TMI Blog2015 (5) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... order that Kisan Sahkari Chini Mills, Puranpur has reported yield at 9.38% in the year under consideration as against 8.37% reported by the assessee. Hence, it is seen that the facts of the present year are identical to the facts in assessment year 2007-08. Since under similar facts, the addition was deleted by the Tribunal in assessment year 2007-08, we do not find any reason to take a contrary view in the present year and therefore, on this issue also, we decline to interfere in the order of CIT(A). - Decided against revenue. Undisclosed Production of Baggasse and its sale without accounting for in the books of account - CIT(A) deleted the addition - Held that:- The yield of main product or by-product is not constant in each and every case and every year. It is dependable on so many factors and therefore, merely on this basis that in the case of one assessee in one particular year, higher yield was recorded and that should be considered as yield of baggasse for all the assessees in all the years, is not correct. There is no other reason given by the Assessing Officer for doubting the yield of baggasse reported by the assessee in the Tax Audit Report. In our considered opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the Assessment Proceedings. 3. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that this issue is covered in favour of the assessee by the Tribunal decision in assessee s own case for assessment year 2007-08 in I.T.A. No.71/Lkw/2014 dated 10/12/2014, copy of which is available on pages 151 to 157 of the paper book. In particular, our attention was drawn to Para 13 of the Tribunal decision. 4. We have considered the rival submissions. We find that in assessment year 2007-08 also, the issue in dispute before the Tribunal was regarding deletion of addition by the Assessing Officer on account of late deposit of employees contribution to Provident Fund and it was held by the Tribunal in that year that since the entire amount of Provident Fund contribution was deposited before due date of filing of return, the same is allowable as per the amended provisions of section 43B of the Act. In the present year also, a clear finding is given by CIT(A) on page No. 4 of his order that all the amounts of Provident Fund has been deposited before the due date of filing the retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Assessing Officer that any adverse finding has been recorded by the Excise Department. In the absence of any adverse finding by Excise Department and also in the absence of any material brought on record by the Assessing Officer indicating sugar production suppression, we do not find any reason to interfere in the order of CIT(A) on this issue also. Ground No. 2 is also rejected. 7.1 In the present year also, the Assessing Officer has adopted yield at 9% as against 8.37% reported by the assessee. The Assessing Officer has alleged in the assessment order that Kisan Sahkari Chini Mills, Puranpur has reported yield at 9.38% in the year under consideration as against 8.37% reported by the assessee. Hence, it is seen that the facts of the present year are identical to the facts in assessment year 2007-08. Since under similar facts, the addition was deleted by the Tribunal in assessment year 2007-08, we do not find any reason to take a contrary view in the present year and therefore, on this issue also, we decline to interfere in the order of CIT(A). Accordingly, ground No. 2 is rejected. 8. Ground No. 3 is as under: 3. That the Commissioner of Income Tax ( Appeals ) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... So far the assessment order is concerned, we find that in the assessment order, the Assessing Officer has referred to a case of Kisan Sahkari Chini Mill, Powanya for assessment year 92-93 whereas in the present case, the assessment year involved is 2007-08. The yield of main product or by-product is not constant in each and every case and every year. It is dependable on so many factors and therefore, merely on this basis that in the case of one assessee in one particular year, higher yield was recorded and that should be considered as yield of baggasse for all the assessees in all the years, is not correct. There is no other reason given by the Assessing Officer for doubting the yield of baggasse reported by the assessee in the Tax Audit Report. In our considered opinion, on the basis of a single case of a different assessee for one assessment order i.e. 92-93, the addition made by the Assessing Officer is not justified in the absence of any other supporting material. We, therefore, hold that no interference is called for in the order of CIT(A) on this issue. Ground No. 1 is rejected. 10.1 In the present year, the Revenue could not point out any difference in facts and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd reasonable opportunity of being heard to both the sides with similar directions as given by the Tribunal in assessment year 2007-08, as reproduced above. This ground is allowed for statistical purposes. 14. In the result, the appeal of the Revenue is partly allowed for statistical purposes. 15. Now we take up the appeal of the Revenue for assessment year 2008- 09 i.e. I.T.A. No.163/Lkw/2014. 1. That the order of the Commissioner of Income Tax (Appeals), Bareilly is erroneous in law and on facts in deleting the addition made by the Assessing Officer on account of low production/yield of Bagasse at ₹ 29,31,485/- as the assessee has failed to produce documentary evidences during the course of assessment proceedings. The CIT (A) has not appreciated the findings given by the Assessing Officer in the assessment order passed. 16. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that this issue is covered in favour of the assessee by the same Tribunal order in assessment year 2007-08. 17. We have considered the rival submissions. Since this issue is squarely c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a correct figure. In this regard, he drawn our attention to page No. 15 of the paper book as per which the assessee has shown quantity of molasses manufactured during this year at 197289 quintals. He submitted that the production of molasses declared by the assessee is almost equal to the production of molasses estimated by the Assessing Officer in the assessment order at 198287 quintals and therefore, no addition is justified. 23. We have considered the rival submissions. We find that the basis adopted by the Assessing Officer for making this addition is that the production of molasses should have been to the extent of 198287 quintals and for this, the Assessing Officer applied yield percentage at 5.8% of the sugarcane crushed. Thereafter, the Assessing Officer has noted that the production of molasses disclosed by the assessee is not lower but this is factually incorrect because as per Annexure to Form 3CD on page No. 15 of the paper book, the production of molasses declared by the assessee is 197289.57 quintals and therefore, the production of molasses estimated by the Assessing Officer and disclosed by the assessee are almost equal and for such small difference in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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