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Facts
The assessee, a cooperative society engaged in sugarcane and sugar business, faced additions on account of excess sugarcane price paid and sale of sugar at concessional rates. The CIT(A) passed an ex-parte order confirming these additions as the assessee failed to appear due to notices being sent to an old email ID.
Held
The Tribunal set aside the ex-parte order of the CIT(A) and remanded the matter back for fresh adjudication, directing the CIT(A) to provide the assessee with a reasonable opportunity of hearing. The grounds relating to merit were rendered infructuous.
Key Issues
Whether the CIT(A) erred in passing an ex-parte order without considering the merits of the case, and if the matter should be remanded for fresh adjudication due to non-receipt of hearing notices.
Sections Cited
250, 36(1)(xvii), 143(3), 254, 143(1), 155(19)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI MANISH BORAD & SHRI VINAY BHAMORE
ORDER PER BENCH : These appeals filed by the assessee are directed against the separate orders dated 26.06.2024 passed by Ld. CIT(A)/NFAC for the assessment years 2010-11 to 2014-15 respectively. 2. There is delay in filing of the present appeals. We are satisfied with the reasons mentioned in the application for condonation of delay duly supported by an affidavit that the to 2198/PUN/2024 applicant was prevented by sufficient cause for not filing these appeals within the prescribed time limit. After hearing Ld. DR, we condone the delay and proceed to adjudicate the appeals.
Since identical facts and common issues are involved in all the above captioned five appeals of the assessee, therefore, we proceed to dispose of the same by this common order.
First, we shall take up the appeal of the assessee in for A.Y. 2010-11 for adjudication as the lead case.
A.Y. 2010-11 : 5. The appellant has raised the following grounds of appeal :-
1. 1. 1. On the facts and the circumstances of the case and in law, learned CIT appeal erred in passing Ex-parte order u/s 250 of The Income Tax Act, 1961 without discussing the merit of the case, appellant prays for restoring the matters to the file of learned CIT Appeal for considering the appeal on merit.
1.
Without prejudice to the above grounds following grounds are taken on merit: On facts and in law - 2.1 The learned CIT(A) erred in confirming the addition on account of excess sugarcane purchase price paid over statutory minimum price (FRP) of Rs.27,83,24,995/-. 2.2 The learned CIT(A) erred in confirming additions of ₹ 27,83,24,95/- on account of excess cane price paid over FRP without taking into account the latest statutory amendment in the Act done by insertion of new clause to 2198/PUN/2024 (xvii) under sub-section (1) of section 36 of the Income Tax Act. 2.3 The learned CIT(A) failed to realize that the law on the subject had changed w.e.f 01/04/2016 after insertion of clause (xvii) in section 36(1) whereby the price approved by the Government ought to have been allowed. 2.4 The learned CIT(A) failed to appreciate that CBDT by its Circular No. 18 issued on 25/10/2021 had clarified that "Government" mentioned in 36(1)(xvii) included a State Govt, which fixed price of cane under any State regulations. 2.5 The learned CIT(A) erred in confirming the addition of Rs 2,76,91,229/- on account of sale of sugar at concessional rate. 2.6 The learned CIT(A) erred in confirming the addition of Rs.2,76,91,229/- on account of sale of sugar at concessional rate, when the issue was covered in the assessee's favour by the decision of ITAT Pune Bench in case of Chhatrapati Shahu S.S.K Ltd, Kagal and by the decision of Hon'ble High Court of Mumbai in the case of Terana S.S.K. Ltd, Dhoki.
3. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal
.”
6. Facts of the case, in brief, are that the assessee is a society registered under the Maharashtra State Co-operative Societies Act 1960, engaged in the business of sale purchase of sugarcane and manufacturing of sugar. The return of income for the period under consideration was furnished on 25.09.2010 by declaring an income of Rs.7,86,30,659/- subsequently return was revised on 18.03.2011 and revised income Rs.7,51,83,484/- was declared and set-off of brought forward losses of Rs.7,51,83,484/- and a refund of to 2198/PUN/2024 Rs.45,600/- was also claimed. Subsequently, the matter travelled up to the Tribunal and the coordinate bench of this Tribunal set-aside the matter to the file of Assessing Officer to decide the matter of addition afresh in respect of following two issues :- (i) Addition/disallowance towards excessive sugarcane price paid to members and non-members. (ii) Addition on account of sale of sugar at concessional rate to members and non-members.
