{"id":176852,"date":"2009-04-04T00:00:00","date_gmt":"2009-04-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-iv-vs-the-solapur-dist-coop-milk-on-4-april-2009"},"modified":"2016-01-27T09:01:45","modified_gmt":"2016-01-27T03:31:45","slug":"the-commissioner-of-income-tax-iv-vs-the-solapur-dist-coop-milk-on-4-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-iv-vs-the-solapur-dist-coop-milk-on-4-april-2009","title":{"rendered":"The Commissioner Of Income Tax-Iv vs The Solapur Dist.Coop Milk … on 4 April, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Commissioner Of Income Tax-Iv vs The Solapur Dist.Coop Milk … on 4 April, 2009<\/div>\n
Bench: F.I. Rebello, R.S. Mohite<\/div>\n
                                      -1-\n\n\n\n\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                               \n                  ORDINARY ORIGINAL CIVIL JURISDICTION\n                      INCOME TAX APPEAL NO. 997 OF 2008\n\n\n\n\n                                                                      \n      The Commissioner of Income Tax-IV\n\n                                                                           .. Appellant\n                          vs\n\n\n\n\n                                                                     \n      The Solapur Dist.Coop Milk Producers\n      and Process Union Ltd                                      ..          Respondent\n\n                                          WITH\n            INCOME TAX APPEAL (Lodging) NO.290 of 2006\n\n\n\n\n                                                    \n      The Commissioner of Income Tax (Central)\n                                                                           .. Appellant\n                            ig    vs\n\n      The Kolhapur Zilla Sahakari Dudh Utpadak\n      Sangh Ltd                                                            .. Respondent\n                          \n                                       ..\n\n      Mr.P.S.Sahadevan with Mr.Vimal Gupta for\n      Appellant\n      \n\n      Mr.S.N.Inamdar for Respondent\n                                    ..\n   \n\n\n\n                             CORAM : F.I.REBELLO AND\n                                              R.S.MOHITE, JJ\n      JUDGMENT RESERVED ON:                 18th March, 2009\n      JUDGMENT PRONOUNCED ON: 4th April, 2009\n\n\n\n\n\n     JUDGMENT ( Per F.I.Rebello, J )\n<\/pre>\n
     1.               These                appeals       are     being      disposed       of    by           this<\/p>\n
     common order as they involve the same questions of<\/p>\n
     law which is framed as under :\n<\/p>\n
                                       .             ”         Whether     on          the        facts       and<\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                                      -2-<\/span><\/p>\n
                               circumstances                         of            the           case              and                in           law,         the<\/p>\n
                               Hon’ble                               Tribunal                   was                                  justified                    in<\/p>\n
                               deleting                          the                     addition                        of                      Rs.1,55,81,519\/-\n<\/p><\/blockquote>\n
                               by                         holding                        the          said              amount                          represented<\/p>\n
                               rate                            difference                payment                  in            the                        purchase<\/p>\n
                               of                         milk             paid          by            the             assessee               even           though<\/p>\n
                               the                          said             payment                  lof              Rs.1,55,81,519                           was<\/p>\n
                               paid            at              the          end           of           the             previous               year.               “<\/p><\/blockquote>\n
             A few facts may now be set out from the case of<\/p>\n
     and                Process<\/p>\n
     ‘ The Solapur District Cooperative Milk Producers<\/p>\n
                                                     Union                 Ltd.’         The           facts            in                   the              other<\/p>\n
     case are also same or similar except to the extent<\/p>\n
     of supply of milk by non-members also.\n<\/p>\n
     2.                              The                       assessee-societies                                 are                  federal                 milk<\/p>\n
     societies             and                      its                   members                           are                 primary                        milk<\/p>\n
     co-operative                        societies                           and              the           business                          of                the<\/p>\n
     assessee                       is          to               purchase                milk           from                  its            members            and<\/p>\n
     other                 producers                      of              milk           at           the              rate           i.e.                   similar<\/p>\n
     to          both            the                members                     and             outside                milk                producers            and<\/p>\n
     sell                  the                milk               to              various              parties.                             The            difference<\/p>\n
     in                  purchase                   price                 and            sale           price                 after              the         normal<\/p>\n
     expenses                            is               the               profit              of             the                  assessee-              societies<\/p>\n
     which                is                   liable             to         tax.                    This         profit              in         turn             is<\/p>\n
     distributed to the              member primary milk<\/p>\n
                                                                                                    ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                                   -3-<\/span><\/p>\n
     co-operative societies.\n<\/p>\n
     3.                     The                 rate          of            purchase             price          is          fixed                  by              the<\/p>\n
     board                    of                      the              assessee-societies.                                        The                        purchase<\/p>\n
     price              is                    linked          to            the          fat        content             of                    milk                and<\/p>\n
     also          varies                    according                 to                seasons               like                the               rate          for<\/p>\n
