SURAT DISTRICT CO.OP.MILK PRODUCERS UNION LTD.,,SURAT vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE -3(2),, SURAT

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No. 680/SRT/2018 (AY 2014-15) (Hearing in Virtual Court) The Surat District Co-Op. Dy. Commissioner of Milk Producer’s Union Ltd., Income Tax, Circle-3(2), Vs Sumul Dairy Road, Station Aaykar Bhavan, Majura Road, Surat Gate, Surat PAN : AAAAS 3450 M Assessee / appellant Revenue /respondent

Assessee by ShriAkshay M. Modi, C.A Revenue by Ms. Anupama Singla – Sr-DR Date of hearing 22.09.2021 Date of pronouncement 23.09.2021 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of ld. Commissioner of Income tax (Appeals)-3, Surat dated 23.08.2018for assessment year (AY) 2014-15. The assessee has raised the following grounds of appeal:- “(1) On the facts and in the circumstances of the case and in law, the learned CIT(Appeals), Surat erred in confirming the order of DCIT, Circle 3(2), Surat (for the sake of brevity “the AO") making disallowance of Rs.7,48,492/- u/s 40(a)(ia) of the Act, treating the cost of purchase of milk and quality maintenance charges paid to the members society as the rent income u/s 194-I of the Act and hence, not justified. (2) On the facts and in the circumstances of the case and in law, the learned CIT(Appeals)ought to have appreciated that the claim of expenditure ofRs.7,48,492/- is being towards the purchase cost of milk on purchase of milk from members society and not for the alleged quality maintenance charges, but

ITA No.680/SRT/2018 (A.Y 14-15) The Surat Dist. Co-Op Milk Producers’ Union Ltd. the transaction in question falls within the ambit of “Sale of Goods Act” and not falls within the meaning and expressions “Rent” as defined u/s 194-I of the Act and therefore, the action of the AO to invoke the provisions of Section 40(a)(ia) of the Act is without jurisdiction, improper, invalid, perverse, illegal, void ab initio and hence, liable to be struck down. (3) Your appellant further reserves its right to add, alter, modify9 or to amend any of the aforesaid grounds before or at the time of hearing of an appeal. It is therefore, respectfully submitted that taking into account various submissions written as well as oral made in the course of assessment and appeal proceedings, the whole assessment order be annulled and/or the addition of Rs.7,48,492/- made by the AO, and as confirmed by the CIT(Appeals), be deleted treating the same as business expenditure towards the purchase of the goods (i.e. milk) especially in view of the appellant’s letters/submissions addressed to the AO, which form part of statement of facts alongwith various submissions to be filed before Hon'ble ITAT, Surat and the appeal of the appellant be allowed in full as prayed for.” 2. Brief facts of the case are that assessee is a co-operative society engaged in the business of procurement, processing and marketing of milk, milk products, cattle feed, etc. The assessee filed its return of income declaring total income of Rs.2.14 crores. In the computation of income, the assessee claimed deduction under section 80P of Rs.3.27 crores. The case was selected for scrutiny. During the assessment, the Assessing Officer on the basis of information gathered from the office of Income Tax Officer Ward-2 Bardoli that the assessee has paid rent of Rs.7,48,492/- to Shri Bandharpada Dudh Utpadak Sahakari Mandli Ltd. On account of bulk chilling unit (for the sake of brevity “BCU”) has not deducted tax while making payment. Shri

ITA No.680/SRT/2018 (A.Y 14-15) The Surat Dist. Co-Op Milk Producers’ Union Ltd. Bandharpada Dudh Utpadak Sahakari Mandli Ltd. has shown the said amount as rent in its return of income. Therefore, the Assessing Officer issued show cause notice as to why the said rent expenses of Rs.7,48,492/- should not be disallowed by the provision of section 40(a)(ia) of the Act and added income of assessee. The assessee filed its reply dated 21.10.2016. In reply, the assessee has explained that Shri Bandharpada Dudh Utpadak Sahakari Mandli Ltd. is working from Songarh which is a tribal area of District Tapi, Gujarat. The amount was paid to them on account of three parts and is connected with BCU and there is no payment at all on rent. The amount was paid to Shri Bandharpada Dudh Utpadak Sahakari Mandli Ltd. for maintaining the quality of milk and it’s hygienic. The assessee is procuring milk from the said Shri Bandharpada Dudh Utpadak Sahakari Mandli Ltd. in pattern of AMUL. The amount was paid on account of purchase of milk and not on account of payment of rent. The explanation furnished by assessee was not accepted by Assessing Officer by taking view that the said Shri Bandharpada Dudh Utpadak Sahakari Mandli Ltd. has shown rent in its books of account received from assessee and they have claimed deduction under section 80P(2)(e) of the Act. The Assessing Officer accordingly disallowed the amount by invoking the provision of section 40(a)(ia).

