GUJARAT COOPERATIVE MILK MARKETING FEDERATION LTD. vs. INCOME TAX OFFICER, TDS
What did the High Court hold?
The High Court held that the ITAT was correct in its findings. The Court referred to its own prior decision in ITR No.65 of 1997, which dealt with identical substantial questions of law for the same assessee. In that decision, the Court had observed that Section 67(2) of the Cooperative Societies Act allows the reserve fund to be used in the business of the society. Therefore, there is no diversion of income by overriding title, nor is there an outgoing of funds from the assessee's domain. The profits set apart are available for the society's use in its business. Consequently, these profits cannot be kept out of the purview of taxation. The Tribunal was thus right in holding that the amount transferred to the reserve fund was not a diversion of income by overriding title and could not be treated as a business expenditure deductible under Section 28 or 37 of the Act. The substantial questions of law were answered in favour of the revenue and against the assessee. The judgments and orders of the ITAT were confirmed.
What were the facts?
The Gujarat Co-operative Milk Marketing Federation Limited (the assessee) filed several appeals before the High Court of Gujarat against orders of the Income Tax Appellate Tribunal (ITAT). The appeals concerned various assessment years and raised common questions of law and fact. The dispute revolved around the tax treatment of amounts transferred to a reserve fund account as per Section 67 of the Gujarat State Cooperative Societies Act, 1957. The assessee contended that this transfer was not taxable income, while the Revenue argued it was. The High Court noted that these issues had been previously decided by a Division Bench of the same court in earlier cases involving the same assessee and identical questions of law.
What were the issues?
1. Whether, in the facts and circumstances, the ITAT was correct in holding that the amount transferred to a reserve fund account under Section 67 of the Gujarat State Cooperative Societies Act, 1957, was not a diversion of income at source by overriding title? (Question of law) 2. Whether, in the facts and circumstances, the ITAT was correct in holding that the transfer to the reserve fund cannot be treated as business expenditure and allowed as a deduction under Sections 28/37 of the Income Tax Act, 1961? (Question of law) Assessee's Contentions: The assessee argued that the transfer to the reserve fund was a diversion of income by overriding title and should not be taxed. They also contended that it should be treated as business expenditure deductible under Sections 28/37 of the Income Tax Act, 1961. Revenue's Contentions: The revenue contended that the transfer to the reserve fund was not a diversion of income and was not a deductible business expenditure. The judgment does not explicitly record the revenue's arguments beyond what is implied by the issues and the court's decision.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH)
As common questions of law and facts arise in all this group of appeals, but with respect to different assessment years and with respect to common assessee, - Gujarat Cooperative Milk Marketing Federation Limited, all these appeals are decided and disposed of by this common order. In all these appeals, following substantial questions of law arise. “i) Whether, in the facts and under the circumstances of the case, the ITAT was right in holding that the amount transferred to reserve fund account as per provisions of Sec. 67 of the Gujarat State Cooperative Societies Act, 1957 was not a diversion of income at source by overriding title? (ii) Whether in the facts and under the circumstances of the case, the ITAT was right in holding that transfer to reserve fund cannot be treated as business expenditure and allowed deduction u/s 28/37 of the Income Tax Act, 1961?”
Today, when all these appeals are taken up for final O/TAXAP/657/2007 JUDGMENT hearing, it is reported that the issues/questions of law raised in the present appeals are squarely decided and covered against the appellant – assessee in view of the order passed by the Division Bench of this Court in ITR No.65 of 1997 as well as Tax Appeal No.72 of 2004 with Tax Appeal No.211 of 2004 (with respect to earlier assessment orders). Identical substantial questions of law in the case of very assessee came to be considered, dealt with and answered by this Court in ITR No.65 of 1997. In para 8 and 9 of the above decision, the Division Bench has observed and held as under:
“8. Having heard the learned advocates it is the society at a later point of time. Once the O/TAXAP/657/2007 JUDGMENT society is in a position to use the funds lying in the reserve fund for the business of the society as and when the society so chooses, there can be no question of keeping out such profits from the purview of taxation.
Accordingly, the Tribunal was right in law in holding that the amount transferred to the reserve fund account as per provisions of Section 67 of the Gujarat Cooperative Societies Act, 1961 was not diversion of income at source by overriding title nor can such transfer be treated as a business expenditure deductible either under Section 28 or Section 37 of the Act. Accordingly, both the questions at the instance of the assessee are answered in the affirmative i.e. in favour of the Revenue and against the assessee.”
It is required to be noted that even other tax appeals being Tax Appeal No.74 of 2004 with Tax Appeal No. 211 of 2004 raising the similar questions of law in the case of the very assessee or with respect to different assessment years are dismissed and the substantial questions of law are answered against the assessee considering the decision of the Division Bench of this Court in ITR No.65 of 1997. 4. We have gone through and considered the decision of the Division Bench of this Court in ITR No.65 of 1997 dated 10.3.2008 and for the reasons stated in the said decision, we answer the aforesaid substantial questions of law raised in the present tax appeals against the assessee and in favour of the revenue and we confirm the respective judgments and orders passed by the learned Tribunal impugned in the present tax appeals. Consequently, all these appeals are dismissed. (M.R.SHAH, J.) O/TAXAP/657/2007 JUDGMENT (S.H.VORA, J.) shekhar
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