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Income Tax Appellate Tribunal, PUNE “A” BENCH, PUNE
Before: SHRI PARTHA SARATHI CHAUDHURY & SHRI G. D. PADMAHSHALI
बनाम / V/s Dy. Commissioner of Income Tax, Circle – 7, Pune . . . . . . . प्रत्यर्थी / Respondent द्वारा / Appearances Assessee by : Shri Hanmant D Dhavle Revenue by : Shri Keyur Patel सुनवाई की तारीख / Date of conclusive Hearing : 15/06/2023 घोषणा की तारीख / Date of Pronouncement : 06/07/2023 आदेश / ORDER PER G. D. PADMAHSHALI, AM; Both these appeals of the assessee for the assessment years [for short “AY”] 2009-10 & 2012-13 are assailed against the first appellate orders of National Faceless Appeal Centre, Delhi [for short ‚CIT(A) /NFAC‛] dt. 31/03/2023 passed u/s 250 of the Income-tax Act, 1961 [for short ‚the Act‛], which ascended out of separate assessment orders dt. 26/09/2021 passed u/s 144 r.w.s 254 r.w.s 144B by the National e-Assessment Centre, Delhi, [for short “AO”].
ITAT-Pune Page 1 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13
2. The appellant assessee has raised following grounds ; “1. On the facts and in the circumstances of the case and in law of the learned NFAC - Commissioner of Income Tax (Appeals) Delhi, has erred in disallowing and adding back an amount of Rs. 1,07,97,23,208/- on account of Excessive Sugarcane price paid to farmers.
2. On the facts and in the circumstances of the case and in law of the learned NFAC - Commissioner of Income Tax (Appeals) Delhi, has erred in disallowing and adding back an amount of Rs. 33,13,276/- on account of Sale of sugar at concessional rate.
3. On the facts and in the circumstances of the case and in law of the learned NFAC - Commissioner of Income Tax (Appeals) Delhi, has erred in disallowing and adding back an amount of Rs. 17,13,375/- on account of VSI Contribution.
4. The appellant craves for the leave, add, alter, amend, modify and delete any or all the above grounds of appeals before or at the time of hearing.” “1. On the facts and in the circumstances of the case and in law of the learned NFAC - Commissioner of Income Tax (Appeals) Delhi, has erred in disallowing and adding back an amount of Rs. 1,33,52,81,001/- on account of Excessive Sugarcane price paid to farmers.
2. On the facts and in the circumstances of the case and in law of the learned NFAC - Commissioner of Income Tax (Appeals) Delhi, has erred in disallowing and adding back an amount of Rs.2,27,41,192/- on account of Sale of sugar at concessional rate.
3. On the facts and in the circumstances of the case and in law of the learned NFAC - Commissioner of Income Tax (Appeals) Delhi, has erred in disallowing and adding back an amount of Rs.26,35,428/- on account of VSI Contribution.
4. On the facts and in the circumstances of the case and in law of the learned NFAC - Commissioner of Income Tax (Appeals) Delhi, has erred in disallowing and adding back an amount of Rs.27,76,398/- on account of Chief Minister Relief Fund.
5. The appellant craves for the leave, add, alter, amend, modify and delete any or all the above grounds of appeals before or at the time of hearing.”
ITAT-Pune Page 2 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 3. Since issues in both these appeals are based on similar and identical facts therefore in agreement between rival parties, for the sake of brevity and convenience, we proceeded to hear these matters together for being disposed of by this common and consolidated order.
Briefly stated the common facts applicable to both these appeals are; 4.1 The assessee is co-operative sugar society engaged in the business of manufacturing and trading of sugar had e-filed its return of income [for short ‚ITR‛] declaring total income at NIL after set off against brought forward losses.
