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TMI Blog2022 (1) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. The assessee has raised the following grounds of appeal:- "1 On the facts and circumstances of the case as well in law, the order of the C.I.T.(Appeals)upholding the Assessing Officer's action making disallowance of Rs. 160,03,41,255/- from total cane price paid to the sugarcane growers/farmers for the supply of sugarcane, without appreciating the past assessment/appeal "records" of the appellant co.op. society and purely on misleading, misconceptual, arbitrary and perverse observations and hence, being without jurisdiction, bad in law, in-valid, illegal, unwarranted of facts, is liable to be quashed. 67,21,64,850/- 2 On the facts and in the circumstances of the case as well in law, both the lower authorities have grievously erred in holding that the portion of the cane price disallowable u/s 37(1) of the Act to the extent of Rs. 160,03,41,255/- being the excess over FRP is inflated price amounting to diversion of profit, without appreciating the authentic, credible and cogent evidences/materials furnished demonstrating the fact of fixation of final/actual cane price with the approval of the State Government and hence, not justified. As per Sr. No. 1 above 3 On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Sr.No.1 above 6 On the facts and circumstances of the case as well in law, the order of the C.I.T.(Appeals) failed to appreciate that the total cane price including the above amount of Rs. 160,03,41,255/- was allowable both under section 28 and section 37 and the disallowance thereof results into Department taxing unreal and wrong amount of income. As per Sr. No. 1 above. 7 On the facts and in the circumstances of the case as well in law, the C.I.T.(Appeals) failed to appreciate that on identical facts, in the past in all the assessment years, such price was allowed by various Assessing Officers or the Appellate Authorities, and therefore. There was no justification on the part of the Assessing Officer to decide to the contrary, and thus, offend the law laid down by the Supreme Court in CIT Vs. Excel Industries Ltd. - (2013) 358 ITR 295 holding that Revenue must be consistent and not flip-flop on the same issue in different assessment years. As per Sr. No. 1 above. 8 On the facts and in the circumstances of the case as well in law, both the lower authorities have erred in overlooking and summarily rejecting the detailed various submissions made during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts in assessee's own case for assessment year 2012-13 (supra) and the grounds of appeals and facts of in assessment years 2011-12& 2013-14. On perusal of facts, we find that assessee has raised almost similar grounds of appeals as raised in assessment year 2012-13. We find that in assessee's appeal for assessment year 2012-13, our predecessor passed the following order (supra), which is reproduced below:- 8.We have heard both the sides and gone through the relevant material on record. It is an agreed position between the rival parties that the issue of payment of excessive price on purchase of sugarcane by the assesses is no more res integra in view of the recent judgment of Hon'ble Supreme Court in CIT Vs. Tasgaon Taluka S.S.K. Ltd. [2019] 103 taxmann.com 57 (SC). The Hon'ble Apex Court, vide its judgment dated 05-03- 2019, has elaborately dealt with this issue. It has recorded the factual matrix that the assessee in that case purchased and crushed sugarcane and paid price for the purchase during crushing seasons, firstly, at the time of purchase of sugarcane and then, later, as per the Mantri Committee advice. It further noted that the production of sugar is covered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t amount would form part of the distribution of profit and the other as deductible expenditure. The relevant findings of the Hon'ble Apex Court are reproduced as under:- "9.4. ..... Therefore, to the extent of the component of profit which will be a part of the final determination of SAP and/or the final price/additional purchase price fixed under Clause 5A would certainly be and/or said to be an appropriation of profit. However, at the same time, the entire/whole amount of difference between the SMP and the SAP per se cannot be said to be an appropriation of profit. As observed hereinabove, only that part/component of profit, while determining the final price worked out/SAP/additional purchase price would be and/or can be said to be an appropriation of profit and for that an exercise is to be done by the assessing officer by calling upon the assessee to produce the statement of accounts, balance sheet and the material supplied to the State Government for the purpose of deciding/fixing the final price/additional purchase price/SAP under Clause 5A of the Control Order, 1966. Merely because the higher price is paid to both, members and non-members, qua the members, still the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g by the AO in such fresh determination of the issue. It is further made clear that the assessee will be at liberty to raise any other argument concerning the issue before the AO." 5. Considering the fact that both the parties have agreed that issue raised in the present appeals are covered by the decision of co-ordinate Bench of this Tribunal for assessment year 2012-13 (supra), wherein the matter was restored to the file of Assessing Officer to decide the issue afresh by following the decision of Hon'ble Supreme Court in the case of Tasgaon Taluka S.S.K.Ltd., (supra). Therefore, we restore the grounds of appeal raised by the assessee to the file of Assessing Officer to decide the issue afresh as per the direction of our predecessor in assessee's own case (supra) for assessment year 2012-13. Needless to say that before passing the order afresh, the Assessing Officer shall grant fair and reasonable opportunities of hearing to the assessee. In the result, appeal of assessee is allowed for statistical purposes in above terms. ITA No.59/SRT/2020 A.Y. 2013-14 6. As noted above, the assessee has raised appeal in identical grounds of appeal except variation of figure which we have res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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