Thecommissioner Of Income Tax vs Vithal Sahakari Sakhar Karkana ...
2017 Latest Caselaw 9995 Bom

                                                            Tax Appeal No.83/2008
                                           1

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


                           TAX APPEAL NO.83 OF 2008


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

          VERSUS

 Shri Vithal Sahakari Sakhar Karkhana
 Ltd., At/p Murum, Tq. Omerga,
 District Osmanabad                                 ...     RESPONDENT

                                .....
 Shri Alok Sharma, Standing Counsel for appellant
 Shri G.D. Jain, Advocate holding for
 Shri D.L. Khivesara, Advocate for respondent
                                .....

                                 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 9.2.2007, pertaining to the

assessment year 2003-2004. 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 2.2.2011, on the following questions of law namely :-

Tax Appeal No.83/2008

(1) Whether the differential payment made by the assessee(s) to the cane growers after the close of the financial year or after the balance-sheet date would constitute an expenditure under Section 37 of the Income Tax Act, 1961; and whether such differential payment would, applying the real income theory, constitute an expenditure or distribution of profits.

(2) Whether in the facts and circumstances of the case, the Tribunal was justified in deleting the addition made by the Assessing Officer in respect of the contribution made by the assessee for Vasant Dada Sugar Institute in the face of the fact that actual contribution/ donation to the said institute is not made and only provision for making such contribution/ donation was made on paper?

(3) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in deleting the addition made on account of sugar sale to members at concessional rate ?

2. 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

Tax Appeal No.83/2008

referred to. Mr. Sharma submitted 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

 fmp/-