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Income Tax Appellate Tribunal, “A” BENCH,
Before: SHRI PARTHA SARATHI CHAUDHURY, JM & DR. DIPAK P. RIPOTE, AM
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This is an appeal filed by the Assessee directed against the order of ld.Commissioner of Income Tax(Appeals)-2, Kolhapur dated 16.05.2017for the Assessment Year 2012-13. The Assessee raised the following grounds of appeal:
1. Ld. CIT(A) ought to have followed the judge ment of ITAT, Mumbai dated 16/5/1968 in Pravara SSK in upheld by Hon’ble Supreme Court, 94 ITR 321, which was accepted by IT Dept, for over 3 decades, and as held by Supreme Court in Radhasoami Satsang, 193 ITR 321, it would not be appropriate to allow the position to be changed in a subsequent year, as re- confirmed by Hon’ble Supreme Court in Municipal Corp. of Thane v. Vidyut Metalics (2007) 8 SCC 688.
2. Ld. CIT(A) ought to have held that it is Government’s policy to encourage co-operatives, and appellant’s business which is run on co- operative principles and policy and has its aims and objects that are ITA No.1867/PUN/2017 for A.Y. 2012-13 Rajarambapu Patil SSK Ltd (A) materially different from that of a private businessman, who may not find his conscience pinched in exploiting farmers by bearing them down to uneconomic prices.
3. Ld. CIT(A) ought to have held that the price of cane purchased by appellant from its members and other farmers was contractually fixed as permitted by section 9 of the Sale of Goods Act and the said purchase price was deductible in computing the co-operative society’s profits and gains from its business.
4. Ld. CIT(A) ought to have held that while computing profits of appellant society, the price to be allowed as a deduction for sugarcane supplied by farmers is the price fixed on co-operative principles as is required to be paid as per its bye laws and the same cannot be restricted to the notified statutory minimum price called Fair and Remunerative Price (FRP) which is a support price.
5. Ld. CIT(A) has not dealt with AO’s implicit assumption that sugarcane can be purchased by the appellant for its three adjacent sugar factories at three different FRPs which is absurd it ignores ground realities and Ld. CIT(A) erred in holding that payment of the same cane price, to its members and to non-members, in excess of the notified FRP was a distribution of the assessee society’s profits.
6. The AO erred in disallowing: i) For season 2010-11 out cane purchases at a uniform price of Rs 2290/Mt - a) For Sakharale on Cane Crush of 1,15,340 Mt disallowance of Rs 504.60/Mt = Rs 5,82,00,564 b) For Wategaon on Cane Crush of 34,301 Mt disallowance of Rs 475.40/Mt = Rs 1,63,06,695 c) For Karandwadi on Cane Crush of 7,296 Mt disallowance of Rs 486.80/Mt = Rs 35,51,692 ii) For season 2011-12 out cane purchases at a uniform price of Rs 2490/Mt - a) For Sakharale on Cane Crush of 8,11,843 Mt disallowance of Rs 688.10/Mt = Rs 55,86,29,168 b) For Wategaon on Cane Crush of 5,21,118 Mt disallowance of Rs 642.20/Mt = Rs 33,46,61,979 c) For Karandwadi on Cane Crush of 3,97,536 Mt disallowance of Rs 640.20/Mt = Rs 24,45,02,547 aggregating to Rs 122,58,52,647 and the reasons given by the Ld. CIT(A) for confirming above disallowances are wrong and incorrect.
A.Y. 2012-13 Rajarambapu Patil SSK Ltd (A)
Ld. CIT(A) erred in interpreting the judgement of Hon’ble Supreme Court in 1995 Suppl 3 SCC 475 wherein it was held that what was paid by co-operative sugar factories in Maharashtra to farmers was “price” for their cane and the Court had upheld the cane price fixation orders of the Commissioner of Sugar.
8. Ld. CIT(A) erred in ignoring the fact that comparable cane prices paid by private sector sugar mills were allowed as deductions in their assessments but cane price in excess of FRP was disallowed in the hands of co-operative sugar factories.
Ld. CIT(A) erred in ignoring the opportunity cost to the farmers for supplying sugarcane to appellant as well as agitations by farmers demanding higher prices which were much more than FRP.
