,35,370/- AND DISALLOWED THE SAME. AGGRIEVED BY T HE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO UPHELD THE ORDER OF AO. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APP EAL BEFORE US. 6. BEFORE US, LD.A.R. AT THE OUTSET, SUBMITTED THAT THE ISS UE IN THE PRESENT GROUND IS COVERED BY THE DECISION OF GROUP OF C ASES DECIDED BY PUNE TRIBUNAL, THE LEAD CASE BEING OF SIDDHESHWAR SAHAKA RI SAKHAR KARKHANA LTD., AND OTHERS (IN ITA NO.1210/PUN/1997 FOR A .Y. 1992-93 ORDER DATED 01.05.2019). HE POINTED TO THE ORDER OF TR IBUNAL AND SUBMITTED THAT THE ISSUE IN THOSE CASES HAS BEEN REMITT ED TO THE FILE OF AO WITH NECESSARY DIRECTIONS. HE SUBMITTED THAT SINCE THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THAT OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LTD., AND OTHERS (SUPRA), THE ISSUE BE REMITTED BACK TO THE FILE OF AO WITH SIMILAR DIRECTIONS. LD. D.R. ON THE OTHER HAND DID NOT CONTROVER T THE SUBMISSIONS MADE BY THE LD.A.R. BUT HOWEVER SUPPORTED THE ORDER OF LOWER AUTHOR ITIES. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT GROUNDS IS WITH RESPE CT TO THE PAYMENT OF 6 ITA NOS.860 & 861/PUN/2017 EXCESSIVE SUGAR CANE PRICE TO THE FARMERS ON PURCHASE OF SUGAR CANE BY THE ASSESSEE. WE FIND THAT CO-ORDINATE BENCH OF THE TRIBUNAL ON IDENTICAL ISSUE IN THE CASE OF SIDDHESHWAR SAHAKARI SAKHAR KARKHA NA LTD., AND OTHERS (SUPRA) AFTER CONSIDERING THE ORDER OF HONBLE APE X COURT IN THE CASE OF CIT VS. TASGAON TALUKA S.S.K. LTD., HAS RESTORED T HE MATTER TO AO AND DIRECTED THE AO BY OBSERVING AS UNDER : 22. HOWEVER, AFTER ASSESSMENT YEAR 2009-10, THE SC ENARIO OF PAYMENT OF CANE PRICE TO THE FARMERS HAS UNDERGONE CHANGE AND THE DISTRIBUTION IS ON THE BASIS OF FAIR AND REMUNERATIVE PRICE, WHICH WAS DIF FERENT FROM SMP. THE CONTROL ORDER, 1966 AND THE WORKING OF SAP UNDER CL AUSE 5A OF THE SAID ORDER DOES NOT GOVERN THE PAYMENT OF CANE PRICE TO THE FARMERS AFTER ASSESSMENT YEAR 2009-10. IN SUCH SCENARIO, THE ASS ESSING OFFICER IS DIRECTED TO RE-LOOK INTO THE CLAIM OF ASSESSEE AS PER AMENDE D GUIDELINES ISSUED IN THIS REGARD AND DECIDE THE ALLOWABILITY OF SAID EXPENDIT URE IN THE HANDS OF S.S.K. GROUP. SINCE THE SMP FACTOR IS NOT THE BASIS FOR A LLOWING THE SAID EXPENDITURE, IT WOULD BE DIFFICULT TO CALCULATE THE ADDITIONAL PURCHASE PRICE UNDER CLAUSE 5A OF CONTROL ORDER, 1966. ACCORDINGL Y, IN THE PRESENT BUNCH OF APPEALS, WE REMIT THIS ISSUE OF DEDUCTIBILITY OF EX CESS CANE PRICE TO THE FILE OF ASSESSING OFFICER WITH NECESSARY DIRECTIONS TO APPL Y THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE YEARS TO WHICH IT IS SO APPLICABLE AND FOR THE BALANCE YEARS I.E. AFTER THE MODIFICATION OF TH E RULES FROM ASSESSMENT YEAR 2009-10, TO CONSIDER THE CHANGED GUIDELINES AN D DECIDE THE SAME AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE A SSESSEE. 23. IT IS CONTENDED BY THE LEARNED COUNSELS BEFORE US THAT IN ADDITION TO THE ISSUE BEFORE THE HON'BLE SUPREME COURT IN RESPECT O F EXCESS CANE PRICE, THERE ARE IN SOME CASES, SUGARCANE WAS PURCHASED ON CONTR ACTED RATES / PRICE OUT OF AREA OF OPERATIONS. IT WAS POINTED OUT BY THEM THAT THIS ISSUE WAS NOT CONSIDERED BY THE HON'BLE SUPREME COURT BUT THE SAI D DEDUCTION IS TO BE ALLOWED IN THE HANDS OF ASSESSEE, WHICH ADMITTEDLY, IS NOT COVERED BY SMP PRICE. SINCE THE MATTER HAS BEEN SET ASIDE TO THE FILE OF ASSESSING OFFICER, THEN IN THE HANDS OF RELEVANT ASSESSEE, THIS ISSUE MAY BE LOOKED INTO BY THE ASSESSING OFFICER. IT WAS POINTED OUT THAT IN SUCH CASES, SMP WOULD NOT HAVE ANY ROLE TO PAY. CONSEQUENTLY, SUCH APPEALS A RE NOT GOVERNED BY THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN CIT VS. TASGAON TALUKA S.S.K. LTD. AND OTHERS (SUPRA). THE ASSESSING OFFI CER IS DIRECTED TO DECIDE THE ISSUE AFTER ALLOWING REASONABLE OPPORTUNITY OF HEAR ING TO ASSESSEE. WITH SIMILAR DIRECTIONS, WE SET ASIDE. 