SHREENATH MHASKOBA SSK LTD,PUNE vs. ACIT, PUNE
What did the Tribunal hold?
The Tribunal held that the issue is covered by the Supreme Court judgment in CIT Vs. Tasgaon Taluka S.S.K. Ltd. The matter was remitted to the AO to determine the deductible expenditure and profit distribution component of the excess sugarcane price, considering Section 40A(2) for non-members.
What were the facts?
The assessee, a co-operative sugar factory, paid excessive sugarcane price over the government-fixed Fair and Remunerative Price (FRP) to its members and non-members. The Assessing Officer added this excess amount to the assessee's income, treating it as a non-deductible bonus.
What were the issues?
Whether the excessive sugarcane price paid over the FRP is a deductible business expenditure or an appropriation of profit. How to treat payments to non-members.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(2)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- CIT v. Tasgaon Taluka S.S.K. Ltd.306 citing103 Taxmann.com 57 · 2019 · SC · Read judgment
- CIT v. Dalmia Cement (P.) Ltd.35 citing121 Taxmann 706 · 2002 · HC
Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI R.S. SYAL & SHRI VIKAS AWASTHY
आदेश / ORDER PER R.S.SYAL, VP :
This appeal by the assessee arises out of the order passed by the CIT(A)-III, Pune dated 14-02-2012 in relation to the assessment year 2007-08.
The only issue involved in this appeal is on account of the addition made by the Assessing Officer (AO) towards excessive
2 ITA No.1505/PUN/2012 Shreenath Mhaskoba Sakhar Karkhana Ltd.,
sugarcane price paid to members as well as non-members of the
assessee.
Briefly stated, the facts of the case are that the assessee is
a Co-operative Society engaged in the business of
manufacturing and sale of sugar. During the course of
assessment proceedings, the AO observed that the assessee paid
excessive cane price, over and above the Fair and remunerative
price (FRP) fixed by the Government, to its members as well as
non-members. On being called upon to justify such deduction,
the assessee gave certain explanation by submitting that such
payment was solely and exclusively in connection with the
business and the entire amount was deductible u/s.37(1) of the
Income-tax Act, 1961 (hereinafter also called `the Act’). The
AO opined that the excessive price paid was in the nature of
bonus to the cane growers, who are not the employees of the
assessee and the provisions of the Bonus Act were not attracted.
This is how, he computed the excessive cane price paid at
Rs.2,54,70,720/- and made addition for the said sum. The ld.
CIT(A) gave part relief to the assessee on this point. The
assessee is aggrieved by the confirmation of the part addition.
3 ITA No.1505/PUN/2012 Shreenath Mhaskoba Sakhar Karkhana Ltd.,
We have heard both the sides and gone through the
relevant material on record. We find 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 recorded the factual matrix that the assessee in that
case purchased and crushed sugarcane and paid price for the
purchase during crushing season, 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, 1966 authorizes 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
4 ITA No.1505/PUN/2012 Shreenath Mhaskoba Sakhar Karkhana Ltd.,
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 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
5 ITA No.1505/PUN/2012 Shreenath Mhaskoba Sakhar Karkhana Ltd.,
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. He 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 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
6 ITA No.1505/PUN/2012 Shreenath Mhaskoba Sakhar Karkhana Ltd.,
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.”
The ld. AR unsuccessfully tried to distinguish his case from
that of recent judgment of Hon’ble Supreme Court in CIT Vs.
Tasgaon Taluka S.S.K. Ltd. (2019) 103 taxmann.com 57 (SC).
He relied on the judgment in the case of CIT Vs. Dalmia
Cements Pvt. Ltd. (2002) 121 taxmann 706 (Delhi) in which
payment of commission at higher rate was held to be deductible
u/s.37(1) of the Act. In our considered opinion, this case does
not assist the assessee in any manner. As the issue raised
before us is fully and directly covered by the judgment in the
case of Tasgaon Taluka S.S.K. Ltd. (supra), following which
hundreds of orders have been passed by the Pune Benches of
the Tribunal, we are disinclined to deviate from the consistent
view taken by the Pune Tribunal in following the judgment in
7 ITA No.1505/PUN/2012 Shreenath Mhaskoba Sakhar Karkhana Ltd.,
the case of Tasgaon Taluka S.S.K. Ltd. (supra). Respectfully
following the precedent, we set-aside the impugned order on
this score and remit the matter to the file of the A.O for
deciding it afresh as per law in consonance with the articulation
of law by the Hon’ble Supreme Court in the aforenoted
judgment.
At this stage, it is made clear that in so far as the non-
members are concerned, the case will be considered afresh by
the AO by applying the provisions of section 40A(2) of the Act,
as has been held by the Hon’ble Supreme Court supra.
Needless to say, the assessee will be allowed a reasonable
opportunity of hearing by the AO in such fresh determination of
the issue.
In the result, the appeal is allowed for statistical purposes.
Order pronounced in the Open Court on 08th May, 2019.
Sd/- Sd/- (VIKAS AWASTHY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; �दनांक Dated : 08th May, 2019. सतीश
8 ITA No.1505/PUN/2012 Shreenath Mhaskoba Sakhar Karkhana Ltd.,
आदेश क� क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to: अ�ेिषत आदेश आदेश आदेश 1. अपीलाथ� / The Appellant; 2. ��यथ� / The Respondent; 3. आयकर आयु�(अपील) / The CIT (Appeals)-III, Pune 4. The CCIT-II, Pune िवभागीय �ितिनिध, आयकर अपीलीय 5. अिधकरण, पुणे “ए” / DR ‘A’, ITAT, Pune; 6. गाड� फाईल / Guard file. // True copy //
आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार
// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
Date 1. Draft dictated on 07-05-2019 Sr.PS 2. Draft placed before author 07-05-2019 Sr.PS 3. Draft proposed & placed JM before the second member 4. Draft discussed/approved JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *
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