THE MAHARASHTRA STATE CO OP MARKETING FEDERATION LTD,MUMBAI vs. ADDL CIT RG 13(3), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI

BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI SANDEEP SINGH KARHAIL (JUDICIAL MEMBER)

ITA No. 2760/MUM/2017 Assessment Year: 2010-11 The Maharashtra State Co-op. Addl. CIT Range-13(3), Marketing Federation Limited 4th floor, Aayakar Bhavan, Vs. Kanmoor House, Narsi Natha Mumbai-400020. Street, Masjid, Mumbai-400 009 PAN No. AAAAT 6218 L Appellant Respondent ITA No. 2761/MUM/2017 Assessment Year: 2011-12 The Maharashtra State Co-op. Jt. CIT Range-13(3), Marketing Federation Limited 4th floor, Aayakar Bhavan, Vs. Kanmoor House, Narsi Natha Mumbai-400020. Street, Masjid, Mumbai-400 009 PAN No. AAAAT 6218 L Appellant Respondent ITA No. 3368/MUM/2017 Assessment Year: 2012-13 The Maharashtra State Co-op. Asst. CIT-17(3), Marketing Federation Limited Aayakar Bhavan, M.K. Road, Kanmoor House, Narsi Natha Vs. Mumbai-400020. Street, Masjid, Mumbai-400 009 PAN No. AAAAT 6218 L Appellant Respondent

The Maharashtra State Co-op. Marketing The Maharashtra State Co 2 Federation Ltd ITAs 2760, 2761 & 3368 2760, 2761 & 3368/Mum/2017

Assessee by Assessee by : Mr. Jitendra Singh, AR Jitendra Singh, AR : Revenue by Smt. Mahita Nair, CIT Smt. Mahita Nair, CIT-DR Date of Hearing Date of Hearing : 12/01/2023 Date of pronouncement Date of pronouncement : 19/01/2023 ORDER PER OM PRAKASH KANT, AM PER OM PRAKASH KANT, AM

These three appeals by the assessee are directed against three three appeals by the assessee are directed against three three appeals by the assessee are directed against three separate orders, i.e. two orders dated 02/12/2016 for Assessment orders, i.e. two orders dated 02/12/2016 for Assessment orders, i.e. two orders dated 02/12/2016 for Assessment Years 2010-11 & 2011 11 & 2011-12 and third order dated 03/02/2017 for 12 and third order dated 03/02/2017 for A.Y. 2012-13, passed by the Ld.CIT(A) passed by the Ld.CIT(A)-28, Mumbai [in short, the 28, Mumbai [in short, the Ld.CIT(A)]. As identical issues are involved in these three appeals, Ld.CIT(A)]. As identical issues are involved in these three appeals, Ld.CIT(A)]. As identical issues are involved in these three appeals, therefore, same were heard together and disposed of fore, same were heard together and disposed of fore, same were heard together and disposed off by way of this consolidated order for convenience for convenience.