4.2 The original assessments in these cases were framed u/s 143(3) of the Act with following disallowances/additions viz; 1) Disallowance of excessive sugarcane purchase price paid 2) Addition on account of sale of sugar at concessional rate 3) Disallowance of contribution made to Vasantdada Sugar Institute [‘VSI’] 4) Disallowance of contribution to Chief Minister Relief Fund 4.3 Aggrieved by aforestated additions/disallowance, the assessee had filed separate appeals before first appellate for the respective assessment years. However same did not yield any relief to the assessee, consequently the matter travelled to this Tribunal on earlier occasion.
4.4 The Co-ordinate bench of this Tribunal, after a due consideration of these common issues in 120 different assessee (cases), vide its common and consolidated order dt. 26/09/2021 has remanded these matters/issues back to the file of assessing officer with certain direction. And at this juncture it is apt to note the relevant direction of the Co-ordinate bench as applicable in the extant case in relation to additions/disallowances under adjudication; ITAT-Pune Page 3 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 1. Disallowance of excessive sugarcane purchase price paid :
‘22. However, after assessment year 2009-10, the scenario 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 different from SMP. The Control Order, 1966 and the working of SAP under clause 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 Assessing Officer is directed to re-look into the claim of assessee as per amended guidelines issued in this regard and decide the allowability of said expenditure in the hands of S.S.K. group. Since the SMP factor is not the basis for allowing the said expenditure, it would be difficult to calculate the additional purchase price under clause 5A of Control Order, 1966. Accordingly, in the present bunch of appeals, we remit this issue of deductibility of excess cane price to the file of Assessing Officer with necessary directions to apply 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 the Rules from assessment year 2009- 10, to consider the changed guidelines and decide the same after allowing reasonable opportunity of hearing to the assessee.’
It is contended by the learned Counsels before us that in addition to the issue before the Hon'ble Supreme Court in respect of excess cane price, there are in some cases, sugarcane was purchased on contracted 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 said deduction is to be allowed in the hands of assessee, which admittedly, is not covered ITAT-Pune Page 4 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 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 are 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 Officer is directed to decide the issue after allowing reasonable opportunity of hearing to assessee.’ (Emphasis supplied)
Addition on account of sale of sugar at concessional rate :
‘25. We find that the Tribunal in Majalgaon Sahakari Sakhar Karkhana Ltd. Vs. ACIT (supra) have remitted the issue back to the 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 Karkhana 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 same parity of reasoning, this issue is also remitted back to the Assessing Officer to decide in line with same directions.
Further in some cases, sugar is given at particular quantity, free of cost, as per Government approval, instead of monthly concessional sugar. Such cases are to be decided independent of Krishna S.S.K. Ltd. ratio. The Assessing Officer is directed to take note of the Government approval in this regard, while deciding the issue.’ (Emphasis supplied)
ITAT-Pune Page 5 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13
3. Disallowance of contribution made to VSI : 30. Similarly, the deduction on account of provision of VSI contribution stands decided in favour of assessee by earlier decision of Tribunal and even in Majalgaon Sahakari Sakhar Karkhana Ltd. Vs. ACIT (supra).
4. Disallowance of contribution to Chief Minister Relief Fund : 32. Now, coming to the next issue of contribution to Chief Minister’s Fund, wherein though the addition needs to be confirmed in the hands of assessee, but the matter is set aside to the file of Assessing Officer to allow the consequent deduction under section 80G of the Act The relevant findings of Tribunal in Majalgaon Sahakari Sakhar Karkhana Ltd. Vs. ACIT (supra) are in paras 19 to 21 of the order, which read as under:-
“19. Another issue raised in some of the appeals is against the confirmation of addition on account of contribution made to Chief Minister Relief Fund.
The assessee contributed certain amount in the Chief Minister Relief Fund and claimed deduction for the same in its Profit and loss account. The AO observed that this fund established by the State Government is covered u/s.80G(iiihf) of the Act and, as such, the contribution is deductible at 50% of the aggregate of the sums specified. He, therefore, disallowed the amount, which action came to be countenanced in the first appeal.”