8. BEFORE US, REVENUE HAS NEITHER POINTED OUT ANY DISTING UISHING FEATURE IN THE FACTS OF THE PRESENT CASE AND THAT SIDDHE SHWAR SAHAKARI SAKHAR KARKHANA LTD., AND OTHERS (SUPRA) NOR HAS PLACED ANY MATERIAL ON RECORD TO DEMONSTRATE THAT THE ORDER OF THE TRIBUNAL I N THE CASE OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LTD., AND OTHERS (S UPRA) HAS BEEN SET ASIDE / STAYED / OVER-RULED BY THE HIGHER JUDICIAL FO RUM. WE, THEREFORE 7 ITA NOS.860 & 861/PUN/2017 FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUN AL IN THE CASE OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LTD., AND OTHERS (SUPRA) AND FOR SIMILAR REASONS, RESTORE THE ISSUE TO THE FILE OF AO TO DE CIDE THE ISSUE ON MERITS. NEEDLESS TO STATE THAT AO SHALL GRANT ADEQUATE O PPORTUNITY OF HEARING TO THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO P ROMPTLY FURNISH ALL THE DETAILS CALLED FOR BY THE AUTHORITIES. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. GROUND NO.10 IS WITH RESPECT TO THE ADDITION OF RS.2,08,07 ,646/- ON ACCOUNT OF SALE OF SUGAR AT CONCESSIONAL RATE. 9.1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOT ICED THAT ASSESSEE HAD SUPPLIED SUGAR TO ITS MEMBERS AT A CONCES SIONAL RATE. ASSESSEE WAS ASKED AS TO WHY THE DIFFERENCE BETWEEN FR P AND THE CONCESSIONAL PRICE SHOULD NOT BE DISALLOWED AND ADDED TO T HE TOTAL INCOME AS IT WAS NOTHING BUT THE DISTRIBUTION OF PROFITS. ASSESSEE MADE THE SUBMISSIONS WHICH WERE NOT FOUND ACCEPTABLE TO THE AO. H E THEREFORE DISALLOWED THE DIFFERENCE OF THE AMOUNT PAID BETWEEN FRP AN D CANE PRICE AMOUNTING TO RS.2,08,07,646/- AND MADE ITS ADDITION. AGGRIE VED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO FOR THE REASONS NOTED IN PARA 39 TO 45 OF THE ORDER UPHELD THE ORDER OF AO. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW BEFORE US. 10. BEFORE US, LD.A.R. AT THE OUTSET, SUBMITTED THAT IDENTICA L ISSUE AROSE IN THE CASE OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LT D., AND OTHERS (IN ITA NO.1210/PUN/1997 FOR A.Y. 1992-93 ORDER DATED 01.05.2 019). HE POINTED TO THE ORDER OF TRIBUNAL AND SUBMITTED THAT THE ISSUE IN THOSE 8 ITA NOS.860 & 861/PUN/2017 CASES HAS BEEN REMITTED TO THE FILE OF AO WITH NECESSARY DIRECTIONS. HE SUBMITTED THAT SINCE THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THAT OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LTD., AND OTHERS (SUPRA), TH E ISSUE BE REMITTED BACK TO THE FILE OF AO WITH SIMILAR DIRECTIONS. LD . D.R. ON THE OTHER HAND DID NOT CONTROVERT THE SUBMISSIONS MADE BY THE LD.A.R. BUT HOWEVER SUPPORTED THE ORDER OF LOWER AUTHORITIES. 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT ON IDENTICAL ISSUE, IN THE CASE OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LTD. AND OTHERS (SUPRA) THE C O-ORDINATE BENCH OF THE TRIBUNAL HAS REMITTED THE ISSUE TO THE FILE OF AO TO APPLY THE RATIO OF THE DECISION OF HONBLE APEX COURTS LAID DOWN IN THE CASE OF CIT VS. KRISHNS SAHAKARI SAKHAR KARKHANA LTD. REPORTED IN (2012) 211 TAXMANN 109 (SC), BY OBSERVING AS UNDER : 24. NOW, COMING TO THE NEXT ISSUE I.E. SALE OF SUG AR AT CONCESSIONAL RATE TO MEMBERS. IN THIS BUNCH OF APPEALS, THIS IS THE SEC OND ISSUE WHICH IS MOSTLY RAISED AND DIFFERENT COUNSELS APPEARING BEFORE US H AVE POINTED OUT THAT THE SAID ISSUE HAS BEEN DECIDED BY THE HON'BLE SUPREME COURT IN CIT VS. KRISHNA SAHAKARI SAKHAR KARKHANA LTD. (SUPRA), BUT THE APPEALS IN THE PRESENT BUNCH HAVE BEEN DECIDED WITHOUT TAKING INTO CONSIDERATION THE SAID DECISION, AS THE ORDERS WERE PASSED BY CIT(A) BEFOR E THE SAID DECISION. 