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Government of Maharashtra for its procurement activity. Appellant Government of Maharashtra for its procurement activity. Appellant Government of Maharashtra for its procurement activity. Appellant relies on the decision in case of Arvind Murjani Brands Private Limited relies on the decision in case of Arvind Murjani Brands Private Limited relies on the decision in case of Arvind Murjani Brands Private Limited Vs. Income Tax Officer [21 Taxmann 131 (2012) Mumbai Tribunal], in Vs. Income Tax Officer [21 Taxmann 131 (2012) Mumbai Tribunal], in Vs. Income Tax Officer [21 Taxmann 131 (2012) Mumbai Tribunal], in support of its argument. support of its argument. 2. ADDITION OF MARKET CESS AND SUPERVISION FEES UNDER MARKET CESS AND SUPERVISION FEES UNDER MARKET CESS AND SUPERVISION FEES UNDER SECTION 40(a)(ia): On the facts and in the circumstance of the case, the Learned On the facts and in the circumstance of the case, the Learned On the facts and in the circumstance of the case, the Learned Commissioner of the Income Tax (Appeals) erred in facts and in law in Commissioner of the Income Tax (Appeals) erred in facts and in law in Commissioner of the Income Tax (Appeals) erred in facts and in law in confirming the addition of Rs. 1,21,77,1907- in respect of paymen confirming the addition of Rs. 1,21,77,1907 in respect of payments made towards market cess and supervision fees under section made towards market cess and supervision fees under section made towards market cess and supervision fees under section 40(a)(ia). . Learned Commissioner of the Income Tax (Appeals) has simply Learned Commissioner of the Income Tax (Appeals) has simply Learned Commissioner of the Income Tax (Appeals) has simply followed the order of the first appellate authority in appellants own followed the order of the first appellate authority in appellants own followed the order of the first appellate authority in appellants own case for the earlier year and has ignored the appellants submissions case for the earlier year and has ignored the app ellants submissions that the payments made towards market cess and supervision fees are that the payments made towards market cess and supervision fees are that the payments made towards market cess and supervision fees are not only for and behalf of Government of Maharashtra for its not only for and behalf of Government of Maharashtra for its not only for and behalf of Government of Maharashtra for its procurement activity, but are also in the nature of cess / duty and not procurement activity, but are also in the nature of cess / duty and not procurement activity, but are also in the nature of cess / duty and not a payment for services rendered. Learned Commissioner of the Income a payment for services rendered. Le arned Commissioner of the Income Tax (Appeals) failed to understand that payment is in the nature of Tax (Appeals) failed to understand that payment is in the nature of Tax (Appeals) failed to understand that payment is in the nature of duty / cess paid to APMC's, a regulatory body and payment is not for duty / cess paid to APMC's, a regulatory body and payment is not for duty / cess paid to APMC's, a regulatory body and payment is not for availing any services. Further the Learned Commissioner of the Income any services. Further the Learned Commissioner of the Income any services. Further the Learned Commissioner of the Income Tax (Appeals) has also erred in holding that these payments are s also erred in holding that these payments are s also erred in holding that these payments are covered by provision of section 194H when payment is not made covered by provision of section 194H when payment is not made covered by provision of section 194H when payment is not made towards commission or brokerage. towards commission or brokerage. 3. PRIOR PERIOD EXPENSES: PRIOR PERIOD EXPENSES: On the facts and in the circumstance of the case, the Learned On the facts and in the circumstance of the case, the Learned On the facts and in the circumstance of the case, the Learned Commissioner of the Income Tax (Appeals) erred in facts and in law in Commissioner of the Income Tax (Appeals) erred in facts and in law in confirming the addition of Rs.21,42,072/- in respect of prior period confirming the addition of Rs.21,42,072/ in respect of prior period expenses. The Learned Commissioner of the Income Tax (Appeals) also expenses. The Learned Commissioner of the Income Tax (Appeals) also expenses. The Learned Commissioner of the Income Tax (Appeals) also erred in facts and in law in not considering prior period of income o erred in facts and in law in not considering prior period of income of erred in facts and in law in not considering prior period of income o Rs.3,07,117/-. Appellant relies on the judgement delivered by Delhi High Court in case Appellant relies on the judgement delivered by Delhi High Court in case Appellant relies on the judgement delivered by Delhi High Court in case of Shri Ram Pistons following the judgement in the case of CIT vs. of Shri Ram Pistons following the judgement in the case of CIT vs. of Shri Ram Pistons following the judgement in the case of CIT vs. Nagri Mills Ltd. 330 ITR 681 and also in the case of CIT vs. Vishnu Nagri Mills Ltd. 330 ITR 681 and also in the case of CIT vs. Vishnu Nagri Mills Ltd. 330 ITR 681 and also in the case of CIT vs. Vishnu Industrial Gases that where the Department has not disputed that the Industrial Gases that where the Department has not disputed that the expenditure was deductible but was only disputing the year in which expenditure was deductible but was only disputing the year in which expenditure was deductible but was only disputing the year in which the deduction could be allowed then if the tax rates were the same in the deduction could be allowed then if the tax rates were the same in the deduction could be allowed then if the tax rates were the same in

