2023 (1) TMI 1196 - AT - Income Tax

Reopening of assessment u/s 147 - assessee has failed to submit truly and fully the entire process of fixing final sugarcane price during the original assessment proceedings - HELD THAT - In case of sugarcane growers that the co-operative sugar factories of south Gujarat are following a practice of deciding the purchase price of sugarcane after finalisation of its accounts and its profits in the financial year subsequent to procurement of sugarcane. It was also recorded that till the time of finalization of the purchase price, ad hoc payments are distributed among the sugarcane farmers. The final price is declared after arriving at the profit earned by the cooperative sugar factories during the year of procurement of sugarcane. Thus, the ad hoc payments and final payments contain an element of profit of co-operative sugar factories, which are distributed amongst the sugar cane growers in the guise of cane price , without payment of income tax on the profit so earned. We find that exact reason of reopening was recorded for A.Y. 2007-08 - Copy of which is filed on record by Ld. CIT-DR for the revenue. Considering the fact that on similar set of fact, the re-assessment order has been quashed by Hon'ble High Court in 2015 (7) TMI 297 - GUJARAT HIGH COURT therefore respectfully following the same, we affirm the order of Ld. CIT(A). Appeal of the Revenue is dismissed.

Issues Involved:
1. Validity of reopening the assessment under section 147.
2. Failure to disclose fully and truly all material facts.
3. Deletion of disallowance of non-business expenditure.
4. Deletion of excess payment made over and above SMP.
5. Deletion of addition contrary to the facts of the assessee.
6. Failure to furnish details or computations for final cane price determination.
7. Request to set aside the order of CIT(A) and restore the order of AO.

Issue-wise Detailed Analysis:

1. Validity of reopening the assessment under section 147:
The Revenue contended that the CIT(A) failed to appreciate that the AO correctly reopened the case after obtaining statutory approval under section 151 and recording reasons for the assessee's failure to submit the entire process of fixing the final sugarcane price during the original assessment proceedings. The Tribunal noted that similar reasons for reopening were quashed by the Hon'ble jurisdictional High Court for AY 2007-08, 2009-10, and 2010-11. The High Court held that reassessment on mere change of opinion is not permissible, and there must be tangible new material to justify reopening. The Tribunal affirmed the CIT(A)'s order, finding the reasons for reopening identical to those previously quashed by the High Court.

2. Failure to disclose fully and truly all material facts:
The Revenue argued that the assessee failed to disclose all material facts regarding the details of purchase and the determination of the final cane price paid over and above the Statutory Minimum Price (SMP) during the regular assessment proceedings. The Tribunal found that the AO had already conducted necessary inquiries during the original assessment under section 143(3) and accepted the return. The High Court's decision in similar cases indicated that reopening on the same grounds constitutes a change of opinion, which is not permissible.

3. Deletion of disallowance of non-business expenditure:
The Revenue contended that the CIT(A) erred in deleting the disallowance of Rs. 24,43,56,633/- made by the AO on account of non-business expenditure and transfer of profits by payment of sugarcane purchases. The Tribunal referred to the High Court's decision, which stated that mere payment of cane price in excess of the SMP does not per se constitute distribution of profits. The Tribunal upheld the CIT(A)'s decision, aligning with the High Court's reasoning.

4. Deletion of excess payment made over and above SMP:
The Revenue argued that the CIT(A) erred in deleting the excess payment made over and above the SMP to sugarcane farmers, leading to disallowance under section 37(1) of the Act. The Tribunal noted that the High Court had previously quashed similar reassessment proceedings, emphasizing that payment in excess of SMP alone does not justify reopening without tangible material indicating exorbitant or unreasonable payments. The Tribunal affirmed the CIT(A)'s order.

5. Deletion of addition contrary to the facts of the assessee:
The Revenue claimed that the CIT(A) erred in deleting the addition of Rs. 24,43,56,633/- contrary to the facts of the assessee and without considering that the amount deleted is not an admissible item of expenditure. The Tribunal reiterated the High Court's position that reassessment based on similar grounds had been quashed, and upheld the CIT(A)'s decision.

6. Failure to furnish details or computations for final cane price determination:
The Revenue contended that the CIT(A) failed to appreciate that the assessee did not furnish any details or computations to explain the basis of the final cane price determination during the assessment and remand proceedings. The Tribunal found that the High Court had already addressed this issue, stating that reopening on such grounds without tangible new material is not permissible. The Tribunal upheld the CIT(A)'s order.

7. Request to set aside the order of CIT(A) and restore the order of AO:
The Revenue prayed for the CIT(A)'s order to be set aside and the AO's order to be restored. The Tribunal, considering the High Court's decisions in similar cases, dismissed the grounds of appeal raised by the Revenue and affirmed the CIT(A)'s order.

Conclusion:
The Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s order and aligning with the High Court's decisions in similar cases. The Tribunal emphasized that reassessment based on mere change of opinion without tangible new material is not permissible. The appeal of the Revenue was dismissed.

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