Following the same parity of reasoning, we direct the Assessing Officer to disallow the claim made as business expenditure, but allow the claim of deduction under section 80G of the Act, on verification.(Emphasis supplied)
5. In the light of aforestated facts and circumstances, we shall first take up ITA No. 412/PUN/2022.
ITAT-Pune Page 6 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 4. After hearing to rival contentions of both the parties on legal & meritorious substantive grounds; and subject to the provisions of rule 18 of ITAT-Rules, 1963, perused the material placed on records, case laws relied upon by the appellant Revenue as well the respondent assessee and duly considered the facts of the case in the light of settled legal position, which are also forewarned to respective parties to refute.
We note that, upon the remittance of these issues, the Ld. AO vide notice u/s 142(1) dt. 13/09/2021 called upon the assessee to adduce necessary evidential documents in support of its claim for deduction, however the appellant assessee failed to respond. In the event following the principle of natural justice one more notice dt. 20/09/2021 was also served to the assessee, but same remain futile. In these circumstances the Ld. AO on the basis of material available on record, reiterating earlier version of observations and findings has culminated these assessment proceedings u/s 144 r.w.s. 254 r.w.s 144B of the Act. Thus the appellant assessee seen to have neglected the opportunities granted by opted-out to avail the benefit of second innings to prove its claim on evidences.
We further note that, when these matter travelled to Ld. FAA in second round of appeal, the Ld. NFAC called for information and necessary documents vide notice dt. 29/08/2022, this was replied by the appellant assessee with written submission. However such submission did ITAT-Pune Page 7 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 not effectively establish the claims of the appellant, for the reasons Ld. NFAC vide notice dt. 11/03/2023 sought further clarification, but the assessee failed to attend. Following principle of natural justice, the Ld. NFAC served another notice dt. 26/03/2023, wherein the appellant just reiterated its earlier submission without adducing evidential documents called for and without offering explanation in support of its claim. This inattentiveness on the part of appellant resulted into confirming these disallowances/additions on merits, except directing relief towards excessive purchase price computation, as placed at para 6 to 8 of impugned orders as; 1. Disallowance of excessive sugarcane price paid (Pg-33) : ‘6. Given all of the above facts, the AO is directed to recomputed the expenses made by the assesse for purchase of sugarcane as per the legislative intent inherent in the finance bill 2023, as an additional relief flowing from the amendment inserted in the shape of section 36(1)(xvii) by the Finance Act, 2015. The clarification brought out by CBDT vide circular no 8/2021 dated 25.10.2021 on the said amendment also needs to be followed. This ground of appeal is allowed for statistical purpose.’ (Emphasis supplied)
2. Addition on account of sale of sugar at concessional rate : ‘7. The issue of sale of sugar at concessional rate has also been examined. The addition amounting to Rs. XX,XX,XXX/- on this issue the AO refers to the ITAT’s direction to examine the issue in the light of Supreme Court’s decision in ITAT-Pune Page 8 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 the case of Krisna Sahakari Sakhar Karkhana Limited. The assessment order is completely silent on this issue. The assessee had arraigned this point of non-consideration of the direction. Additionally the contention raised of the smallness of the quantity involved and long term precedents of member benefitting because of such rebates are noteworthy. The ground no. 2 of appeal is upheld.’ (Emphasis supplied)
3. Disallowance of contribution made to VSI : ‘8. An amount of Rs. XX,XX,XXX/- had been disallowed by the AO on the grounds that the deduction claimed u/s 35(1) of the Act had not been paid. Section 35(1) though makes for sums even laid out for the purpose of scientific research. Notwithstanding the claim had to be backed by evidence of VSI having been approved by the Central Government as an eligible Research Institution. In the absence of such proof been provided either during assessment or appellate proceedings the claim u/s 35(1) can’t be upheld. The ground no. 3 is accordingly dismissed.’ (Emphasis supplied)