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the both the years, the Department should not waste its energies in the both the years, the Department should not waste its energies in the both the years, the Department should not waste its energies in raising questions as to the year of deductibility.” ions as to the year of deductibility.” 3. Briefly stated, facts of the case are that the assessee is a State stated, facts of the case are that the assessee is a State stated, facts of the case are that the assessee is a State level Apex Co-operative Society (Federation) registered under the operative Society (Federation) registered under the operative Society (Federation) registered under the Maharashtra Co-operative Societies’ Act, 1960. During the year operative Societies’ Act, 1960. During the year operative Societies’ Act, 1960. During the year under consideration, the assessee was engaged in the business of on, the assessee was engaged in the business of on, the assessee was engaged in the business of marketing of the agricultural commodities procured through its marketing of the agricultural commodities procured through its marketing of the agricultural commodities procured through its Member Co-operative operative Societies Societies throughout through out the the state state of of Maharashtra. The commodities include agricultural produce, Maharashtra. The commodities include agricultural produce, Maharashtra. The commodities include agricultural produce, fertilizers, machinery, etc. F fertilizers, machinery, etc. For the year under consideration, the or the year under consideration, the assessee filed return of income on 30/09/2010 declaring total assessee filed return of income on 30/09/2010 declaring total assessee filed return of income on 30/09/2010 declaring total income of Rs.2,39,83,749/ income of Rs.2,39,83,749/-. The return of income filed by the . The return of income filed by the assessee was selected for scrutiny and statutory notices under the assessee was selected for scrutiny and statutory notices under the assessee was selected for scrutiny and statutory notices under the Income-tax Act, 1961 (in sh tax Act, 1961 (in short ‘the Act’) were issued and complied were issued and complied with. The assessment under section 143(3) of the Act was with. The assessment under section 143(3) of the with. The assessment under section 143(3) of the completed on 26/03/2013, wherein the Assessing Officer made (i) completed on 26/03/2013, wherein the Assessing Officer made completed on 26/03/2013, wherein the Assessing Officer made disallowance under section 40(a)(ia) of the Act for not deducting tax disallowance under section 40(a)(ia) of the Act for not deducting tax disallowance under section 40(a)(ia) of the Act for not deducting tax at sources on market ces at sources on market cess and supervision fee and s and supervision fee and sub-agent commission paid paid to to Member Member Co Co-operative operative Societies, Societies, (ii) disallowance for prior period expenses, etc. On further appeal, the disallowance for prior period expenses, etc. On further appeal, the disallowance for prior period expenses, etc. On further appeal, the Ld. CIT(A) allowed part relief to the assessee. Aggrieved with the CIT(A) allowed part relief to the assessee. Aggrieved with the CIT(A) allowed part relief to the assessee. Aggrieved with the disallowance / addition disallowance / addition sustained by the Ld.CIT(A), the assessee is sustained by the Ld.CIT(A), the assessee is in appeal before the Tribunal by way of raising grounds as in appeal before the Tribunal by way of raising grounds as in appeal before the Tribunal by way of raising grounds as reproduced above.

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Clause 17(f): Details amounts inadmissible under section (40)(a) Clause 17(f): Details amounts inadmissible under section (40)(a) Clause 17(f): Details amounts inadmissible under section (40)(a)

Nature of Expenses Nature of Expenses Amt on which TDS Not Remark Remark Deducted Prof. Fees 2,05,000/- TDS Not Deducted TDS Not Deducted Contract 1,20,110/- TDS Not Deducted TDS Not Deducted TDS Not Deducted Market Market Cess Cess & & 1,20,83,197/- TDS Not Deducted Supervision Supervision Fees Fees (Refer note below) TDS Deducted Sub-agent 1,21,77,190 No TDS Deducted Commission Commission (Refer (Refer Note Below) Note: During the year federation has made provision for payment .of Note: During the year federation has made provision for payment .of Note: During the year federation has made provision for payment .of Market Cess & Supervision fees payable to variou. District Level Co- Market Cess & Supervision fees payable to variou. District Level Co Market Cess & Supervision fees payable to variou. District Level Co op society's for use of market yards, weights & other marketing op society's for use of market yards, weights & other marketing op society's for use of market yards, weights & other marketing facilities for procurement of food grains on behalf of Maharashtra facilities for procurement of food grains on behalf of M facilities for procurement of food grains on behalf of M