     purchase of milk in the lean season is different<\/p>\n
     from the flush season.\n<\/p>\n
     4.                            The           respondents                      fixes           the            rate             of                       processing<\/p>\n
     of             milk                at        the             beginning                 of           the           year              on          the         basis<\/p>\n
     of          the                 price                  declared                      by              the                 Government                            of<\/p>\n
     Maharashtra                          and                     price             which               other           buyers                 pay                  to<\/p>\n
     the         vendors.                             These              rates              are            revised                 from               time          to<\/p>\n
     time.                           It          is          made                 always            clear             that             the           rates         are<\/p>\n
     provisional                        to                  the                      final           milk                         rate                      difference<\/p>\n
     which                   is                 determined                   in          the        month               of             March                    every<\/p>\n
     year                         and            paid              subsequently                      in               the                following               year.\n<\/p>\n
     It                is                       ascertained                  and               verified              that           the                       primary<\/p>\n
     milk                   society              also             in              turn           makes               payment                  of                 final<\/p>\n
     rate                         difference                to               the               individual                   milk                            producers<\/p>\n
     around                         Diwali.                              The               respondents                      are               apex             district<\/p>\n
     societies                          of             primary                     milk             societies;                                              Individual<\/p>\n
                                                                                                  ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                             -4-<\/span><\/p>\n
     milk           producers                   are                 members                                of               these                 primary<\/p>\n
     societies.                           Individual                           producers                       supply           milk                    to<\/p>\n
     the          primary                milk            co-operative                         milk                societies.                          The<\/p>\n
     milk              so                 collected            is            brought                to                   the                    processing<\/p>\n
     unit                 of          the              assessee                societyand                      payment               to           member<\/p>\n
     cooperative                                             socties\/non-member                                                              cooperative<\/p>\n
     societies               is          made           on           the            basis            of            quality           of                fat<\/p>\n
     and           SNF              content.                    Milk                     is              also              supplied                    by<\/p>\n
     non-members                    to                  the              primary               milk              societies.                           The<\/p>\n
     processed               milk                 is                 supplied                 to         the                ”                Mahananda<\/p>\n
     i.e.Maharashtra<\/p>\n
     milk<\/p>\n
                         federation.\n<\/p>\n
                                         Rajya<\/p>\n
                                                         The
\n                                                                     Co-op<\/p>\n
                                                                           assessee
\n                                                                                          Dudh<\/p>\n
                                                                                                   before
\n                                                                                                                Sangh,<\/p>\n
                                                                                                                     the
\n                                                                                                                                 a<\/p>\n
                                                                                                                                  end
\n                                                                                                                                                     state<\/p>\n
                                                                                                                                                        of<\/p>\n
     the               financial            year              depended                   on              its         books,               makes         a<\/p>\n
     final                rate            difference                to             the             primary                society                    who<\/p>\n
     in turn pay the difference to members and<\/p>\n
     non-members who supply milk.\n<\/p>\n
     5.             The           learned              A.O.                        refused               to         exclude               the        final<\/p>\n
     rate difference paid from the total amount paid by<\/p>\n
     the respondents on the ground that :\n<\/p>\n
                                         (a)                   It          was       not     linked     to    the   quality                            of
\n                            the          milk                            like        fat      content      or     source                               of
\n                            milk,         quality                             of        milk,      period           of                               milk<\/p>\n
                            procurement.\n<\/p><\/blockquote>\n
                                                (b)             It          was          paid            only        to         member           societies
\n                            and                        not                          to                            other                         suppliers;\n<\/p><\/blockquote>\n
                                                (c)      It  was                     not           linked         to   the           price         paid