Ld. CIT(A) erred in holding that judgement of Karnataka High Court in Nagarbail Salt Owners Co-op Society (2016) taxmann.com 149 would apply to facts of the appellant when they were distinguishable.
Ld. CIT(A) erred in holding that the concession in price given to members for sugar sold to them was “income” in the hands of the appellant.
Brief facts of the case as mentioned in the assessment order that the assessee is a co-operative society, registered under the Maharashtra Co-Operative Societies Act, 1950 and engaged in manufacture and sale of sugar and its by-products. It has three manufacturing units at Sakhrale, Wategaon and Karandwadi. Sakhrale unit has a sugar factory and a distillery. Wategaon unit has a sugar factory and Cogen Plant. Karnandwadi unit is a stand-alone sugar factory. In the accounting year 2011-125, relevant to A.Y. 2012-13, it has purchased sugarcane for the manufacture of sugar, from its members and also from non- members.
A.Y. 2012-13 Rajarambapu Patil SSK Ltd (A)
The Assessing Officer(AO) called for details for the price made by assessee to the farmers for the purchase of sugarcane. The AO has observed that assessee purchased sugarcane from member farmers as well as non-member farmers.The AO observed that the assessee has paid excessive price than the Fare and Remunerative Price(FRP)for the purchase of sugarcane declared by the Central Government, under Sugarcane (control) Order 1966. The AO concluded that the excess price paid by the assessee for purchase of sugarcane is nothing but distribution of profits shown in the guise of additional cane price. Therefore, the AO held that the difference between actual price paid for purchase of sugarcane and FRP is not allowable expenditure under section 37(1) of the Act. Accordingly, the AO disallowed Rs.122,58,52,647/-.
3.1 The AO also observed that assessee has sold 7278 quintals of sugar to its members at a concessional rate of Rs.102.15 per quintal, as against the average rate of Rs.2577.13 per quintal at which sugar was sold in the market. Therefore, the AO disallowed the difference between Fair Market Price and Concessional Price, and added to the total income. The said disallowance is Rs.1,80,12,904/-. Aggrieved by the additions, assessee filed an appeal before the ld.CIT(A)-2, Kolhapur.
A.Y. 2012-13 Rajarambapu Patil SSK Ltd (A)
3.2 The ld.CIT(A) decided the issue regarding sugarcane price in para 6.9 of the order. The relevant part is reproduced here as under: “I hold that the payments over and above FRP are therefore not eligible for a deduction as they represent the profits from sale of sugar. The AO had made an addition of Rs.122,58,52,547. While doing so, the AOhas taken the quantity of cane crushedat Karandwadi Unit at 4,03,710.405 MT which includes cane crushed atKarandwadi Unit of 7296.416 MT for season 2010-11 & 297536.189MT forseason 2011-12. From the details filed before me, I find thatout of the total cane crushed at Karandwadi unit, 430.92 MT for season 2010-11 & 691.28 MTfor season 2011-12 is not cane but actually sugar beet. The appellant has paid Rs 1500 per MT for this sugar beet for both seasons. The AO has applied the differential of FRP to this sugar beet also. To my mind this is not correct as the concept of FRP applies only to cane and not sugar beet. The disallowance made by the AO therefore needs to bereworked by excluding the quantity of sugar beet crushed at Karandwadi. After such exclusion, the total cane crushed at Karandwadi is 6865.496 MT @ Rs 2290 and 296844.909 MT @ Rs 2490. The FRP for Karandwadi were Rs 1756.2 for season 2010-11 & Rs 1847.8 for season 2011- 12. The payment of excess over FRPis Rs 533.8for season 2010-11 (Rs 2290 - Rs 1756.2 FRP) and for season. 2011-12is Rs 642.2 (Rs 2490 - Rs 1847.8 FRP). When multiplied with the canecrushed of 6865.496 MT and 296844.909 MT (after excluding the quantity of sugar beet), the disallowance for Karandwadi Unit works out to Rs 36,64,801 for season 2010-11 & Rs 19 06,33,800 for season 2011-12. The total disallowance made by the AO for Karanwadi is Rs 25,80,54,239 which is to berestricted to 19,42,98,601 thus giving a partial relief to the appellant of Rs.6,37,55,638. The addition of Rs 122,58,52,647 for AY 2012-13, is restricted to Rs.116,20,97,009. Grounds 1.1 to 1.8 and 1.10 are therefore partlyallowed.”
