DCIT, CIRCLE-2(2), SURAT vs. SHREE SAYAN VIBHAG SAHAKARI KHAND UDHYOG MANDLI LTD, SURAT

Assessee by Shri Mitish S.Modi, C.A Revenue by Shri H.P. Meena, – CIT-DR Date of hearing 14.12.2021 Date of pronouncement 23.12.2021 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This set of three appeals out of which one appeal by assessee in for assessment year 2013-14 and two cross-appeals for assessment year 2012-13, are directed against the common order of ld. Commissioner of Income tax (Appeals)-1, Surat dated 31.12.2019, which in turn arise out of separate assessment orders passed by the Assessing Officer (‘AO' for short) under section 143(3) of the Income Tax Act, ITA Nos. 74, 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. 1961 (hereinafter referred to as ‘the Act’) dated 12.03.2015 &26.02.2016 respectively. In all appeals, the parties have raised certain common grounds of appeal s on account of disallowance on account of portion of cane price paid in excess of Fair Rate Price (‘FRP’ in short).

2. For appreciation of fact, the facts in appeals for AY 2012-13 are treated as ‘lead’ case. The assessee in its appeal in ITA No.74/SRT/2020 has raised the following grounds of appeal:-

1 On the facts and circumstances of the case as well in law, the order of the 56,46,60,100/- C.I.T.(Appeals)upholding the Assessing Officer’s action making disallowance of Rs.125,45,90,017/- 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. 2 On the facts and in the circumstances of the case as well in law, both the lower As per Sr. No. 1 above authorities have grievously erred in holding that the portion of the cane price 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. disallowable u/s 37(1) of the Act to the extent of Rs.125,45,90,017/- 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. 3 On the facts and in the circumstances of the case as well in law, both the lower As per Sr.No. 1 above authorities have overlooked to see and appreciate that while computing profits of appellant society, the price to be allowed as a deduction for sugarcane supplied by farmers is the price fixed by its Board of Directors giving reasons for payment of competitive price, being approved/certified by the State Government authorities and hence, the action of the C.I.T.(Appeals) confirming the inferences of the AO to restrict the claim of sugarcane purchase price to the notified Statutory Minimum Price called FRP, which is a support price, is without jurisdiction, perverse, arbitrary, subjective, conjectural, illegal, invalid, bad in law and therefore, liable to be quashed. 4 On the facts and circumstances of the case as well in law, the order of the As per Sr. No. 1 above. 3 ITA Nos. 74, 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. C.I.T.(Appeals) ought to have held that the (main raw material) price of cane purchased by the appellant co.operative society from its members and other farmers (unregistered/nominal members) at the competitive price, was contractually fixed as permitted by Section 9 of the Sale of Goods Act, 1930 and hence, the AO's disallowance of portion of the cane price confirmed by the C.I.T.(Appeals) ignoring the fact of payment of cane price made for the year out of commercial expediency, being without jurisdiction, arbitrary or based on irrelevant or extraneous consideration, unfair, subjective, irrational, bad in law, invalid, void Authorities Below initio and therefore, liable to be struck down. 5 On the facts and circumstances of the case as well in law, both the lower authorities As per Sr.No.1 above have erred in ignoring the fact that comparable cane prices paid by the other co- operative sugar societies in other States are in commensurate with the cane price fixed with the approval of the State Government for the year under appeal, were allowed as business expenditure u/s 37(1) of the Act in their assessments and therefore, the action of the tax authorities to deny the final/approved cane price in excess of FRP as the actual business expenditure incurred 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. to meet the commercial expediency by the appellant co.operative society, being without jurisdiction, in pure contravention to the “Rule of Consistency”, arbitrary, prejudicial, subjective, perverse, bad in law and hence, liable to be struck down. 6 On the facts and circumstances of the case as well in law, the order of the As per Sr. No. 1 above. C.I.T.(Appeals) failed to appreciate that the total cane price including the above amount of Rs.125,45,90,017/- was allowable both under section 28 and section 37 and the disallowance thereof results into Department taxing unreal and wrong amount of income. 7 On the facts and in the circumstances of the case as well in law, the C.I.T.(Appeals) failed As per Sr. No. 1 above. 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. 8 On the facts and in the circumstances of the case as well in law, both the lower As per Sr. No. 1 above. 5 , 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. authorities have erred in overlooking and summarily rejecting the detailed various submissions made during the course of assessment/appeal proceedings including the Statutory Audit reports of the Govt. Auditors, the Statement of Accounts, audited Balance Sheet and Manufacturing reports, other relevant materials submitted to the State Government for approval of the final cane price, other State’s approve cane price, opportunity cost/cost of cultivation to the farmers per supplying sugarcane to the appellant co.operative society as well as strong agitations by farmers demanding higher prices much more than FRP and hence, the order passed by the C.I.T.(Appeals) confirming the action of the AO making disallowance to the extent of Rs.125,45,90,017/- arbitrarily, capriciously and based on lopsided, imaginary and factually incorrect inferences, deserves to be annulled or nullified. Total tax effect 56,46,60,100/-

(i) Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing the AO to recomputed the FRP on certain formula without considering the fact that the FRP taken 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. by the AO was as per the order dated 22.10.2013 of the Ministry of Consumer Affairs, Department of Food and Public Distribution, and despite the fact that the issue has been confirmed by Ld. CIT(A) on merits on the basis of findings of the AO. (ii) Whether on the facts and in the circumstances of the case and in Law, The Ld. CIT(A), Surat ought to have upheld the order of the Assessing Officer in respect of the issues raised in Ground No.(i) above. It is, therefore, prayed that the order of the Ld. CIT(A)-1, Surat maybe set-aside and that of the Assessing Officer’s order may be restored.