\n                            by                    government                         or                          other                       cooperative
\n                            societies;\n<\/p><\/blockquote>\n
                                                                                          ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                            -5-<\/span><\/p>\n
                                         (d) It was made on the basis of the
\n                          accrued profits of the year and hence the<\/p>\n
                          amounted to distribution of profits;\n<\/p><\/blockquote>\n
     6.                 Against          the          order             of             the         A.O.                    an         appeal             was<\/p>\n
     preferred                  by         the               assessee.                                  The               C.I.T.                  (Appeals)<\/p>\n
     affirmed           the          claim                  of               the               assessee                    that           the         prices<\/p>\n
     fixed                provisionally                            were                  not             found                  supported                 by<\/p>\n
     any                documentary                  evidence.                                The              C.I.T.                             (Appeals)<\/p>\n
     also                  observed                  that           the                      assessee’s                   arguments                      that<\/p>\n
     such           payment                    are          made             to          keep            an              edge             over            its<\/p>\n
     competitors<\/p>\n
     supply<\/p>\n
                              milk
\n                                  and<\/p>\n
                                           to
\n                                                 attract<\/p>\n
                                                            the
\n                                                                        more<\/p>\n
                                                                             assessee
\n                                                                                              and<\/p>\n
                                                                                                        is
\n                                                                                                              more<\/p>\n
                                                                                                                         without
\n                                                                                                                                  members<\/p>\n
                                                                                                                                          any
\n                                                                                                                                                           to<\/p>\n
                                                                                                                                                      merit.\n<\/p>\n
     It           was             also                 held         that                the                   assessees                  has            been<\/p>\n
     unable               to               establish                that                 the            final                        market              rate<\/p>\n
     difference                was                   paid          at              a           fixed               price                per             litre<\/p>\n
     irrespective               of                    the           quality                   of             the           milk         fat              and<\/p>\n
     its                  content.                           The                   C.I.T.                                (Appeals)              substantially<\/p>\n
     agreed with the reasoning of the A.O.                        and<\/p>\n
     accordingly dismissed the appeal.\n<\/p>\n
     7.                 The           assessees                    aggrieved                       preferred                    an        appeal           to<\/p>\n
     the                I.T.A.T.                        in              respect                    of              the            findings          recorded<\/p>\n
     by             the         A.O.                        which              we               have                reproduced            earlier        and<\/p>\n
     which is affirmed by the C.I.T.(Appeals), the<\/p>\n
     tribunal recorded as under :\n<\/p>\n
                                                                                               ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                          -6-<\/span><\/p>\n
                          (i)         The      basic    price     itself     was      based         on
\n          quality,             any            increase            in             basic           price
\n          which                   was          provisional         was                   automatically<\/p>\n
          linked                 with        quality        e.g.if         price        paid        on
\n          the            basis     of     fat       and     SNF        content      was      X      &
\n          Y              final      rate       difference      of        say       25            paise<\/p>\n
          increased              theprice        as      X+        25        paise       &Y       +25
\n          paise.\n<\/p><\/blockquote>\n
                          (ii)            The     supply        by       non-members         was
\n          miniscule              and        that          too         only          for      two<\/p>\n
          years.                     Therefore,        non        payment       of          final
\n          rate              difference            to       outsiders            does          not
\n          convert                the         payments            to        members             in
\n          respect            of          milk            as          appropriation             of
\n          profits.                   Here,      we       may        mention      the        case
\n          of              Solapur            District                  Cooperative          Milk<\/p>\n
          Producers                 and          Process              Union           Ltd,      a
\n          finding           has        been         recorded         that        payment       is
\n          made  ig       to         members          as        well         as       non-members.\n<\/p><\/blockquote>\n
                         (iii) The government only fixes minimum
\n          price to be paid. The board has
\n          authority under bye laws to fix the<\/p>\n
          price of the milk purchased from time to
\n          time. In view of the cooperative
\n          principles, assessee tend to pass on the
\n          maximum price to its member societies.
