9911796707
TMI Blog2022 (1) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... ('AO' for short) under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act' for assessment years (AYs) 2011-12 and 2013-14respectively. In both the appeals, the assessee has raised identical grounds of appeals except variation of disallowance on account of portion of cane price in excess of Fair Rate Price ('FRP' in short). For appreciation of fact, the facts for AY 2011-12 in ITA No.96/SRT/2020 are treated as 'lead' case. The assessee has raised the following grounds of appeal:- "1 On the facts and circumstances of the case as well in law, the order of the C.I.T.(Appeals)upholding the Assessing Officer's action making disallowance of ₹ 160,03,41,255/- from total cane price paid to the sugarcane growers/farmers for the supply of sugarcane, without appreciating the past assessment/appeal "records" of the appellant co.op. society and purely on misleading, misconceptual, arbitrary and perverse observations and hence, being without jurisdiction, bad in law, in-valid, illegal, unwarranted of facts, is liable to be quashed. 67,21,64,850/- 2 On the facts and in the circumstances of the case as well in law, both the lower authorities have grievousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture u/s 37(1) of the Act in their assessments and therefore, the action of the tax authorities to deny the final/approved cane price in excess of FRP as the actual business expenditure incurred to meet the commercial expediency by the appellant co.operative society, being without jurisdiction, in pure contravention to the "Rule of Consistency", arbitrary, prejudicial, subjective, perverse, bad in law and hence, liable to be struck down. As per Sr.No.1 above 6 On the facts and circumstances of the case as well in law, the order of the C.I.T.(Appeals) failed to appreciate that the total cane price including the above amount of ₹ 160,03,41,255/- was allowable both under section 28 and section 37 and the disallowance thereof results into Department taxing unreal and wrong amount of income. As per Sr. No. 1 above. 7 On the facts and in the circumstances of the case as well in law, the C.I.T.(Appeals) failed to appreciate that on identical facts, in the past in all the assessment years, such price was allowed by various Assessing Officers or the Appellate Authorities, and therefore. There was no justification on the part of the Assessing Officer to decide to the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome -tax- Departmental Representative (CIT-DR) for the Revenue submits that he supports the order of Assessing Officer and considering the decision of Hon'ble Supreme Court (supra) the matter may be restored to the file of Assessing Officer to pass the order afresh in accordance with law. 4. We have considered the rival contentions of both the parties and perused the materials available on record. We have also gone through the facts in assessee's own case for assessment year 2012-13 (supra) and the grounds of appeals and facts of in assessment years 2011-12& 2013-14. On perusal of facts, we find that assessee has raised almost similar grounds of appeals as raised in assessment year 2012-13. We find that in assessee's appeal for assessment year 2012-13, our predecessor passed the following order (supra), which is reproduced below:- 8.We have heard both the sides and gone through the relevant material on record. It is an agreed position between the rival parties that the issue of payment of excessive price on purchase of sugarcane by the assesses is no more res integra in view of the recent judgment of Hon'ble Supreme Court in CIT Vs. Tasgaon Taluka S.S.K. Ltd. [2019] 103 taxmann. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO for considering the modalities and manner in which SAP/additional purchase price/final price is decided. The Hon`ble Supreme Court has been directed to carry out an exercise of considering accounts/balance sheet and the material supplied to the State Government for the purpose of deciding/fixing the final price/additional purchase price/SAP under clause 5A of the Control Order, 1966 and thereafter determine as to what amount would form part of the distribution of profit and the other as deductible expenditure. The relevant findings of the Hon'ble Apex Court are reproduced as under:- "9.4. ..... Therefore, to the extent of the component of profit which will be a part of the final determination of SAP and/or the final price/additional purchase price fixed under Clause 5A would certainly be and/or said to be an appropriation of profit. However, at the same time, the entire/whole amount of difference between the SMP and the SAP per se cannot be said to be an appropriation of profit. As observed hereinabove, only that part/component of profit, while determining the final price worked out/SAP/additional purchase price would be and/or can be said to be an appropriation of profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as deductible expenditure. At this stage, it is made clear that the distribution of profits can only be qua the payments made to the members. In so far as the non-members are concerned, the case will be considered afresh by the AO by applying the provisions of section 40A(2) of the Act, as has been held by the Hon'ble Supreme Court supra. Needless to say, that the assessee will be allowed a reasonable opportunity of hearing by the AO in such fresh determination of the issue. It is further made clear that the assessee will be at liberty to raise any other argument concerning the issue before the AO." 5. Considering the fact that both the parties have agreed that issue raised in the present appeals are covered by the decision of co-ordinate Bench of this Tribunal for assessment year 2012-13 (supra), wherein the matter was restored to the file of Assessing Officer to decide the issue afresh by following the decision of Hon'ble Supreme Court in the case of Tasgaon Taluka S.S.K.Ltd., (supra). Therefore, we restore the grounds of appeal raised by the assessee to the file of Assessing Officer to decide the issue afresh as per the direction of our predecessor in assessee's own case (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