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Govt. & NAFED. For this as per Govt of Maharashtra Resolution (GR) Govt. & NAFED. For this as per Govt of Maharashtra Resolution (GR) Govt. & NAFED. For this as per Govt of Maharashtra Resolution (GR) market Cess & Supervision fees @ 1.05% & sub gent commission market Cess & Supervision fees @ 1.05% & sub gent commission market Cess & Supervision fees @ 1.05% & sub gent commission @1% payable to various district level APMC & Co @1% payable to various district level APMC & Co-op societies. op societies. However assessee has submitted that, these procurements are for & However assessee has submitted that, these procurements However assessee has submitted that, these procurements on behalf of Govt; of Maharashtra & NAFED, and market cess & on behalf of Govt; of Maharashtra & NAFED, and market cess & on behalf of Govt; of Maharashtra & NAFED, and market cess & supervision fees & Sub Agent commissions. are reimbursed by the supervision fees & Sub Agent commissions. are reimbursed by the supervision fees & Sub Agent commissions. are reimbursed by the respective Governments and paid to various APMC & district level respective Governments and paid to various APMC & district level respective Governments and paid to various APMC & district level co-op society's for procurement of food grains for & be op society's for procurement of food grains for & be op society's for procurement of food grains for & behalf of Government, Also, as per Section 10(26AAB of Income Tax Act, said Government, Also, as per Section 10(26AAB of Income Tax Act, said Government, Also, as per Section 10(26AAB of Income Tax Act, said income is exempt in the hands of various APMC & district Co-op income is exempt in the hands of various APMC & district Co income is exempt in the hands of various APMC & district Co Society. In view of these, provisions of section 40(a) are not Society. In view of these, provisions of section 40(a) are not Society. In view of these, provisions of section 40(a) are not attracted. The sum of Rs.1,20,83,197/ attracted. The sum of Rs.1,20,83,197/- includes, some Di includes, some District Level Co-op society's to whom payment .will not exceeds Rs.50,000/ op society's to whom payment .will not exceeds Rs.50,000/ op society's to whom payment .will not exceeds Rs.50,000/- for the whole previous year 2009 the whole previous year 2009-10. 6.1 The Assessing Officer noted that the assessee added back the The Assessing Officer noted that the assessee added back the The Assessing Officer noted that the assessee added back the amount of professional fee and contract expenses on which tax was amount of professional fee and contract expenses on which tax was amount of professional fee and contract expenses on which tax was not deducted. However, the amount in respect of However, the amount in respect of ‘market cess market cess’ and ‘supervision fees’ and and ‘sub agent commission’ on which tax was not on which tax was not deducted at source, were not added back to the computation of deducted at source, were not added back to the computation of deducted at source, were not added back to the computation of income on the ground that assessee has made th income on the ground that assessee has made those payments se payments on behalf of the Government of Maharashtra for assisting various he Government of Maharashtra for assisting various he Government of Maharashtra for assisting various marketing co-operative societies in procuring food operative societies in procuring food operative societies in procuring food-grains from various parties. The Ld. various parties. The Ld. AO, however, rejected the contention of the AO, however, rejected the contention of the assessee and observed that it is the assessee, who was responsible assessee and observed that it is the assessee, who was responsible assessee and observed that it is the assessee, who was responsible for making such payments to the aking such payments to the Member Co-operative Societies operative Societies and claiming the expenses in its P&L Account claiming the expenses in its P&L Account. In In respect of sub agent commission, it was held agent commission, it was held by the Ld. AO that being in the that being in the nature of commission the assessee was required to deduct tax at nature of commission the assessee was required to deduct tax at nature of commission the assessee was required to deduct tax at source under section 194H of the Act. In respect of market cess source under section 194H of the Act. In respect of market cess source under section 194H of the Act. In respect of market cess

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and supervision fees, according to the Assessing Officer, same were and supervision fees, according to the Assessing Officer, same were and supervision fees, according to the Assessing Officer, same were in the nature of payment made for the wor in the nature of payment made for the work done by the payee and, k done by the payee and, therefore, tax was to be deducted at source. The Ld. CIT(A), therefore, tax was to be deducted at source. The Ld. therefore, tax was to be deducted at source. The Ld. following the finding of his predecessor , sustained the disallowance following the finding of his predecessor , sustained the disallowance following the finding of his predecessor , sustained the disallowance in respect of sub agent commission and market cess and in respect of sub agent commission and market cess and in respect of sub agent commission and market cess and supervision fee paid.

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“Provided that where in respect of any such sum, tax has been that where in respect of any such sum, tax has been that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted during deducted in any subsequent year, or has been deducted during deducted in any subsequent year, or has been deducted during the previous year but pai the previous year but paid after the due date specified in sub d after the due date specified in sub- section (1) of section (1) of section 139, thirty per cent of such sum shall be section 139, thirty per cent of such sum shall be allowed as a deduction in computing the income of the previous allowed as a deduction in computing the income of the previous allowed as a deduction in computing the income of the previous year in which such tax has been paid : year in which such tax has been paid :

Provided further Provided further that where an assessee fails to d that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of whole or any part of the tax in accordance with the provisions of whole or any part of the tax in accordance with the provisions of Chapter XVII Chapter XVII-B on any such sum but is not deemed to be an B on any such sum but is not deemed to be an assessee in default under the first proviso to sub assessee in default under the first proviso to sub assessee in default under the first proviso to sub-section (1) of section 201, then, for the purpose of this sub section 201, then, for the purpose of this sub- -clause, it shall be deemed that the assessee has deducted and paid the tax on be deemed that the assessee has deducted and paid the tax on be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by such sum on the date of furnishing of return of income by such sum on the date of furnishing of return of income by payee referred to in the said proviso.” the 38[resident] 38[resident] payee referred to in the said proviso.