\n          Similar situation was obtaining in<\/p>\n
          Mehsana Districts case 282 ITR 24 wherein
\n          Gujrat High Court has answered similar
\n          issue in favour of the assessee.\n<\/p><\/blockquote>\n
                        (iv)          The           resolution      to    pay            final        rate
\n          difference           were              always               passed              in           the
\n          month           of             March         every        year      i.e.                 before
\n          the         end            of       previous       year       and             only           the<\/p>\n
          resolution               to         disburse         the         amounts                  were
\n          passed             after              the              year          end.                 Rate
\n          difference              was         paid        only         on        the         basis      of
\n          quantity        of          milk           supplied           during            year         not
\n          in           proportion                of       shareholding          so        as            to
\n          amount               to        distribution         of        profits.                      The<\/p>\n
          dates             on        which          the        resolutions         is        to      pay
\n          the              final           milk                   rate           difference            are
\n          recorded             before        the        end        of      the         year.             It
\n          accordingly                 allowed             the                 appeal                  and
\n          allowed                deductions                  of                  final               rate.\n<\/p><\/blockquote>\n
     8.   At       the          hearing     of       these        appeals,       on        behalf       of<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                                      -7-<\/span><\/p>\n
     the          revenue,                     learned                   counsel                      submits                     that                there           is<\/p>\n
     material                on                      record              to          show               that              the                 final                 rate<\/p>\n
     difference                  was                   paid                     after             accrual                        of                the              net<\/p>\n
     profits                and                 out                 of                      the                   net             profits.                          The<\/p>\n
     transactions                              which                 were                   recorded                       and               noted               during<\/p>\n
     the             course                      of           survey                shows              that              the                 final                 milk<\/p>\n
     rate             difference                           was                      paid              after             accrual                       of            net<\/p>\n
     profit                  and                payment                   of            final                    milk             rate                        difference<\/p>\n
     was          not              included                   in               the                total                  per             litre               production<\/p>\n
     of             cost                  of          milk.                     This             was              corroborated                         in           the<\/p>\n
     statement<\/p>\n
     society.<\/p>\n
\n                                       \n                                       recorded\n\n                                         It           is\n                                                             of\n\n                                                                    also\n                                                                              the\n\n                                                                                     set\n                                                                                            Finance\n\n                                                                                                      out\n                                                                                                                         Manager\n\n                                                                                                                        that           the\n                                                                                                                                                 of                 the\n\n                                                                                                                                                              resolution\n                                      \n     of             final                 rate                     difference               in              the          same                    case               was\n\n     passed                 after                          expiry                      of             the                        relevant                      financial\n\n     year.                  There                     was                  no                legal                       obligation                     on          the\n      \n\n\n     assessee                society                          to           make              payment                     of                  final                  rate\n   \n\n\n\n     difference                          to            member                       cooperative                     societies.                                      Our\n\n     attention                    is                   drawn                    to                          the                fact           that                  the\n\n     C.I.T.(Appeals)                           has                       recorded                 a               finding                        that                 in\n\n\n\n\n\n     some                    cases                   the             assessee                    paid               commercial                                 purchase\n\n     price                  by           even               excluding                 the              amount                   of           final                  rate\n\n     difference                    to                       milk              producers                     as           compared                by                 the\n\n\n\n\n\n     purchase                price                     of                     milk          to              government                        and                 some\n\n     other           cooperative                       societies.                                      It                 is             submitted                  that\n\n     there                   is               also            a               finding                  of               C.I.T.(Appeals),                            that\n\n     in               some                           cases           the              apex                  societies                 purchased                    milk\n\n\n\n\n                                                                                                   ::: Downloaded on - 09\/06\/2013 14:29:51 :::<\/span>\n                                                     -8-<\/span>\n\n\n\n\n     under                       consideration                        at               a            fixed               purchase                   price              and\n\n<\/pre>\n
     not at provisional price. For these reasons, the<\/p>\n
     appeals ought to be dismissed.\n<\/p>\n
     9.                        The           entire              argument                   sought           to           be          advanced                         on<\/p>\n
     behalf         of           the               revenue                  is             that          what             in           fact             is           paid<\/p>\n
     to              the              milk            suppliers                   whether                they            be           members                          or<\/p>\n