3.3 The ld.CIT(A) decided the issue related to the concessional rate at which sugar has been sold to members in para 7 of the order. The ld.CIT(A) considered the Sugar Commissioner’s Report dated A.Y. 2012-13 Rajarambapu Patil SSK Ltd (A)
01.03.2006. The ld.CIT(A) held that the difference between the Concessional Price at which sugar was sold to the members and the market price in principle reason to be taxed as the income of the appellant as the same has been diverted by the appellant to its members. The ld.CIT(A) further held that however, the State Government Guidelines dated 01.03.2006 also need to be factored in while deciding the maximum concession allowable to the members on sale on sugar to them. Finally, the ld.CIT(A) held as under: “a) The AO will determine the quantity of sugar sold at concessional rate to members and restrict it to a maximum of 5 kgs per month per member/employee. b) The sale price of this concessional sale is to be held at the levy price of Rs.1893.66 for AY 2012-13.”
Aggrieved by the order of ld.CIT(A), the assessee filed appeal before this Tribunal.
The ld.Authorised Representative(AR) filed written submission which is reproduced here as under: 3 Appellant has 3 sugar mills which are located as follows: At Sakhrale which is on outskirts of Islampur At Wategaon which is 17 Kms to the West of Sakhrale At Karandwadi which is 27 Kms to South East of Sakhrale During FY 2011-12 appellant procured 24.57% sugarcane from its member farmers whereas 75.43% sugarcane was procured from non-member farmers. Market dynamics comes into operation for procuring cane from non-member farmers who supply theirsugarcane to that sugar mill which pays them competitive cane price and which procures their sugarcane as early in the season as possible. Appellant’s sugar mills are surrounded by other sugar mills which compete in procuring sugarcane. They are:
A.Y. 2012-13 Rajarambapu Patil SSK Ltd (A) a) YMKrishna SSK at RethareBudruk, 17 Kms North of Sakhrale b) Hutatma Ahir SSK at Walwa, 12 Kms to the East of Sakhrale c) Kranti SSK at Kundal, 21 Kms to the North East of Sakhrale To procure 14.23 lakh Mt of sugarcane from non-members in the teeth of fierce competition, appellant was required to try and match the cane prices perceived by non-member cane growers that will be paid by these competing sugar mills.
The appellant transports sugarcane of one farmer to one or more of its 3 sugar mills, depending upon the requirement of cane at each of its mill and the necessity to avoid cane from becoming stale as cut cane is perishable. Appellant pays the same advance/price for cane which is crushed at any of its 3 mills. Each sugar mill has a different FRP. The Ld. AO has allowed different FRPs for different mills. For season 2011-12 a farmer's cane which is crushed at Sakhrale was allowed Rs 1802/Mt, same farmer’s cane which is crushed at Wategaon was allowed Rs 1848/Mt and that crushed at Karandwadi was allowed Rs 1850/Mt. Appellant has centralized cane procurement and it is absurd to pay the same farmer different cane prices merely because his cane is crushed at different mills. This issue is taken in ground Nos. 5 and 6 before ITAT. These facts were not before the Hon’ble Supreme Court in CIT v. Tasgaon TSSK, 412 ITR 420. So also this was ground No. 1.3 before CIT(a) but has remained to be dealt with by the CIT(A).