ITA No.680/SRT/2018 (A.Y 14-15) The Surat Dist. Co-Op Milk Producers’ Union Ltd. 3. Aggrieved by the addition, the assessee carried the matter before Ld. CIT(A). Before Ld. CIT(A) the assessee filed detailed written submission. The detailed written submission are recorded by him in para-7 of his order. The assessee in its submission reiterated the explanation furnished before the Assessing Officer. The assessee in alternative application submitted as per first proviso of section 201(1) inserted with effect from 01.07.2012 by Finance Act, 2012, wherein it is provided in case the payer failed to deduct the whole or any part of tax in accordance with the provision of Chapter- XVII-B of the Act on the sum paid to a resident or on the sum credited to the account of a resident (payee) shall not be deemed to be an assessee in default in respect of such tax, if such resident has furnished his return of income under section 139 of the Act, has taken into account such sum for computing income of such return of income and has paid the tax due on the income declared by him and the person furnishes a certificate to this effect from an accountant in such form as may be prescribed. The assessee further explained has furnished the certificate of Chartered accountant in Form-26A (under Rule 31ACB) that the recipient and the has included the receipt in their income and paid tax thereon. Thus the assessee cannot be saddled with the liability by invoking provisions of section 40(a)(ia) of the Act. It is conclusive proof that recipient of impugned payment has taken into of the

ITA No.680/SRT/2018 (A.Y 14-15) The Surat Dist. Co-Op Milk Producers’ Union Ltd. receipt of payment for computing its income and hence, there is no lawful reason to invoke the provision of section 40(a)(ia) of the Act for failure to deduct the tax at source under section 194-I of the Act. To support his submission, the assessee relied on the decision of Koley Construction vs. ITO (2017) 86 taxmann.com 73 (Kol) and RBL Bank Ltd. vs. ITSO (TDS) (2016) 65 Taxmann.com 219 (Panaji). 4. The Ld. CIT(A) considered both the submissions i.e. the primary and alternative submission of the assessee. On primary submission, the Ld. CIT(A) held that payment as prima facie are evident made for use of equipment and chilling units and hence comes within the scope of section 194-I of the Act. Since no TDS is made by the assessee, the disallowance under section 40(a)(ia) of the Act and the Assessing Officer rightly made the disallowance. 5. On the alternative submission the Ld. CIT(A) held that alternatively cannot be considered as the appellant has to make claim before Assessing Officer by filing relevant document and certificate of chartered accountant. The Assessing Officer can decide on this plea after examining and cross verifying the same. And the alternative submission was dismissed. However, the Ld. CIT(A) noted that assessee is free to make suitable application under section 154 of the Act with prescribed document before Assessing Officer and it

ITA No.680/SRT/2018 (A.Y 14-15) The Surat Dist. Co-Op Milk Producers’ Union Ltd. would dispose of the same as per law. Aggrieved by the order of Ld. CIT(A) the assessee has filed present appeal before this Tribunal. 6. We have heard the submission of both the Ld. Authorized Representative (AR) for the assessee and the Ld. Senior Departmental Representative (DR) for the Revenue. The Ld. AR of the assessee submits that assessee has not paid any amount on account of rent or there is no written contract or written agreement between the assessee and the Shri Bandharpada Dudh Utpadak Sahakari Mandli Ltd. (Dudh Utpadak Sahakari Mandli), about the payment of the alleged rent. The Ld. AR for the assessee submits that assessee has made payment for procuring milk from the Songarh which is tribal area of District Tapi, Gujarat. The amount was paid to Dudh Utpadak Sahakari Mandlion account of three parts and is connected with BCU and there is no payment at all on rent. The Assessing Officer failed to appreciate the fact that there is neither any payment of rent nor any obligation of the assessee to deduct tax to the said payment was made only against procurement of goods (milk) and milk / product. 7. The Ld. AR for the assessee submits that before Ld. CIT(A) assessee raised alternative plea that as per proviso of section 201(1), in case the payee has included the income receipt in their income and has paid tax, the assessee cannot be saddled with the liability the assessee has furnished the certificate