     non-members                         is                out               of              the            profits             of               the              society;\n<\/p>\n
     The             resolution                           to          pay           may             be          passed                       before                   the<\/p>\n
     accounts              are                approved,                          but                nevertheless,                     it               is             out<\/p>\n
     of<\/p>\n
     A.O.\n<\/p>\n
                     profits.<\/p>\n
\n\n                               as\n                                       ig            That\n\n                                                    affirmed\n                                                                       being\n\n                                                                                    by\n                                                                                            the\n\n                                                                                                      the\n                                                                                                         case             the              order\n\n                                                                                                                              C.I.T.(Appeals)\n                                                                                                                                                            of        the\n\n                                                                                                                                                                      was\n                                     \n     justified.                        Apart                   from                 supporting                    the            order                 of             the\n\n     ITAT,                      it            is               also               submitted,                that               the            profits                were\n\n     arrived                     at           after               debiting                    the            expenditure                    by                       way\n      \n\n\n     of            market                rate                    difference                              and                  there                   was              no\n   \n\n\n\n<\/pre>\n
     allocation of the profits and this fact has<\/p>\n
     remained uncontroverted.\n<\/p>\n
              In         the           case               of               C.I.T.                     vs            Shri              Sarvaraya                    Sugars<\/p>\n
     Ltd,                  (1987)              163                ITR               429              and            Addl.C.I.T.Kanpur                                  vs<\/p>\n
     MP               Sugar             Mills               (P)             Ltd             (1984)           148           ITR               203,            it       has<\/p>\n
     been                        held                that                  the               liability              for                additional                   price<\/p>\n
     of               sugar             cane                   under              price             linking              formula                 in                   the<\/p>\n
     year                the                  sugarcane                           is          purchased                 and                   arises                   on<\/p>\n
     receipt             of             goods                     and                      additional                   price                paid                  relates<\/p>\n
                                                                                                    ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                                         -9-<\/span><\/p>\n
     back             to            such               receipts.                            If              this            test          is              applied           to<\/p>\n
     the              assessee’s                      case,                 it                  would                    be              squarely                     covered.\n<\/p>\n
     Payment                              is            made                 not                  in               proportion                  to           shareholding<\/p>\n
     but,              based                    on                    quality                    of                 milk                 and                          quantity<\/p>\n
     supplied.                            The               tribunal                  has               further                held                that           ”         If<\/p>\n
     in          the                final               accounts                      certain                 amounts                   are               taken             as<\/p>\n
     liability              for                   purchase                       of                goods,                     quantified                   on              the<\/p>\n
     basis of quality or quantity of goods purchased<\/p>\n
     then it cannot be said that the payment amounts<\/p>\n
     to appropriation of profits.\n<\/p>\n
     10.
\n                                           ig       Is the price difference paid out of the<\/p>\n
     profits               ?                          Firstly,                   the                          profits                   have                to             be<\/p>\n
     ascertained.                                If               there                be                   profits                they               attract              tax<\/p>\n
     at           that                    point                  of                time.                    The                 word                  ‘profit               as<\/p>\n
     observed                         by                          Lord                Chancellor                    Halsbury              in                      Greshem<\/p>\n
     Life              Assurance                       Society                    of                  Styles                  (1982)                 A.C.309                is<\/p>\n
     to          be             understood                       in          its                 natural              and               proper              sense            –\n<\/p>\n
     in           a                 sense                   in              which                no                 commercial                      man                 would<\/p>\n
     misunderstand.                                         When                           an          individual                  or          a                  company<\/p>\n
     has                       in              that              proper                sense                 ascertained                  what              are            the<\/p>\n
     profits                         of               his              business                   or               trade            the                          destination<\/p>\n
     of                    profits                          charged                   on           those                 profits          by                          previous<\/p>\n
     agreements                                or                     otherwise                        is                  immaterial.                                    The<\/p>\n
     profits                   are                     to                   be                     determined                           considering                       two<\/p>\n
     points                    of                   time              and          they               can           be                  determined                       only<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                                     -10-<\/span><\/p>\n
     after                   all             expenses                     incurred                 for                the           business                         are<\/p>\n
     deducted                   from                     the          gross             income.                         As           held              by            the<\/p>\n
