The Commissioner Of Income Tax ... vs Jai Jawan Jai Kisan Sahakari ...
2017 Latest Caselaw 9994 Bom

                                                                 F.A. No.1442/2017
                                           1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                           TAX APPEAL NO.32 OF 2008



 The Commissioner of Income Tax
 Aayakar Bhavan, Near Holy Cross
 School, Cantonment, Aurangabad.                    ...     APPELLANT

          VERSUS

 Jai Jawan Jai Kisan Sahakari Sakhar
 Karkhana Ltd., At/p Nalegaon,
 Tq. Chakur, District Latur                         ...     RESPONDENT

                              .....
 Shri Alok Sharma, Standing Counsel for appellant
                              .....

                                 CORAM:        PRASANNA B. VARALE AND
                                               SUNIL K. KOTWAL, JJ.

DATED : 21st DECEMBER, 2017.

ORAL JUDGMENT (PER PRASANNA B. VARALE, J.):

1. This appeal is filed by the Revenue, in challenge to

the order passed by the Income Tax Appellate Tribunal. The

Department was assailing the order passed by the Commissioner

of Income Tax (Appeals), dated 30.9.2004, pertaining to the

assessment year 1999-2000. The Tribunal could not find any

favour with the Department. Resultantly, the appeal was

dismissed. Present appeal was admitted by this Court by order

dated 5.7.2011, on the following questions of law namely :-

(1) Whether the payments made by a cooperative society

F.A. No.1442/2017

(Co-operative sugar factory) to it's members or non- members towards purchase price of sugar cane supplied, in excess of the price as fixed by the Commissioner of Sugar (Registrar of Co-operative Societies representing the State) i.e. State advised price, is liable to be disallowed under Section 40A(2) of the Income Tax Act, 1961 and computed as taxable income of the assessee ?

(2) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the payments made by the Co-operative Society were not excessive and unreasonable within the meaning of Sec. 40A(2) and 37(1) of the I.T. Act, 1961 ?

2. Though the respondent is duly served, none appears

for the respondent. As the appeal is ripe for hearing, the same

was posted for final hearing in the cause list. As none appears

for the respondent, we are of the view that the respondent is not

interested in contesting the appeal. Mr. Alok Sharma, learned

Standing Counsel for the appellant submitted that, the

substantial questions of law involved in this appeal were identical

substantial questions of law involved in Tax Appeal No.55/2009.

The Division Bench of this Court, by order dated 3.2.2014,

decided the appeal. In the order of the Division Bench, dated

3.2.2014, the judgment of the Hon'ble Apex Court in SLP (C)

No.8590 of 2010 [C.I.T., Bombay V/s Krishna Sahakari

Sakhar Karkhana Ltd.) is referred to. Mr. Sharma submitted

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that, there are certain other appeals decided by this Court in

view of the Apex Court judgment. Mr. Sharma submitted that,

the matters are remitted back to the Commissioner of Income

Tax (Appeals), Aurangabad for decision afresh on merits. Perusal

of the order dated 3.2.2014, passed by the Division Bench shows

that, in view of the judgment of the Apex Court as well as in view

of the fact that the orders impugned in the appeals are cryptic in

nature, the Division Bench of this Court thought it fit to remit the

matter to the Commissioner of Income Tax, so as to assess the

matter afresh on its own merits.

3. We see no reason to take any different view than the

view adopted by Division Bench of this Court. Resultantly, the

Appeal is allowed. The matter is remitted back to the

Commissioner of Income Tax (Appeals), Aurangabad for decision

afresh on merits and in accordance with law. We hope and trust

that the authority concerned namely Commissioner of Income

Tax (Appeals), Aurangabad will decide the matter afresh as

expeditiously as possible, needless to state, by giving opportunity

of hearing to both the parties.

          ( SUNIL K. KOTWAL )            ( PRASANNA B. VARALE )
               JUDGE                           JUDGE


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