25. WE FIND THAT THE TRIBUNAL IN MAJALGAON SAHAKARI SAKHAR KARKHANA LTD. VS. ACIT (SUPRA) HAVE REMITTED THE ISSUE BACK TO TH E FILE OF ASSESSING OFFICER VIDE ITS DELIBERATIONS IN PARA 11 AT PAGES 22 TO 24 OF ORDER TO APPLY THE RATIO LAID DOWN IN CIT VS. KRISHNA SAHAKARI SAKHAR KARKHA NA LTD. (SUPRA) AND DETERMINE WHETHER DIFFERENCE BETWEEN AVERAGE PRICE OF SUGAR SOLD IN THE MARKET AND THAT SOLD TO THE MEMBERS AT CONCESSIONAL RATE WAS THE APPROPRIATION OF PROFITS OR NOT. FOLLOWING THE SAM E PARITY OF REASONING, THIS ISSUE IS ALSO REMITTED BACK TO THE ASSESSING OFFICE R TO DECIDE IN LINE WITH SAME DIRECTIONS. 12. BEFORE US, THE SUBMISSION OF ASSESSEE THAT THE ISSUE IN THE YEAR UNDER APPEAL IS IDENTICAL TO THE ISSUE THAT AROSE IN THE CASE OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LTD., AND OTHERS (S UPRA) HAS NOT BEEN CONTROVERTED BY REVENUE. THE DECISION OF THE TRIB UNAL IN THE CASE OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LTD., AND OTHERS ( SUPRA) HAS NOT 9 ITA NOS.860 & 861/PUN/2017 BEEN SET ASIDE, STAYED OR OVER-RULED BY HIGHER JUDICIAL AU THORITIES. BEFORE US, REVENUE HAS ALSO NOT POINTED OUT ANY DISTINGUISHING FEA TURE IN THE FACTS OF THE PRESENT CASE AND THAT IN THE CASE OF SIDDHE SHWAR SAHAKARI SAKHAR KARKHANA LTD., AND OTHERS (SUPRA). WE THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SIDDHESHWAR SAHAKARI SAKHAR KARKHANA LTD., AND OTHERS ( SUPRA) AND IN VIEW OF THE FACT THAT THE ISSUE IN THE PRESENT GROUND IS SIMILAR TO THE ISSUE IN THE GROUP CASES OF SIDDHESHWAR SAHAKARI SAKHAR KARKH ANA LTD., AND OTHERS (SUPRA) AND FOR SIMILAR REASONS, RESTORE THE ISSUE TO THE FILE OF AO TO DECIDE THE ISSUE ON MERITS AND IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT AO SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO PROMPTLY FURNISH ALL THE DETA ILS CALLED FOR BY THE LOWER AUTHORITIES. THUS, THE GROUND NO.10 OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. 13. IN THE RESULT, THE APPEAL OF ASSESSEE IN ITA NO.860 /PUN/2017 FOR A.Y. 2010-11 IS ALLOWED FOR STATISTICAL PURPOSES. 14. NOW, WE TAKE UP ASSESSEES APPEAL IN ITA NO.861/PUN/ 2017 FOR A.Y. 2012-13. 14.1. AS FAR AS THE GROUNDS RAISED IN APPEAL IN ITA NO. 861/PUN/2017 FOR A.Y. 2012-13 IS CONCERNED, IN VIEW OF THE SUBMISSION OF BOTH THE PARTIES THAT THE FACTS OF THE CASE IN THE YEAR BEING IDENTICAL TO THE FACTS AN D ISSUE OF THE CASE IN ITA NO.860/PUN/2017 FOR A.Y. 2010-11, WE TH EREFORE FOR THE REASONS STATED HEREIN WHILE DISPOSING OF THE APPEAL IN ITA NO.860/PUN/2017 FOR A.Y. 2010-11 AND FOR SIMILAR REASONS R ESTORE THE ISSUE TO THE FILE OF AO TO DECIDE THE ISSUE ON MERITS AND IN ACCORDANCE WITH 10 ITA NOS.860 & 861/PUN/2017 THE LAW. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATI STICAL PURPOSES. 15. IN THE RESULT, THE APPEAL OF ASSESSEE IN ITA NO.861 /PUN/2017 FOR A.Y. 2012-13 IS ALLOWED FOR STATISTICAL PURPOSES. 16. TO SUM UP, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 20 TH DAY OF JUNE, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 20 TH JUNE, 2019. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-1 KOLHAPUR. PR. CIT KOLHAPUR. '#$ %%&', &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY &', / ITAT, PUNE.