     Supreme                    Court                    in                    CIT            vs          Travancore                           Sugars                and<\/p>\n
     Chemicals                   Ltd                     (1973)                88       ITR              the           amount                        paid             by<\/p>\n
     reeference                    to             profit             can              either             be             that,             –            (i)             it<\/p>\n
     is              paid                       after               the             profits          become                           deductible                      or<\/p>\n
     (ii)              the                   amount                   is                       payable                      prior               to                  such<\/p>\n
     distribution                  to                 be                       computed                                by                     reference                to<\/p>\n
     notional                      profits                 or              what               in           certain                  cases                        termed<\/p>\n
     as                approved                    net              profits.                        In                the           first                       instance,<\/p>\n
     it             will<\/p>\n
     deductible in computation
\n                                       ig  be<\/p>\n
                                                   of profits as
\n                                                                distributed                 out           of           profits                       and             not<\/p>\n
     expenditure.\n<\/p>\n
     10.                        Section                         64             of           the                       Maharashtra                            Cooperative<\/p>\n
     Societies                        Act,            1960                 (M.C.S.Act)                     sets               not               that                  no<\/p>\n
     part                  of                the                funds                             other                 than                   the              dividend<\/p>\n
     equalisation                or                bonus                   equalisation                        funds                 as                 may           be<\/p>\n
     prescribed             or                the               net                  profits               of                the                society             shall<\/p>\n
     be              paid             by            way              of             bonus           or           dividend                 or                   otherwise<\/p>\n
     distributed                        among                 its              members.                               Under               section                     65<\/p>\n
     the                   society                              shall                construct                  its             relevant                          annual<\/p>\n
     financial                             statements                      and                 arrive                   at                its                consequent<\/p>\n
     net               profit                or            loss                in        the              manner                   prescribed.                       The<\/p>\n
     proviso           explains                     that                  no            part               of                 the               profits             shall<\/p>\n
     be               appropriated                                  except             with               the               approval              of                 the<\/p>\n
                                                                                                    ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                                    -11-<\/span><\/p>\n
     annual                       general                 meeting                 and             in             conformity                     with         the<\/p>\n
     Act,                rules           and            bye-laws.                        From             a            reading             of                this<\/p>\n
     provision,                   it                     is           apparent             that            the                      net                   profits<\/p>\n
     have                first          to          be             determined              and            then               only          can                be<\/p>\n
     appropriated                      after                       the                  approval                of                  the                   annual<\/p>\n
     general                meeting.                                      The        net              profits           do          not                   accrue<\/p>\n
     from         day            to          day              or          from           month             to            month              and           profits<\/p>\n
     have          to             be            ascertained                     by              comparison                    at           two            stated<\/p>\n
     points                of           time.                       The           assessee              when             it         decided                   to<\/p>\n
     pass                  a             resolution                  to           pay             the                price           difference              had<\/p>\n
     not<\/p>\n
     resolution
\n                         ascertained<\/p>\n
                           passed
\n                                       ig          at
\n                                                          the<\/p>\n
                                                                    its
\n                                                                            net<\/p>\n
                                                                                  A.G.M.<\/p>\n
\n                                                                                                      profits\n\n                                                                                                                       to\n                                                                                                                              nor\n\n                                                                                                                                     distribute\n                                                                                                                                                 was           a\n\n                                                                                                                                                             the\n                                     \n     profits                as            by              way              of           higher             price              difference.                     In\n\n     the                  instant               case,                admittedly                 the             decision              to                     pay\n\n     the                additional                       purchase               price            was            based                      on                the\n      \n\n\n<\/pre>\n
     resolution of the Board of Directors, approved at<\/p>\n
     the general meeting.\n<\/p>\n
     11. From the facts on record and arguments<\/p>\n
     advanced what emerges is as under :\n<\/p>\n
                                                     1)                   That    the   price     difference   paid                                    in   the
\n                            case                       of                Kolhapur     society      to      its                                          members
\n                            and                     in                    case     of    Solapur      society   to                                         both
\n                            members                                         and                  non-members                                                  ;\n<\/p><\/blockquote>\n
                                                    2)              Payment                is     made           only         to     members                who