4. Disallowance of contribution to Chief Minister Relief Fund (For AY 2012-13 arising only in ‘8. An amount of Rs. XX,XX,XXX/- had been disallowed by the AO on the grounds that the assessee had claimed the above amount as expenditure against Chief Minister Relief Fund but didn’t produce any documentary proof to substantiate the genuineness of the expenses incurred. Notwithstanding the claim had to be backed by evidence of transaction made. Moreover the contention of the AO that it ITAT-Pune Page 9 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 doesn’t tantamount to business expense is irrefutable. As per AO: “8.3 The non-compliance of the assessee had led the AO to believe that the assessee had no submission to make to verify the genuineness of the transactions. Further, Chief Minister Relief Fund was not wholly & exclusively business expenses. Thus it should be disallowed from profit and loss account. Hence Rs. XX,XX,XXX/- is disallowed and added back to the total income of the assessee” In the absence of such proof been provided either during assessment or appellate proceedings the above mentioned claim can’t be upheld. Though contribution to Chief Minister Relief Fund are eligible for deduction under section 80G(2)(iihf) the said deduction is allowable subject to conditions stated in the section referred to the above and also on production of a certificate under 80G from the fund. In the absence of the same this aspect can also not be considered. The ground no. 4 of the appeal is accordingly dismissed.’ (Emphasis supplied)
At the hearing, the learned counsel for the assessee [for short ‚AR‛] without placing on records any evidential documents in support of claims made in the grounds of appeals, has simply pressed into service the decisions of Co-ordinate bench in in case of ‘The Malegaon Sahakari Sakhar Karkhana Ltd. Vs ACIT’, and Hon’ble Jurisdictional High Court of Bombay in ‘CIT Vs Jai Ambika Sahakari Sakhar Karkhana Ltd.’ and of Hon’ble Apex Court in the case of ‘Sri Venkata Satyanarayana Rice Mill Contractors Vs CIT’ reported in 223 ITR 101 (SC) and prayed for remanding the matter to Ld. AO with one more opportunity to prove its claims.
ITAT-Pune Page 10 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13
Au contraire, the learned departmental representative Mr. Patel [for short ‚DR‛], objecting to the prayer of appellant to allow to adduce the necessary evidences by remanding the matter again to assessing officer. The Ld. DR adverting the impugned orders vehemently contended that, during the original assessment proceedings and the first round of appellate proceedings before Ld. CIT(A), the appellant inspite of several notices did not bother to adduce any supporting, consequent to which the proceedings in the first round were culminated with aforestated additions/disallowance. When the matter was set- aside to the file of assessing officer by the Tribunal, the assessees again adopted dilatory tactics and dejectedly failed to prove its claim with cogent evidences. In this circumstance it would be unjust to the Revenue if the matter is again restored to the file of assessing officer for de-nova adjudication, as such it would be futile exercise for the negligent appellant assessee.
As we observed that, in the second round of assessment as well appellate proceedings, the disallowance of excessive sugarcane purchase price paid and addition on account of sale of sugar at concessional rate were continued in the absence of effective representation by the appellant assessee. The appellant did opted not to respond to notices, adduce necessary evidences to prove its claim to the satisfaction of the tax authorities below. Whereas failure on the part of appellant to produce the certificate of VSI as recognised research institute and further failure to produce the receipt of contribution to Chief Minister Relief Fund resulted into continuing the disallowances on such account. Moreover the appellant failed to prove any reasonable cause beyond ITAT-Pune Page 11 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 such multiple failures before both the tax authorities below, which in our considered view the appellant disregards and disrespect towards quasi-judicial proceedings and authorities. For the reason we see strong force in the averments of the Ld. DR, that remanding these issues again (effectively third time) to the Ld. AO for verification