ITA No.680/SRT/2018 (A.Y 14-15) The Surat Dist. Co-Op Milk Producers’ Union Ltd. of chartered accountant of that Dudh Utpadak Sahakari Mandli that they have included the said receipt in their income and has paid tax on such income. Therefore, the assessee cannot be treated as assessee in default for invoking provision of section 40(a)(ia) of the Act. The Ld. AR for the assessee also invited our attention on page 63,which is part of the financial statement of the assessee, wherein the impugned payment has shown on account of payment of milk. 8. In alternative submission, Ld. AR of the assessee submits that alternative contention of assessee was rejected by Ld. CIT(A) by taking view that no such plea was raised before the Assessing Officer and that the assessee may raise such plea before Assessing Officer. The Ld. AR of the assessee submits that assessee has furnished the certificate of chartered accountant and relevant document of certifying the payee has included the impugned receipt in their gross total income and therefore no additions were sustainable against the assessee. The Ld. AR for the assessee submits that the assessee is entitled to succeed on primary as well as on alternative submissions. 9. On the other hand, Ld. Senior DR for the Revenue has supported the order of lower authorities. 10. We have considered the rival submission of both the parties and have gone through the order of lower authorities. We find that the Assessing Officer

ITA No.680/SRT/2018 (A.Y 14-15) The Surat Dist. Co-Op Milk Producers’ Union Ltd. made disallowance of Rs.7,48,492/- by taking view that the ITO Ward-2 Bardoli informed that the assessee has paid rent to Dudh Utpadak Sahakari Mandli, on which no tax deducted at source as recorded above. Before Ld. CIT(A) assessee reiterated the same submission as made before the Assessing Officer, which we have recorded in para-2 (supra). We further find that before Ld. CIT(A) assessee raised alternative plea that payee has included the impugned receive in their income and has furnished certificate of chartered accountant that impugned receipt is included in the total receipt of the Dudh Utpadak Sahakari Mandli and they have paid tax on it. However, Ld. CIT(A) rejected primary as well as alternative submission. We find that on primary submission the Ld. CIT(A) held that said payment is made for the use of BCU and prima facie made for use of equipment of BCU and held that disallowance under section 40(a)(ia). 11. We have noted that the Assessing Officer has not clarified in para -2 of the assessment order whether the information shared to him by ITO Ward-2 Bardoli or was a result or was a result of his investigation. We note that the contention of assessee throughout the proceedings that amount of Rs.7,48,492/- is paid on account of cost of raw material and there is no contract or agreement between the assessee and the Dudh Utpadak Sahakari Mandli.

ITA No.680/SRT/2018 (A.Y 14-15) The Surat Dist. Co-Op Milk Producers’ Union Ltd. 12. We find that the alternative plea of the assessee was rejected by Ld. CIT(A) at threshold limit without examining the fact. The Ld. CIT(A) noted that assessee has not made any claim before the Assessing Officer by filing relevant documents. It is settled law that no fresh relief can be raised before the Assessing Officer except by filing revised return of income as has been held by Hon'ble Supreme Court in Goetze India Limited Vs CIT (2006) 284 ITR 323-SC. However, these restrictions are not applicable on appellate authority as held by Hon'ble Bombay High Court in case of CIT Vs Pruthvi Broker Shareholder Limited 349 ITR 336 (Bom). Further, the scope of application under section 154 is limited for rectification of mistake in the order which is apparent. In our view the Ld. CIT(A) was not justified in rejecting the alternative claim of the assessee. Considering the fact that appellate authority are entitled to examine and admit the additional ground of appeal. Therefore the additional / alternative plea made by assessee is admitted by way of additional ground. 13. On merit of the additional / alternative claim, we find that assessee has field certificate of chartered accountant certifying that the recipient of the impugned receipt has included the said receipt in their gross income and had paid tax thereon. Therefore, prima facie we are of the opinion that no disallowance in such circumstances is warranted against the assessee,

ITA No.680/SRT/2018 (A.Y 14-15) The Surat Dist. Co-Op Milk Producers’ Union Ltd. however, we direct the Assessing Officer to verify the fact that if the recipient has included the impugned receive in their gross total income and paid tax then no disallowance be made against the assessee. Considering the fact that assessee has succeeded in alternative plea, therefore adjudication of primary plea have been academic in nature. 14. In the result, the appeal of the assessee is allowed. Order pronounced on 23/09/2021by placing the result on the notice board. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 23/09/2021 Dkp. Out Sourcing Sr.P.S Copy to: 1. Appellant-Shri Harish K. Jodhweani, 10, Shreeji Park, Chhapra Rd. Navsari 2. Respondent- ITO, Wd-2, Aaykar Bhavan, Navsari 3. CIT(A)-Valsad 4. CIT 5. DR 6. Guard File True copy/ By order //True Copy// Assistant Registrar, ITAT, Surat