\n                            are                                                                                                                        suppliers;\n<\/p><\/blockquote>\n
                                                                                                ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                             -12-<\/span><\/p>\n
                                          3) Payment is made to suppliers not on
\n                          the basis of the shares held by them but,<\/p>\n
                          on the amounts of the milk supplied and
\n                          on the basis of the fat content of the
\n                          milk ;\n<\/p><\/blockquote>\n
                                         4)    The       resolution   to      pay     additional     price
\n                          is             taken     before        the   end       of     the      financial
\n                          year      i.e.            before        the   profits     can       be      said
\n                          to           accrue    though       payment     is     made      in          the<\/p>\n
                          subsequent              financial            year;                          and<\/p>\n<\/blockquote>\n
                                      5)                    The         profits        are       only         payable         in   terms
\n                          of          section                          65             of                  the                 Maharashtra
\n                          Cooperative                                Societies                            Act,                     1960.\n<\/p><\/blockquote>\n
     12.<\/p>\n
\n\n     consideration\n                          A\n                                     ig    similar\n\n                                      before         the\n                                                            question\n\n                                                                     Gujrat\n                                                                                        had\n\n                                                                                      High\n                                                                                                       come\n\n                                                                                                     Court.\n                                                                                                                         up              for\n\n                                                                                                                                        The\n                                   \n     Gujrat           High                 Court                was          considering                  in             case             of\n\n     Commissioner                     of                  Income             Tax         vs          Mehasena                        District\n\n     Cooperative              Milk           Producers                Union             Ltd               (2005)              (195          )\n      \n\n\n     CTR              385,           as      to       whether            a          claim        for           deduction                was\n   \n\n\n\n     allowable                 either                 under            section           28          or          section                  37\n\n     (1).                     There                also         an        additional            payment            was                 made\n\n     towards              the              price           of                 the            milk.                 The                 A.O.\n\n\n\n\n\n     disallowed               the            same               on              the              ground               of               profit\n\n     adjustment.                           The                  C.I.T.(Appeals)                                affirmed                  the\n\n     order           of              the           A.O.                      The              tribunal             allowed               the\n\n\n\n\n\n<\/pre>\n
     assessee’s claim. Various contentions were sought<\/p>\n
                                                                                    ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                                  -13-<\/span><\/p>\n
     to             be                    canvassed                before           the           learned                           High              Court.\n<\/p>\n
     The                 learned               bench              noted            the           legal             position                as             to<\/p>\n
     when            accrual                   of                 profits                 can         be                said                to          have<\/p>\n
     accrued.                       It                considered              the           case            of                  C.I.T.                    vs<\/p>\n
     Ashokbhai                  Chimanbhai                          (1965)            56          ITR              42                  (SC)              and<\/p>\n
     noted               that                  the          words             “accrue”                and          ”                  arise”             are<\/p>\n
     used<\/p>\n
     Income
\n                          to<\/p>\n
                               is
\n                                     ig   said
\n                                                 contradistinguish<\/p>\n
                                                           to         be            received
\n                                                                                                the<\/p>\n
                                                                                                            when
\n                                                                                                                         word<\/p>\n
                                                                                                                               it          reaches
\n                                                                                                                                                   ‘receive’.\n<\/p>\n
                                                                                                                                                         the<\/p>\n
     assessee.                           When                      the            right          to          receive                the              income<\/p>\n
     becomes               vested                    in               he           assessee,           it                is                 said          to<\/p>\n
     accrue or arise. Dealing with profits, this is<\/p>\n
     what the learned Court said:\n<\/p>\n
                                          ” Profits do not accrue from day to day
\n                           or even from month to month and have to
\n                           be ascertained by a comparison of assets
\n                           at two stated points. Unless the right<\/p>\n
                           to profits comes into existence there is
\n                           no accrual of profits and the destination
\n                           of profits must be determined by the
\n                           title thereto on the day on which they
\n                           arise. “<\/p><\/blockquote>\n
                Applying                 the              test,             the             learned                    Court                held         that<\/p>\n
     because              the                  board                  resolved                    to                   fix                 the          final<\/p>\n
     purchase              price                    and               pay           on          the         last         day                 of          the<\/p>\n
     accounting                     period                 it               would                       not                         amount                to<\/p>\n
                                                                                            ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                                     -14-<\/span><\/p>\n
     application             of               profits.                             The               Court               also            noted             that<\/p>\n
