ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE -1, KOLHAPUR, KOLHAPUR vs. SHREE TATYASAHEB KORE WARANA SAHAKARI SAKHAR KARKHANA LTD., MAHARASHTRA
आयकर अपीलीय अिधकरण ”बी” Ɋायपीठ पुणेमŐ।
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCHES “B” :: PUNE
BEFORE DR.DIPAK P. RIPOTE, ACCOUNTANT MEMBER
AND SHRI VINAY BHAMORE, JUDICIAL MEMBER
आयकर अपील सं. / ITA Nos.1154/PUN/2024
िनधाᭅरण वषᭅ / Assessment Year : 2006-07
The Assistant Commissioner of Income Tax,
Circle-1, Kolhapur.
V s
Shree Tatyasaheb Kore
Warana Sahakari Sakhar
Karkhana Ltd.,
Gat No.1102, At post
Warananagar, Kolhapur,
Maharashtra – 416113. PAN: AAAAT3108M
Appellant/ Revenue
Respondent /Assessee
Assessee by Shri Pramod Shingte – AR
Revenue by Shri Ajay Kumar Keshari – CIT(DR)
Date of hearing
26/12/2024
Date of pronouncement 31/01/2025
आदेश/ ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the Revenue directed against the order of ld.Commissioner of Income Tax(Appeals)[NFAC] under section 250 of the Income Tax Act, 1961; for the A.Y.2006-07, dated
27.03.2024. The Revenue has raised the following grounds of appeal :
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“1. On facts and in the circumstances of the case and in law, the ld.CITA) erred in deleting the addition on account of sale of sugar on concessional rate and ignoring the fact that the Hon'ble ITAT vide various decisions has restored the issue to the file of the 40
2) On facts and in the circumstances of the case and in law, the ICITIA) erred in not appreciating the fact that in assessee's own case for AY 2015-16, the Hon'ble ITAT has restored the issue to the file of AO by following the Coordinate Bench of Pune Tribunal's decision in the case of Shri Adinath SSK Vs. ACIT, which in turn has relied on the coordinate bench of Tribunal in the case of ACIT Vs. Shri Shankar
4) The appellant craves leave to add, alter, amend and modify any of the above or all grounds raised at time of proceedings before the Hon'ble Tribunal which may please be granted.”
Submission of ld.DR:
The ld.DR for the Revenue relied on the order of the Assessing Officer. Ld.DR submitted that since A.Y.2015-16 has been set-aside by ITAT to Assessing Officer(AO) for denovo adjudication following the principles laid down by Hon’ble Supreme Court in the case of CIT Vs. Krishna SSK [2012] 211 Taxmann 109 (SC), the A.Y.2006-07 may also be set-aside. Ld.DR also relied on the decision of Co-ordinate Bench
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of the ITAT Pune in the case of Shree Adinath SSK Ltd., in ITA
No.485/PUN/2019 for A.Y.2013-14 dated 11.05.2022. 2.1 The ld.CIT(DR) in the written submission submitted that it is evident that the sale of sugar by the sugar factories to their members is not a discretionary decision of the factory, but is regulated under section 79(A) of the Maharashtra Co-operative
Societies Act, 1960. In accordance with this provision, the Sugar
Commissioner, Pune has issued a circular to regulate the sale of sugar to members. As stated above, the sale of sugar to a member should not exceed 5 kg per month at a concessional/subsidized rate. Hence, there is no ambiguity regarding the regulation of sugar sales to members. Furthermore, it is important to highlight that the Assessing Officer(AO) took note of this regulation and the circular and incorporated the same into the assessment orders for A.Y.2017-18 and A.Y.2018-19. The AO carefully examined the matter based on the practices adopted by the State Government as per its Policy and made an addition for the Differential Amount between the Market Priceand the Concessional Rate.
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2.2 It is evident that the State Government has already enacted legislation under section 79(A) of the Maharashtra Co-operative
Societies Act, 1960 to discourage the practice of selling sugar at concessional rates. Additionally, the Hon’ble Supreme Court’s decision in CIT Vs. Krishna SSK [2012] 211 Taxmann 109 (SC), along with the provisions of the Maharashtra Co-operative
Societies Act, 1960 and the circular dated 01.03.2006 issued by the Sugar Commissioner, Pune have provided clear guidelines on the matter.
