SHRIGONDA SAHAKARI SAKHAR KARKHANA LTD.,AHMEDNAGAR vs. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE, AHMEDNAGAR

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ITA 222/PUN/2020Status: DisposedITAT Pune10 October 2022AY 2016-175 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the issue of concessional sale of sugar to members is a recurring dispute that has been restored to the Assessing Officer by a co-ordinate bench. Therefore, the present appeal is also restored to the Assessing Officer for fresh adjudication.

What were the facts?

The assessee appealed against the disallowance of Rs. 10,07,830/- representing the sale of sugar to its co-operative members at concessional rates. The Revenue initially argued that the appeal was not maintainable due to non-payment of self-assessment tax, which was rejected.

What were the issues?

Whether the difference between the market price and concessional price of sugar sold to members constitutes appropriation of profit, and if the matter should be restored to the Assessing Officer for fresh consideration based on Supreme Court directions.

Which sections of the Income-tax Act were involved?

Section 143(3)

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Income Tax Appellate Tribunal, “B” BENCH, PUNE

Before: SHRI S.S.GODARA, JM & SHRI G.D. PADMAHSHALI, AM

For Appellant: Shri Hanmant Dhavle
For Respondent: Shri M.G.Jasnani
Hearing: 03.10.2022Pronounced: 10.10.2022

सुनवाई की तारीख / Date of Hearing : 03.10.2022 घोषणा की तारीख / Date of Pronouncement : 10.10.2022 आदेश / ORDER PER S. S. GODARA, JM :

1.

This assessee’s appeal for AY 2016-17 arises against the CIT(A)-2, Pune’s order dated 04/12/2019 passed in PN/ CIT(A)-2 /ACIT Cir/ AN/ 1218 /2018-19/886 involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short "the Act”.

Heard both the parties. Case file perused.

Shrigonda SSK Ltd.,

2.

Learned DR submits at the outset in light of the CIT(A)’s detailed discussion in para 5 that the assessee had not paid self assessment tax and therefore, it’s lower appeal before him was not maintainable.

3.

The assessee on the other hand took us to its first and foremost substantive ground that it had already paid total tax of Rs.8,67,514/- followed by further details of corresponding acknowledgment no as well as the date of filing 30.09.16. We therefore reject the Revenue’s preliminary argument in light thereof.

4. Next comes assessee’s sole substantive grievance on merits challenging correctness of both the lower authorities action disallowing the amount in issue Rs.10,07,830/- representing sale of sugar to its sugar co-operative members at concessional rates. It emerges during the course of hearing the instant sale issue is no more re-integra as tribunal’s co-ordinate bench in Shivajirao Nilangekar Patil SSK Ltd. Vs DCIT dated 16.09.2019 has restored the very dispute to the Assessing Officer as follows :-

“8. The second ground is against the confirmation of disallowance of Rs.36,294/- on account of sugar sold to members at concessional price.

9.

Having heard both the sides and gone through the relevant material on record, it is observed that the AO made addition of the difference between the market price and the concessional price at which sugar (final product) was given to farmers and cane growers. In this regard, it

Shrigonda SSK Ltd., is observed that this issue has been considered by the Hon'ble Supreme Court in the case of CIT Vs. Krishna Sahakari Sakhar Karkhana Limited (2012) 27 taxmann.com 162 (SC). Vide judgment dated 25-09-2012, the Hon'ble Supreme Court noticed that the difference between the average price of sugar sold in the market and the price of sugar sold by the assessee to its members at Shivajirao Nilangekar Patil Sahakari Sakhar Karkhana Ltd., concessional rate was taxed by the Department under the head "Appropriation of profit". The Hon'ble Summit Court remitted the matter to the CIT(A) for considering, inter alia,: "whether the abovementioned practice of selling sugar at concessional rate has become the practice or custom in the Co-operative sugar industry?; and whether any Resolution has been passed by the State Government supporting the practice?; The CIT(A) would also consider on what basis the quantity of the final product, i.e. sugar, is being fixed for sale to farmers/cane growers/Members each year on month-to-month basis, apart from others from Diwali?" The issue under consideration can be decided by an appropriate lower authority only on the touchstone of the relevant factors noted in the above judgment. In our considered opinion, it would be just and fair if the impugned order on this score is set aside and the matter is restored to the file of AO, instead of to the CIT(A), for fresh consideration as to whether the difference between the average price of sugar sold in the market and that sold to members at concessional rate is appropriation of profit or not, in the light of the directions given by the Hon'ble Supreme Court in the case of Krishna Sahakari Sakhar Karkhana Limited (supra). Restoration to the AO ITA No.668/PUN/2014 Shivajirao Nilangekar Patil Sahakari Sakhar Karkhana Ltd., is necessitated because, following the judgment of the Hon'ble Apex Court in the case of Tasgaon Taluka S.S.K. Ltd. (supra), we have remitted the issue of payment of excessive price to the file of AO, and as such, the instant issue cannot be sent to ld. CIT(A) as it would amount to simultaneously sending one part of the same assessment

Shrigonda SSK Ltd., order to the AO and other to the CIT(A), which is not appropriate. We order accordingly.” We adopt very course of action herein as well and assessee’s sole substantive grievance is restored back to the file of Assessing Officer for his afresh adjudication as per law.

5.

This assessee’s appeal is allowed for statistical purposes in above terms. Order pronounced in the Open Court on this 10th day of October, 2022.

Sd/- Sd/- (G.D. PADMAHSHALI) (S.S. GODARA) लेखा सदस्य/ ACCOUNTANT MEMBER न्याधयक सदस्य/JUDICIAL MEMBER पुणे / Pune; ददनांक / Dated : 10th October, 2022. Ashwini आदेश की प्रधतधलधप अग्रेधषत / Copy of the Order forwarded to : अपीलाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2.

3. The CIT(A)-2, Pune.

4.

The Pr.CIT-1, Pune. धवभागीय प्रधतधनधध, आयकर अपीलीय अधधकरण, “बी” बेंच, 5. पुणे / DR, ITAT, “B” Bench, Pune. गार्ा फ़ाइल / Guard File. आदेशानुसार / BY ORDER, 6. // True Copy //

Senior Private Secretary आयकर अपीलीय अधधकरण, पुणे / ITAT, Pune.

Shrigonda SSK Ltd.,

S.No. Details Date Initials 1 Draft dictated on 04.10.2022 2 Draft placed before author 07.10.2022 Draft proposed & placed before the Second 3 Member 4 Draft discussed/approved by Second Member 5 Approved Draft comes to the Sr. PS/PS 6 Kept for pronouncement on 7 Date of uploading of Order 8 File sent to Bench Clerk 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order

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