Appellant/S v. Ashok Sahakari Sakhar Karkhanaltd., At Post, Ashoknagartal. Shrirampur, Dist. Ahmednagar

{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD TAX APPEAL NO.40 OF 2009 The Commissioner of Income Tax-I,Aayakar Bhavan, PMT Bldg, B Wing,Shankar Seth Road, Swargate, Pune,411 037. Appellant/s Versus Ashok Sahakari Sakhar KarkhanaLtd., At Post, AshoknagarTal. Shrirampur, Dist. Ahmednagar. Respondent/s Mr.Alok M. Sharma,ASGI for the Appellant. CORAM : S.C. DHARMADHIKARI & RAVINDRA V. GHUGE, JJ. DATE : 28TH JANUARY, 2014. ORAL ORDER:- 1]Since the appeal has been pending from 2009 and notice issued by this court has been duly served on the respondent, but, still nobody has appeared on behalf of the respondent, we are taking up the appeal for final hearing and dispose of the same, by this order. 2]After hearing the learned counsel and perusing with his assistance, the orders passed by the {2} Appellate Tribunal, Pune, Bench, and the earlier orders, we are of the opinion, that the substantial questions of law, which arise for determination and scrutiny in this appeal are as under :- [a]“Whether the assessee contravened theprovisions of Sec. 40A(2) by selling sugar at a concessional rate to its members, which amounted to the distribution of income ?provisions of Sec. 40A(2) by selling sugar at a concessional rate to its members, which amounted to the distribution of income ? [b] Whether on the facts and in thecircumstances of the case and in law, the Tribunal was justified in deleting the disallowance of Rs.16,37,846/- made by the assessing officer u/s. 40A(2) of the I.T. Act, 1961 on account of sale of sugar at concessional rate to its members by the assessee cooperative society ? 3]Similar substantial question of law was dealt with and considered by us, in Tax Appeal No. 56 of 2011, and we have, by relying upon the judgment of the Honourable Apex Court, dated 25th September, 2012, passed in Special Leave to Appeal ( Civil ) No. 85902010 and connected matters, allowed the appeals and remanded the case to the Commissioner of Income Tax (Appeals) for de-novo consideration of the above substantial questions of law.Similar order can be passed in this appeal as well. {3} [a]The appeal is allowed. [b]The order passed by the Income Tax Appellate Tribunal, so also, by the Commissioner of Income-Tax (Appeals), is set aside. [c]The matter is remanded to the Commissioner of Income-Tax (Appeals) for de-novo consideration. [d]The Commissioner of Income Tax (Appeals) shall decide the same on merits and in accordance with law, uninfluenced by any prior findings and conclusions. [e]In the circumstances, there shall be no orders as to costs. [RAVINDRA V. GHUGE] JUDGE [S.C. DHARMADHIKARI] JUDGE. grt/-