Submission of ld.AR :
The ld.Authorised Representative(ld.AR) for the Assessee filed paper book. Ld.AR invited our attention to the assessment order for A.Y.2006-07 dated 28.09.2021. The Assessing Officer has referred in paragraph-1 of the assessment order to the Hon’ble ITAT Pune’s order in ITA No.1210/PUN/1997 & Others and observed that ITAT in Assessee’s own case has set-aside the issue of sale of sugar at concessional rate to the Assessing Officer. Ld.AR invited our attention to the Consolidated Order of ITAT in 120 cases, dated 01.05.2019 and explained that the assessee’s case for A.Y.2006-07 does not appear in the said 120 cases list.
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Therefore, ld.AR submitted that AO has grossly erred in passing the order regarding sale of sugar at concessional rate for A.Y.2006-
07. Ld.AR submitted that the issue had attained finality by Hon’ble Bombay High Court’s order in assessee’s own case in Income Tax Appeal(Lodg.) No.2726 of 2009, dated 01.02.2010
vide which Hon’ble Bombay High Court dismissed the appeal of the Revenue. Ld.AR further submitted that Revenue has not filed any SLP against the decision of Hon’ble Bombay High Court regarding sale of sugar at concessional rate. Therefore, ld.AR pleaded that this issue has attained finality for the assessee.
Findings & Analysis :
We have heard both the parties and perused the records. It is observed that the assessment order dated 28.09.2021 is passed under section 143(3) r.w.s. 262 of the Act. The Assessing Officer has mentioned in the assessment order that assessment order for A.Y.2006-07 was passed on 26.12.2008 determining income at Rs.90,83,66,451/-, by making addition of Rs.80,65,02,150/- on account of excessive sugar cane price paid to the farmers and Rs.3,07,64,048/- on account of sale of sugar at concessional rate to members and non-members. Assessing Officer further mentioned
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in the assessment order that assessee had filed appeal against the assessment order dated 26.12.2008 before ld.CIT(A). Then, the matter went to Hon’ble ITAT Pune Bench. Then, the Assessing
Officer in the assessment order dated 28.09.2021 has mentioned as under :
“Since, there were a number of appeal on the similar ground against the order of CIT(A), filed either by the revenue or the assessee, the Hon’ble ITAT Pune Bench Pune passed a consolidated order in the ITA No.1210/PUN/1997 &Ors Siddheshwar SSK Ltd. &Ors pronounced on 01-05-2019.”
1 Thus, Assessing Officer observed that the issue of excess cane price paid to farmers and sale of sugar at concessional rate has been set-aside by ITAT to the Assessing Officer for denovo adjudication. The Assessing Officer then passed the assessment order dated 28.09.2021 and made an addition of Rs.3,07,64,048/- on account of sale of sugar at concessional rate and Rs.80,65,02,150/- on account of excessive cane price. Aggrieved by the assessment order, assessee filed appeal before the ld.CIT(A). Ld.CIT(A) vide order dated 27.03.2024 allowed the ground of appeal regarding Excess Cane Price and Sale of Sugar at Concessional Rate. Aggrieved by the order of the ld.CIT(A), Revenue has filed appeal before this Tribunal.
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We have perused the Hon’ble ITAT Pune’s Order in ITA No.1210/PUN/1997 & Ors., referred by Assessing Officer. For ready dereference, the first page of the said order is reproduced here as under :
1 We have carefully studied the Hon’ble ITAT Pune’s Order dated 01.05.2019 and observed that nowhere assessee’s case for ITA No.1154/PUN/2024 [R]
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A.Y.2006-07 appears. The assessee’s case for A.Y.2007-08 and A.Y.2008-09 appear in the said list. It means, Hon’ble ITAT Pune has not set-aside the issue to the Assessing Officer for A.Y.2006-
07. Therefore, the Assessing Officer has erred in assuming the juri iction for A.Y.2006-07 by referring to the ITAT Order dated
01.05.2019 mentioned above.
2 In these facts and circumstances of the case, the Question of sale of sugar at concessional rate for A.Y.2006-07 had attained Finality in the case of Assessee. Therefore, Assessing Officer has no juri iction to pass the assessment order dated 28.09.2021, qua sale of sugar at concessional rate. Accordingly, all the Grounds of appeal raised by the Revenue pertaining to sale of sugar at concessional rate are dismissed.
In the result, appeal of the Revenue is dismissed. Order pronounced in the open Court on 31st January, 2025. (VINAY BHAMORE) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER
पुणे / Pune; ᳰदनांक / Dated : 31st Jan, 2025/ SGR*
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आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to :
1. अपीलाथᱮ / The Appellant.
2. ᮧ᭜यथᱮ / The Respondent.
3. The CIT(A), concerned.
4. The Pr. CIT, concerned.
5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “बी” बᱶच,
पुणे / DR, ITAT, “B” Bench, Pune.
गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER,
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Senior Private Secretary
आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.