raised by assessee as well as revenue is covered in favour of assessee by the decision of Tribunal in case of Shree Khedut Sahakarai Khand Udyog Mandli Ltd. Vs. income Tax Officer, Ward-1, Bardoli for assessment year 2012-13 in ITA No.1206/AHD/2017 reported by (2019) 108 taxmann.com 258 (Surat-Trib.). The Ld. AR of the assessee submits that the facts in present appeals are identical except variation of figure of addition / disallowances on account of alleged excess payment of cane price. The Ld. AR of the assessee submits that identical grounds of appeals have already been restored to the file of Assessing Officer in various similar appeal by the 7 ITA Nos. 74, 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. Tribunal with the direction to consider the decision of Hon'ble Supreme Court in the case of CIT vs. Tasgaon Taluka S.S.K. Ltd., (2019) 103 taxmann.com 57/262 Taxman 176/412 ITR 420 (SC). The Ld. AR of the assessee submits that the matter maybe restored to the file of Assessing Officer with the direction to follow suit the decision Shree Khedut Sahakarai Khand Udyog Mandli Ltd. Vs. income Tax Officer(supra).The Ld. AR of the assessee also furnish the copy of decision of co- ordinate Bench of this Tribunal.

5. On the other hand, Ld. CIT-Departmental Representative (DR) for the Revenue submits that he supports the order of Assessing Officer and considering the decision of Hon'ble Supreme Court in CIT vs. Tasgaon Taluka S.S.K. Ltd.(supra) the matter may be restored to the file of Assessing Officer to pass the order afresh in accordance with law.

6. We have considered the rival contentions of both the parties and perused the materials available on record. We find that the assessing officer while passing the assessment order made addition of Rs. 125.45 Crore on account of excess payment for sugar cane over and above SMP/FRP. On appeal the Ld. CIT(A) 8 , 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. directed the assessing officer to recompute the FRP on certain formula as per the order dated 22.12.2013 of Ministry of Consumer affair, Department of Food and Public Administration. Further aggrieved both the parties have filed their respective appeal by raising the grounds of appeal as noted above. The Ld. AR for the assessee claimed that the grounds of appeals raised by the assessee as well as by revenue are covered by the series of decisions of Tribunal and strongly relied on the decision in Khedut Sahakarai Khand Udyog Mandli Ltd. (supra).

7. We have also gone through the facts in case of Shree Khedut Sahakarai Khand Udyog Mandli Ltd. (supra) and the grounds of appeals raised by the parties in the cases in hand. On perusal of facts of the present case, we find that assessee has raised almost similar grounds of appeals as raised in Shree Khedut Sahakarai Khand Udyog Mandli Ltd. Vs income Tax Officer (supra). We find that in Shree Khedut Sahakarai Khand Udyog Mandli Ltd. Vs. income Tax Officer (supra), our predecessor passed the following order:- , 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. 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 the Essential Commodities Act, 1955 and the Government issued Sugar Cane (Control) Order, 1966, which deals with all aspects of production of sugarcane and sales thereof including the price to be paid to the cane growers. Clause 3 of the Sugar Cane (Control) Order, 1966authorizes the Government to fix minimum sugarcane price. In addition, the additional sugarcane price is also payable as per clause 5A of the Control Order,1966. The AO in that case concluded that the difference between the price paid as per clause 3 of the Control Order, 1966 determined by the Central Government and the price determined by the State Government under clause 5A of the Control Order,1966, was in the nature of `distribution of profits’ and hence not deductible as expenditure. He, therefore, made an addition for such sum paid to members as well as non members. When the matter finally came up before the Hon’ble Apex Court, it noted that clause 5A was inserted in the year 1974 on the basis of the recommendations made by the Bhargava Commission, which recommended payment of additional price at the end of the season on 50:50 profit sharing basis between the growers and factories, to be worked out in accordance with the Second Schedule to the 10 , 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. Control Order, 1966. Their Lordships noted that at the time when additional purchase price is determined/fixed under clause 5A, the accounts are settled and the particulars are provided by the concerned Co-operative Society as to what will be the expenditure and what will be the profit etc. Considering the fact that Statutory Minimum Price (SMP), determined under clause 3 of the Control Order, 1966, which is paid at the beginning of the season, is deductible in the entirety and the difference between SMP determined under clause 3 and SAP/additional purchase price determined under clause 5A, has an element of distribution of profit which cannot be allowed as deduction, the Hon’ble Supreme Court remitted the matter to the file of the AO for considering the modalities and manner in which SAP/additional purchase price/final price is decided. The Hon`ble Supreme Court has been directed to carry out an exercise of considering 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 and thereafter determine as to what 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 11 69 & 75/SRT/2020 (A.Y. 12-13 & 13-14) Shree Sayan Vibhag Sahakari Khand Udyog Mandli Ltd. 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 question would remain with respect to the distribution of profit/sharing of the profit. So far as the non-members are concerned, the same can be dealt with and/or considered applying Section 40A(2) of the Act, i.e., the assessing officer on the material on record has to determine whether the amount paid is excessive or unreasonable or not.

9.5 Therefore, the assessing officer will have to take into account the manner in which the business works, the modalities and manner in which SAP/additional purchase price/final price are decided and to determine what amount would form part of the profit and after undertaking such an exercise whatever is the profit component is to be considered as sharing of profit/distribution of profit and the rest of the amount is to be considered as deductible as expenditure.”