would certainly cause hardship to the Revenue and third innings to the luxury litigant assessee and we hold so in the light of decision of Hon'ble Karnataka High Court in ‘Karnataka Wakf Board Vs State of Karnataka,’ found reported in AIR 1996 (Kar.) 55, wherein their lordship vide page 63 & 64 held that: "Where the party had an opportunity of adducing evidence in the case but with open eyes failed to adduce that evidence, the case should not be remanded to give a second chance to the party to adduce that evidence. The policy of the law is that once that matter has been fairly tried between the parties, it should not, except in special circumstances, be reopened and retrieved. In a recent decision their Lordships of the Supreme Court laid down that power to order retrial after remand, where there had already been a trial on evidence before the court of first instance, cannot be exercised merely because the Appellate Court is of the view that the parties who could lead better evidence in the Courts of first instance have failed to do so." (Emphasis supplied) 10. Perchance, in our considered view would have been to remit these issues back to the Ld. AO, had the appellant society not adopted any dilatory tactics before the tax authorities below in the second round and produced the correct records for arriving at the correct excess purchase price paid, the amount of concessional sugar supplied to members vis-à-vis non-members, receipt of payment to CMR fund and recognition certificate of VSI etc. Therefore we ITAT-Pune Page 12 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 are inclined to believe that the appellant assessee deliberately adopted lax tactics before the tax authorities with a view not to enable the Ld. AO to carry out due verification so as to satisfy about actual excessiveness of purchase price paid for sugarcane, actual supply of sugar at concessional rate, and further to verify the actual contribution to Chief Minister Relief Fund, and the eligibility of claim towards the contribution to VSI etc. It is settled principle of law that the assessee-company cannot be given a second innings to make good its case and we find that same our view has been concurred by Co- ordinate benches in the case of ‘ACIT Vs Anima Investment Ltd.’ reported in 73 ITD 125 (Delhi) (TM) and in ‘ACIT Vs Arunodoi Apartments (P.) Ltd.’ reported in 123 Taxman 48 (Gauhati).
In the light of aforestated discussion we find no cogent reasons to deviate in the present case by remanding these matters second time (effectively third time) for the benefit of party seeking it to fill-up gaps in the light of ratio laid down by Hon’ble Gujarat High Court in ‘Rajesh Babubhai Damania Vs CIT’ 251 ITR 541, and in ‘CIT v. Harikishan Jethalal Patel’ reported at 168 ITR 472. Placing reliance on the decision of co-ordinate bench in ‘Zuari Leasing & Finance Corpn. Ltd. Vs ITO’ reported in 112 ITD 205 (TM), we reiterate that, the appeals are not to be decided for giving 'one more innings' to lower authorities in the appellate jurisdiction.
In the absence of any deprecative material placed against the disallowances/additions before us and failure on the part appellant to bring ITAT-Pune Page 13 of 14
Karmyogi Shankarraoji Patil SSK Ltd., & 412/PUN/2023 A.Y. 2009-10 & 2012-13 any facts so has to deviate from the actions of tax authorities below, we respectfully following judicial discipline and foregoing case-laws, see no reasons to interfere with the impugned orders as they have rightly dealt with the issues under appeal. Further we also deem both these cases are unfit for remanding back to the file of the Ld. AO for verification of claim once again, for the reason that it would turn as third innings to the luxury litigant. Therefore, all three grounds raised in deserves dismissal for the aforestated reasoning’s.
Resultantly, both appeals of the appellant assessee are DISMISSED. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Thursday day 06th day of July, 2023.
-S/d- -S/d- PARTHA SARATHI CHAUDHURY G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / PUNE ; ददनाांक / Dated : 06th day of July, 2023. आदेश की प्रतितलतप अग्रेतिि / Copy of the Order forwarded to : 1.अपीलाथी / The Appellant. 2. प्रत्यथी / The Respondent.
The Pr.CIT, -4, Pune 4. The NFAC, New Delhi (India) 5. DR, ITAT, Bench ‘A’, Pune 6. गार्डफ़ाइल / Guard File. Ashwini आदेशानुसार / By Order वररष्ठ दनजी सदिव / Sr. Private Secretary आयकर अपीलीय न्यायादधकरण, पुणे / ITAT, Pune.
ITAT-Pune Page 14 of 14