THE MALEGAON SAHAKARI SAKHAR KARKHANA LTD,,PUNE vs. INCOME-TAX OFFICER, HQ-(6) (1),, PUNE

PER R.S.SYAL, VP :

This appeal by the assessee is directed against the order passed

by the CIT(A)-7, Pune on 17-10-2017 in relation to the assessment

year 2013-14.

of disallowance of Rs.89,71,55,742/- on account of excess can price

paid to sugarcane suppliers.

Cooperative society engaged in the business of manufacturing and

sale of sugar. The assessee filed its return of income declaring

income at Nil. During the course of assessment proceedings, the

2 ITA No.68/PUN/2018 The Malegaon SSK Ltd. 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’). Relying on the judgment of Hon’ble

Supreme Court in the case of DCIT Vs. Shri Satpuda Tapi Parisar

S.S.K. Ltd. and others (2010) 326 ITR 402, the AO opined that the

excessive price paid was not deductible. This is how, he computed

the excessive cane price paid both to the members and non-

members at Rs.89,71,55,742/- and made addition for the said sum.

The ld. CIT(A) echoed the assessment order on this point.

material on record. There is no appearance from the side of

assessee despite notice. We find this issue of payment of excessive

price on purchase of sugarcane by the assessee is no more res

integra in view of the 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 has elaborately dealt with this issue. It

3 ITA No.68/PUN/2018 The Malegaon SSK Ltd. recorded the factual matrix to the effect that the assessee in that case

purchased and crushed sugarcane and paid price for the purchase

during crushing seasons 1996-97 and 1997-98, 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 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

4 ITA No.68/PUN/2018 The Malegaon SSK Ltd. 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 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

5 ITA No.68/PUN/2018 The Malegaon SSK Ltd. 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 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.”

for purchase of sugarcane under consideration is squarely covered

by the aforesaid judgment of the Hon’ble Supreme Court.

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

6 ITA No.68/PUN/2018 The Malegaon SSK Ltd. deciding it afresh as per law in consonance with the articulation of

law by the Hon’ble Supreme Court in the aforenoted judgment.

The AO would allow deduction for the price paid under clause 3 of

the Sugar Cane (Control) Order, 1966 and then determine the

component of distribution of profit embedded in the price paid

under clause 5A, by considering the statement of accounts, balance

sheet and other relevant material supplied to the State Government

for the purpose of deciding/fixing the final price/additional purchase

price/SAP under this clause. The amount relatable to the profit

component or sharing of profit/distribution of profit paid by the

assessee, which would be appropriation of income, will not be

allowed as deduction, while the remaining amount, being a charge

against the income, will be considered as deductible expenditure.

At this stage, it is made clear that the distribution of profits can only

be qua the payments made to the members. 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.

7 ITA No.68/PUN/2018 The Malegaon SSK Ltd. 6. The second ground is against the confirmation of disallowance

of Rs.1,64,81,286/- on account of sugar sold to members at

concessional rate.

material on record, it is observed that the AO made addition of the

difference between the market price and the concessional price at

which sugar (final product) was given to farmers and cane growers.

In this regard, it is observed that this issue has been considered by

the Hon’ble Supreme Court in the case of CIT Vs. Krishna Sahakari

Sakhar Karkhana Limited (2012) 27 taxmann.com 162 (SC). Vide

judgment dated 25-09-2012, the Hon’ble Supreme Court noticed

that the difference between the average price of sugar sold in the

market and the price of sugar sold by the assessee to its members at

concessional rate was taxed by the Department under the head

“Appropriation of profit”. The Hon’ble Summit Court remitted the

matter to the CIT(A) for considering, inter alia,: “whether the

abovementioned practice of selling sugar at concessional rate has

become the practice or custom in the Co-operative sugar industry?;

and whether any Resolution has been passed by the State

Government supporting the practice?; The CIT(A) would also

consider on what basis the quantity of the final product, i.e. sugar, is

being fixed for sale to farmers/cane growers/Members each year on

8 ITA No.68/PUN/2018 The Malegaon SSK Ltd. month-to-month basis, apart from others from Diwali?” The issue

under consideration can be decided by an appropriate lower

authority only on the touchstone of the relevant factors noted in the

above judgment. In our considered opinion, it would be just and fair

if the impugned order on this score is set aside and the matter is

restored to the file of AO, instead of to the CIT(A), for fresh

consideration as to whether the difference between the average price

of sugar sold in the market and that sold to members at concessional

rate is appropriation of profit or not, in the light of the directions

given by the Hon’ble Supreme Court in the case of Krishna

Sahakari Sakhar Karkhana Limited (supra). Restoration to the AO

is necessitated because, following the judgment of the Hon’ble

Apex Court in the case of Tasgaon Taluka S.S.K. Ltd. (supra), we

have remitted the issue of payment of excessive price to the file of

AO, and as such, the instant issue cannot be sent to ld. CIT(A) as it

would amount to simultaneously sending one part of the same

assessment order to the AO and other to the CIT(A), which is not

appropriate. We order accordingly.

Rs.18,92,275/- on account of VSI Contribution.

assessee made provision for Vasantdada Sugar Institute (VSI)

9 ITA No.68/PUN/2018 The Malegaon SSK Ltd. contribution and claimed deduction u/s.35(1) of the Act. The said

amount was not paid to the institute. The same being only in the

nature of provision, the AO did not allow deduction u/s.35(1). The

ld. CIT(A) countenanced the view point of the AO on this issue,

against which the assessee has approached the Tribunal.

material on record, it is found that Pune Benches of the Tribunal in

the case of Bhima S.S.K. Ltd. (ITA No.1414/PUN/2000) has

decided this issue in favour of the assessee. No material has been

placed on record by the Revenue to show that this order of the

Tribunal has been reversed or modified in any manner by the

Hon’ble High Court. Respectfully following the precedent, we

decide this issue in favour of the assessee.

purposes. Order pronounced in the Open Court on 21st October, 2021.

Sd/- Sd/- (S.S. VISWANETHRA RAVI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 21st October, 2021 सतीश

ITA No.68/PUN/2018 The Malegaon SSK Ltd. आदेश की �ितिलिप अ�ेिषत/Copy of the Order is forwarded to: अपीलाथ� / The Appellant; 1. ��थ� / The Respondent; 2. 3. The CIT(A)-7, Pune 4. The PCIT-6, Pune 5. DR, ITAT, ‘A’ Bench, Pune गाड� फाईल / Guard file. 6.

आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

Date 1. Draft dictated on 21-10-2021 Sr.PS 2. Draft placed before author 21-10-2021 Sr.PS 3. Draft proposed & placed before JM the second member 4. Draft discussed/approved by JM Second Member. 5. Approved Draft comes to the Sr.PS 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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