7. Accordingly, the Assessing Officer issued notice to the assessee to furnish its reply with respect to above two issues. Vide reply dated 25.09.2021 the assessee furnished its submission. After considering the above submission of the assessee, the Assessing Officer completed the assessment proceedings and vide order dated 29.09.2021 passed the assessment order u/s 143(3) r.w.s. 254 of the IT Act by determining the total income at Rs.38,11,99,710/-. The above income includes income of Rs.7,51,83,484/- determined u/s 143(1) of the IT Act and addition of Rs.27,83,24,995/- on account of excessive sugarcane price paid to members and non-members and to 2198/PUN/2024 addition of Rs.2,76,91,229/- on account of sale of sugar at concessional rate to members and non-members.
Being aggrieved with the above assessment order, the assessee preferred an appeal before Ld. CIT(A)/NFAC. Since the assessee remained absent, Ld. CIT(A)/NFAC dismissed the appeal filed by the assessee and consequently confirmed the additions made by the Assessing Officer.
It is the above ex-parte order against which the assessee is in appeal before this Tribunal.
Ld. AR appearing from the side of the assessee submitted before us that the ex-parte order passed by Ld. CIT(A)/NFAC is unjustified. Ld. AR submitted that the notices of hearing issued by Ld. CIT(A)/NFAC could not be seen by the assessee co-operative society since they were sent on the old email ID bhogawatissk@rediffmail.com which was not in use and the current email ID was bhogawatissk14@gmail.com which was in use thereafter. In support of this contention, an affidavit duly sworn in by the Managing Director of the society was produced before the bench. Accordingly, Ld. AR requested before the bench to provide to 2198/PUN/2024 one last opportunity to appear before Ld. CIT(A)/NFAC so that the assessee can substantiate the grounds of appeal
11. Ld. DR appearing from the side of the Revenue relied on the orders passed by the subordinate authorities and requested to confirm the same.
12. We have heard Ld. Counsels from both the sides and perused the material available on record including the affidavit regarding non-receipt of notices of hearing issued by Ld. CIT(A)/NFAC, since being sent on earlier/old email ID of the assessee co-operative society.
13. In this regard, we find that the assessee is a co-operative society engaged in the manufacturing of sugar. We further find that the additions made by the Assessing Officer were sustained by Ld. CIT(A)/NFAC by passing an ex-parte order since in the absence of knowledge of notices of hearing issued by Ld. CIT(A)/NFAC the assessee could not appear before Ld. CIT(A)/NFAC, consequently the appeal was dismissed ex-parte and the additions made by the Assessing Officer were confirmed. In this regard, Ld. counsel of the assessee produced before the bench an affidavit duly sworn in to 2198/PUN/2024 by the Managing Director of the assessee society stating the fact that earlier the society was using another email ID which was mentioned in the memo of appeal, however subsequently the assessee society started using new mail ID which was not informed to Ld. CIT(A)/NFAC therefore hearing notices were issued on old email ID. It was the sole prayer of Ld. counsel of the assessee that one last opportunity may kindly be allowed to the assessee so that the assessee society can substantiate the grounds of appeal before Ld. CIT(A)/NFAC. It was also the contention of Ld. counsel of the assessee that there is an amendment in section 155(19) of the IT Act which permits the assessee to file rectification application before the Assessing Officer with regard to allowance of excess cane price paid to members and non-members under certain conditions.
14. Considering the totality of the facts of the case and also in the interest of justice, we deem it appropriate to set-aside the ex-parte order passed by Ld. CIT(A)/NFAC and without going into merits of the case remand the matter back to the file of Ld. CIT(A)/NFAC with a direction to decide the appeal afresh and as per fact and law after providing reasonable opportunity of hearing to the assessee. to 2198/PUN/2024 The assessee is also hereby directed to respond to the notices issued by Ld. CIT(A)/NFAC in this regard and to produce explanations, submissions, evidences and other relevant documents to substantiate the grounds of appeal without taking any adjournment under any pretext, otherwise Ld. CIT(A)/NFAC shall be at liberty to pass appropriate orders as per law. Thus, the effective ground no.1 raised by the assessee is allowed for statistical purposes.
15. Since we have remanded the matter back to the file of the Ld. CIT(A)/NFAC to adjudicate de novo, rest of the grounds relating to merit become infructuous, hence not adjudicated.
16. In the result, the appeal of the assessee in for A.Y. 2010-11 is allowed for statistical purposes. to 2198/PUN/2024, A.Ys. 2011-12 to 2014-15:
17. Since the facts and issues involved in the appeal of the assessee for the assessment year 2010-11 are identical to the facts of the case for assessment years 2011-12 to 2014-15, therefore, our decision in for A.Y. 2010-11 shall apply