7 Hon’ble Supreme Court in CIT v. Tasgaon TSSK, 412 ITR 420, referred to its judgment in 1995 Suppl. 3 SCC 475. It is submitted that their Lordships ought to have considered – a) Para 1 of the said judgment, viz. These are two sets of appeals filed by various SahakariSakkarKarkhanas, that is, Co-operative Societies of Sugarcane Growers, Private Undertakings, Joint Stock Companies producing sugar in the State of Maharashtra and the State itself one, directed against direction by a Full Bench of the Bombay High Court in Satara SahakariSakharKarkhana Ltd. & Am. v. State ofMaharashtra &Ors., AIR 1989 Bombay 53 that the cane A.Y. 2012-13 Rajarambapu Patil SSK Ltd (A) growers who were not members of any Co-operative Society but who were required to supply their cane under reservation order or Control Orders to sugar factories with which they were attached were entitled to market price instead of price fixed by the Government, and other directed against fixation of market price for 1993-94 by the High Court at Rs. 740/- as against Rs.340/- to Rs.400/- fixed by the Government, (emphasis ours) b) Para 38 of the said judgement – Although the price fixation has not been found to suffer from any infirmity yet due to passage of tune, nearly eight or nine years, since this price fixation was challenged and with rise of price all around it appears expedient to dispose of these appeals with following directions to ensure smooth functioning both for the past and future: i) The directions of the Fidl Bench in paragraph 25 of the Judgment shall stand set aside. ii) The State Government may take appropriate steps to amend Clause (5) of the Zoning Order so as to protect the cane growers. iii) The Government may appoint a Committee of Experts to study and examine the price structure in the light of what has been stated earlier. iv) Even though the order issued by the State Government determining price for each factory is upheld but since in consequence of the order passed by the High Court an interim order was granted by this Court and the factories were directed to pay Rs.600/- to the cane growers and they were directed to furnish bank guarantee for Rs.145/- it is directed that the amount paid by the factories shall not be liable to recovery from the cane growers. But the bank guarantee furnished by the appellants or sugar factories shall stand discharged, (emphasis ours) v) It is made dear that the direction not to recover Rs. 600/- from non- growers would not entitle any member of the cooperative society or the cooperative society itself to claim that it was entitled to be paid Rs.600/- for its cane during the years in dispute.
It is submitted that when SMPs were in the range of Rs 340/Mt to Rs 400/Mt the Hon’ble Supreme Court itself allowed payment of Rs A.Y. 2012-13 Rajarambapu Patil SSK Ltd (A)
745/Mt. Therefore, in our humble submission, as pointed out in 11th Edition of Kanga &Palkhiwala at page 1117 the judgement in the case of CIT v. Tasgaon TSSK requires reconsideration.
After the Tasgaon judgement was delivered, a Bench of 5 judges of the Hon’ble Supreme Court in West UP Sugar Mills Association v. State of UP in Civil Appeal 7508 of 2005 delivered their judgement on 22/4/2020 wherein it was held - Therefore, our final conclusions are as under: a. By virtue of Entnes 33 and 34 List III of seventh Schedule, both the Central Government as well as the State Government have the power to fix the price of sugarcane. The Central Government having exercised the power and fixed the minimum price, the State Government cannot fix the minimum price of sugarcane. However, at the same time, it is always open for the State Government to fix the advised price which is always higher than the minimum price, in view of the relevant provisions of the Sugarcane (Control) Order, 1966, which has been issued in exercise of powersunder Section 16 of the U.P. Sugarcane (Regulation of Sup-ply and Purchase) Act, 1953; (emphasis ours) b. The Sugarcane (Control) Order, 1966 which has been issued under Section 16 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 confers power upon the State Government to fix the remunerative/advised price at which sugarcane can be bought or sold which shall always be higher than the minimum price fixed by the Central Government; (emphasis ours) c. Section 16 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 is not repugnant to Section 3(2)(c) of the Essential Commodities Act, 1955 and Clause 3 of the Sugarcane (Control) Order, 1966 as, as observed hereinabove, the price -which is fixed by the Central Government is the minimum price and the price which is fixed by the State Government is the advised price which is always higher than the minimum price fixed by the Central Government and therefore, there is no conflict. It is only in a case where the advised price fixed by the State Government is lower than A.Y. 2012-13 Rajarambapu Patil SSK Ltd (A) the minimum price fixed by the Central Government, the provisions of the Central enactments will prevail and the minimum price fixed by the Central Government would prevail. So long as the advised price fixed by the State Government is higher than the minimum price fixed by the Central Government, the same cannot be said to be void under Article 254 of the Constitution of India, (emphasis ours) d. The view taken by the Constitution Bench of this Court in the case ofU.P. Cooperative Cane Unions Federations vs. West U.P. Sugar Mills Association and Others is the correct law.
The judgement of 5 judges Bench as understood by us, prevails over their judgement of 3 judges in Tasgaon. With great respect to their Lordships, it is submitted that the cane price fixed by the State ,of Maharashtra therefore comes within the purview of the their latest judgement of 5 judges Bench and therefore it prevails over Tasgaon. The cane price of appellant for seasons 2010-11 and 2011-12 was approved by the State Government and copies thereof are on records of the Ld. AO. It is submitted that said judgement of the Constitutional Bench be followed.