     the           profits              to           be           assessed               have             to       be           the         ”              real<\/p>\n
     profits       ”              and              are               required             to              be           determined                on         the<\/p>\n
     ordinary                  principles                              of                  commercial                             trading                   and<\/p>\n
     commercial accounting. The Court further noted as<\/p>\n
     under :\n<\/p>\n
                                                     a)                     The     expenditure                  in           question     cannot    be
\n                             termed                        to                  be     application                  of                 income         in
\n                             absence                            of            any      evidence                     as           to       accrual    of
\n                             profits                            in              light         of                                settled           legal<\/p>\n
                             position;\n<\/p><\/blockquote>\n
                                        ig   (b)      The      payment        of      additional\/final      price
\n                             made             on           the   last     day      of   the            accounting
\n                             year        is       allowable      under        section      28        of       the
\n                             Act            being         a             necessary         deduction           for
\n                             ascertaining              the            real                profits              on<\/p>\n
                             principles of commercial accounting and ;\n<\/p><\/blockquote>\n
                                             (c)        The         payment           in         question                                                    is
\n                             alternatively                    allowable         under           section                                                     37<\/span>
\n                             of            the            Act      having     been       incurred                                                        wholly<\/p>\n
                             and                exclusively         for            the          purpose                                                      of
\n                             business             carried            on     by      the      assessee                                                        in
\n                             light            of      the     evidence     which       has      come                                                        on<\/p>\n
                             record                                                                                                                           ;\n<\/p><\/blockquote>\n
     13.               Coming                to           our           case,            (as             we        have           noted           this        is<\/p>\n
     not               the                        case           of            distribution               of           profits)          as                 the<\/p>\n
     amount             to                   be                 paid         was         not         out                 of             the              profits<\/p>\n
     ascertained                        at            the              annual              general                meeting.                         It         is<\/p>\n
     not        paid              to           all              shareholders.                             The            amount                 which         is<\/p>\n
     the               subject               matter              is           paid             to             members             who                    supply<\/p>\n
     milk              and                    in          some              case         also            to      non-members.                              The<\/p>\n
     payment                      is          for           the              quantity               of          milk            supplied                    and<\/p>\n
                                                                                                ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>
\n                                                -15-<\/span><\/p>\n
     in                terms           of             the           quality          supplied.                       The           commercial<\/p>\n
     expediency                for               payment                  of          this               price               are             the<\/p>\n
     market                  conditions,                      and        the           need             to         procure                 more<\/p>\n
     milk          from                 the                 members           and              non-members                    to             the<\/p>\n
     assessee.                   To              our            mind,               therefore,               the        amount              paid<\/p>\n
     by           no                 stretch          of       imagination            can          be         said            to              be<\/p>\n
     dividend           to            the              members                 or            shareholders               or               payment<\/p>\n
     in the form of bonus as bonus also has to be paid<\/p>\n
     from the accrued profits.\n<\/p>\n
     14.<\/p>\n
\n\n     agreement\n                         In\n\n                         with\n                                  ig     the\n\n                                         the\n                                                      light\n\n                                                            views\n                                                                    of        our\n\n                                                                          taken\n                                                                                       discussion,\n\n                                                                                              by\n                                                                                                               we\n\n                                                                                                             the\n                                                                                                                              are\n\n                                                                                                                        tribunal\n                                                                                                                                              in\n\n                                                                                                                                             and\n                                \n     the               question             at         present           has           to          be          answered             in       the\n\n<\/pre>\n
     affirmative in favour of assessee and against the<\/p>\n
     the revenue. Appeals dismissed.\n<\/p>\n
     { R.S.Mohite, J }                                                                       { F.I.Rebello, J }<\/p>\n
                                                                                      ::: Downloaded on – 09\/06\/2013 14:29:51 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Commissioner Of Income Tax-Iv vs The Solapur Dist.Coop Milk … on 4 April, 2009 Bench: F.I. Rebello, R.S. Mohite -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 997 OF 2008 The Commissioner of Income Tax-IV .. Appellant vs The Solapur Dist.Coop Milk […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-176852","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Commissioner Of Income Tax-Iv vs The Solapur Dist.Coop Milk ... on 4 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-iv-vs-the-solapur-dist-coop-milk-on-4-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Commissioner Of Income Tax-Iv vs The Solapur Dist.Coop Milk ... on 4 April, 2009 - 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