9.1 The said Proviso further refers to Proviso below section 201(1) The said Proviso further refers to Proviso below section 201(1) The said Proviso further refers to Proviso below section 201(1) which is also reproduced below for read reference: h is also reproduced below for read reference:-

“201. (1) Where any person, including the principal officer of a (1) Where any person, including the principal officer of a (1) Where any person, including the principal officer of a company,—

(a)& (b) xxxxxxxxxxxxxxxxxxxxx (a)& (b) xxxxxxxxxxxxxxxxxxxxx

Provided that any person, including the principal officer of a that any person, including the principal officer of a that any person, including the principal officer of a company, who fails to deduct the whole company, who fails to deduct the whole or any part of the tax in or any part of the tax in accordance with the provisions of this Chapter on the sum paid accordance with the provisions of this Chapter on the sum paid accordance with the provisions of this Chapter on the sum paid to a payee or on the sum credited to the account of a payee shall to a payee or on the sum credited to the account of a payee shall to a payee or on the sum credited to the account of a payee shall not be deemed to be an assessee in default in respect of such not be deemed to be an assessee in default in respect of such not be deemed to be an assessee in default in respect of such tax if such payee tax if such payee—

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(i) has furnished (i) has furnished his return of income under section 139 section 139;

(ii) has taken into account such sum for computing income in (ii) has taken into account such sum for computing income in (ii) has taken into account such sum for computing income in such return of income; and such return of income; and

(iii) has paid the tax due on the in (iii) has paid the tax due on the income declared by him in such come declared by him in such return of income, return of income,

and the person furnishes a certificate to this effect from an and the person furnishes a certificate to this effect from an and the person furnishes a certificate to this effect from an accountant in such form as may be prescribed” accountant in such form as may be prescribed”

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applicable from 01/04/2005 and no disallowance for want of TDS applicable from 01/04/2005 and no disallowance for want of TDS applicable from 01/04/2005 and no disallowance for want of TDS can be made if the payee has paid tax thereon, an can be made if the payee has paid tax thereon, and d opportunity to file form 26A be given be given. Similarly, in the case of Santosh Kumar Santosh Kumar Kedia vs ITO (supra), the Trib Kedia vs ITO (supra), the Tribunal has held that Second Proviso to unal has held that Second Proviso to section 40(a)(ia) is curative and retrospective and legitimate section 40(a)(ia) is curative and retrospective and legitimate section 40(a)(ia) is curative and retrospective and legitimate business expenses cannot be disallowed if the payee has paid taxes business expenses cannot be disallowed if the payee has paid taxes business expenses cannot be disallowed if the payee has paid taxes thereon.

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PARTICULARS PARTICULARS DEBIT CREDIT NET BAL RUPEES RUPEES RUPEES VCFF FACTORIES VCFF FACTORIES 40963 202369.10 161406.10 RICE MILL D’PHATA RICE MILL D’PHATA 271470 0 271470 WASHI 24466.61 0 24466.61 GODOWN 1118767 0 1118767 RDS 232499.64 0 232499.64 FOODGRAIN 163490.59 183.52 163307.07 JOWAR / PADDY JOWAR / PADDY 0 14237.05 14237.87 FERTILISER 16457 89607.87 73150.87 BHAGIRATH 0 6 6 MACHINERY 0 713 -713 HEAD OFFICE 273958 0 273958 TOTAL 2142071,84 307116.63 1834955.21 We find that authorities below have not examined the exact 13.1 We find that authorities below have not examined the exact We find that authorities below have not examined the exact nature of the expenses and, nature of the expenses and, crystallization of those expenses of those expenses in the year under consideration. If those expenses though pertained to year under consideration. If those expenses though pertained to year under consideration. If those expenses though pertained to earlier years; however, have crystallized in the year under earlier years; however, have crystallized in the year under earlier years; however, have crystallized in the year under consideration, then same are liable to be allowed in the year under consideration, then same are liable to be allowed in the year under consideration, then same are liable to be allowed in the year under consideration. Since t consideration. Since this issue has not been examined by the lower his issue has not been examined by the lower authorities, we deem it appropriate to restore this issue back to the authorities, we deem it appropriate to restore this issue back to the authorities, we deem it appropriate to restore this issue back to the Ld. CIT(A) for deciding afresh. CIT(A) for deciding afresh.

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Order pronounced Order pronounced in the open Court/under Rule 34(4) of under Rule 34(4) of the ITAT Rules, 1963 on the ITAT Rules, 1963 on 19/01/2023. Sd/- Sd/ Sd/- (SANDEEP SINGH KARHAIL SANDEEP SINGH KARHAIL) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 19/01/2023 Pavanan, Sr. P.S (on contract) Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, BY ORDER, //True Copy// (Sr. Private Secretary) (Sr. Private Secretary) ITAT, Mumbai ITAT, Mumbai