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2015 (5) TMI 504 - ITAT LUCKNOW

2015 (5) TMI 504 - ITAT LUCKNOW - TMI - Disallowance under section 43B - late deposit of employees contribution to the Provident Fund for Factory and Federation Staff - CIT(A) deleted the addition - Held that:- The Tribunal in assessee’s own case for assessment year 2007-08 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 c .....

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that:- 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, w .....

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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 justi .....

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/-, ₹ 1,665/-, ₹ 1,700/- and ₹ 1,735/- respectively per quintal as on 31/03/2006, in the present year, the assessee has applied a rate of ₹ 1,250/- ₹ 1,285/-, ₹ 1,320/- and ₹ 1,355/- per quintal respectively. If the same stock is lying then what is the basis of applying lower rate in the present year is not clear and CIT(A) has not given any finding on this aspect. Thus set aside the order of CIT(A) and restore the matter back to his file for deciding th .....

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for the assessment years 2006-2007 and dated 13/01/2014 for the assessment year 2008-09. Both the appeals were heard together and are being disposed of by way of this common order for the sake of convenience. 2. First we take up the appeal for assessment year 2006-07 i.e. I.T.A. No.246/Lkw/2014. Ground No. 1 is as under: 1. That the Commissioner of Income Tax (Appeals ) is not justified in deleting the addition of ₹ 47,99,382/- rightly made by the Assessing Officer under section 43B of th .....

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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 .....

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sit of Provident Fund contribution of various months and the last date of deposit is 17/11/2005 and therefore, the entire deposit was made before due date of filing of return. In fact the amount was deposited before the end of the financial year itself. Hence, by respectfully following the Tribunal decision in assessee s own case for assessment year 2007-08, we decline to interfere in the order of CIT(A) on this issue. Ground No. 1 is rejected. 5. Ground No. 2 is as under: 2. That the Commission .....

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case for assessment year 2007-08. 7. We have considered the rival submissions. We find that in assessment year 2007-08 also, addition was made by the Assessing Officer by alleging suppression of production of sugar and its sale on the basis of the facts in the case of Kisan Sahkari Chini Mills, Puranpur. The Assessing Officer has noted in that year that Kisan Sahkari Chini Mills, Puranpur has reported yield of sugar at 9.15% whereas the assessee has shown the yield at 8.74%. This addition was d .....

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ll, Puranpur, no other basis has been indicated by the Assessing Officer for doubting the yield percentage reported by the assessee. In this regard, this is very important to note that production of sugar is directly under the control and supervision of Excise Department and this is not the case 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 .....

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sessee. 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 not justified .....

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bunal decision in assessee s own case for assessment year 2007-08. 10. We have considered the rival submissions. We find that in assessment year 2007-08 also, similar issue was before the Tribunal as per ground No. 1 in that year and the addition was deleted by the Tribunal as per Para 4 and 4.1 of the Tribunal order, which are reproduced below for the sake of ready reference:- 4. We have considered the rival submissions. We find that this issue was decided by CIT(A) by making following observat .....

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tment were maintained by the assessee and no defect had been pointed out by the Excise department. RT-7(C ) the report being maintained by the assessee as per excise Rules and the yield of Baggase of 33.21% is as per report only. Further without pin pointing any single specific instance where the sale of baggase has been made outside without recording its entry in the books of accounts is only on the imagination of the A.O. In the circumstances of the case, the addition as made by the AO is dele .....

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f 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 .....

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, the Revenue could not point out any difference in facts and therefore, we do not find any infirmity in the order of CIT(A) in the present year. We decline to take a contrary view. Ground No. 3 is rejected. 11. Ground No. 4 is as under: 4. That the Commissioner of Income Tax (Appeals ) is not justified in deleting the addition of ₹ 4,08,94,043/- on account of closing stock of sugar including the Excise Duty of ₹ 2,81,69,563/- which were rightly made by the Assessing Officer on accou .....

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file of CIT(A) for fresh decision as per Para 17 of the Tribunal order. 13. We have considered the rival submissions. We find that in assessment year 2007-08, similar matter was restored back by the Tribunal to the file of CIT(A) for fresh decision as per Para 17 of its order, which is reproduced below for the sake of ready reference:- 17. There is no finding given by CIT(A) regarding the main objection of the Assessing Officer that the same stock for which the assessee adopted rate of ₹ 1 .....

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his file for deciding the issue afresh by passing reasoned and speaking order after providing adequate opportunity of being heard to both the sides. Ground No. 5 is allowed for statistical purposes. 13.1 Since there is no difference in facts in the present year, we set aside the order of CIT(A) on this issue and restore the matter back to his file for deciding the issue afresh by passing a reasoned and speaking order after providing adequate and reasonable opportunity of being heard to both the .....

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icer 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 b .....

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oneous in law and on facts in deleting the addition made by the Assessing Officer on account of low yield of sugar at ₹ 10020843/- as the assessee has failed to produce documentary evidences during the course of assessment proceedings. 19. 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 order in assessment year 2007- .....

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me Tax (Appeals), Bareilly is erroneous in law and on facts in deleting the addition made by the Assessing Officer on account of suppressed production and sale of Molasses at ₹ 75,24,770/- as the assessee has failed to produce documentary evidences during the course of assessment proceedings. 22. 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 as per page 3 of the assessment orde .....

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essee 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 t .....

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ared 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 the production declared by the assessee and estimated by the Assessing Officer, no addition is justified. Hence, on this issue also, we do not find any reason to interfere in the order of learned CIT(A). Ground No. 3 is also rejected. 24. Ground No. 4 is as under: 4. That the order of the Commission .....

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sions. We find that the issue was decided by learned CIT(A) on the basis that the TDS deducted has been deposited before filing the return of income and therefore, no addition is justified on account of late deposit of TDS. This finding of CIT(A) could not be controverted by Learned D.R. of the Revenue and on this issue also, we do not find any reason to interfere in the order of CIT(A). This ground is rejected. 27. Ground No. 5 is as under: 5. That the order of the Commissioner of Income Tax (A .....

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