{"id":56875,"date":"1984-08-13T00:00:00","date_gmt":"1984-08-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/national-agricultural-vs-inspecting-assistant-on-13-august-1984"},"modified":"2016-04-21T01:17:44","modified_gmt":"2016-04-20T19:47:44","slug":"national-agricultural-vs-inspecting-assistant-on-13-august-1984","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/national-agricultural-vs-inspecting-assistant-on-13-august-1984","title":{"rendered":"National Agricultural &#8230; vs Inspecting Assistant &#8230; on 13 August, 1984"},"content":{"rendered":"<div class=\"docsource_main\">Income Tax Appellate Tribunal &#8211; Delhi<\/div>\n<div class=\"doc_title\">National Agricultural &#8230; vs Inspecting Assistant &#8230; on 13 August, 1984<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1985 11 ITD 165 Delhi<\/div>\n<div class=\"doc_bench\">Bench: K Srivastava, S Mehra<\/div>\n<\/p>\n<pre><\/pre>\n<p>ORDER<\/p>\n<p> K.C. Srivastava, Accountant Member  <\/p>\n<p>1. This appeal by the assessee is directed against the order of the Commissioner (Appeals) and relates to the assessment year 1978-79. The assessee is an apex co-operative society engaged mainly in marketing of agricultural produce of its members and some other activities as well. The accounting year ended on 30-6-1977.\n<\/p>\n<p>2.  The first ground is that deduction under Section 80P(2)(a)(m)  of the Income-tax Act, 1961 (&#8216;the Act&#8217;), should have been allowed on gross profit and not on processed income under the Act. The IAC, who completed the assessment, had   allowed deduction of Rs. 68,97,076 under the above provision. This amount was shown by the assessee as the net income attributable  to the activity of marketing the  agricultural produce   of the society&#8217;s members. A bifurcation between the activities, vis-a-vis, members and non-members, was made by the assessee and there is no  dispute about it. However, the assessee claimed before the Commissioner (Appeals) that the deduction to be allowed under Section  80P(2)(a)(iii)  should  be on the whole of gross profit attributable to the marketing of agricultural   produce of its members. This plea was,   however, rejected by the learned Commissioner (Appeals), who relied upon the decision of the Supreme Court in the case  of Cambay Electric Supply Industrial Co. Ltd. v. CIT [1978] 113 ITR 84. The assessee is in appeal before us.\n<\/p>\n<p>3.  The learned Counsel for the assessee submitted  before us that the provision  of Section  80P(2) refers  to the   deduction of the whole of the amount of profits and  gains of business attributable to the marketing of agricultural produce of the members  of the co-operative society. He laid emphasis on the words  &#8216;the   whole  of and   submitted that it could only mean the gross profit. In this connection,  he referred to the decision of the Supreme Court in the case of  Cloth   Traders (P.) Ltd.   v. Addl. CIT [1979] 118 ITR 243. That was a case  for deciding the scope of Section 80M of the Act and their Lordships  considered the meaning of &#8216;any income by way of dividends&#8217;. It  was held   that if the gross total income included dividends, whatever was the quantum   of such income, it would be eligible for deduction. It was contended by the learned Counsel that the reliance placed by the  Commissioner  (Appeals)  on the decision of the Supreme Court in the case of Cambay Electric Supply Industrial Co. Ltd. (supra) is misplaced, as that was a case for deciding the scope of Section 80E of the Act, as it stood prior to 1967, and their Lordships held that when the Legislature uses the words &#8216;attributable to&#8217;, it has a wider import than the expression &#8216;derived from&#8217;. He also pointed out that in that provision, the specific words used were &#8216;as computed in accordance with the other provisions of the Act&#8217;. Their Lordships have further held that Section 72(1) of the Act regarding the carry forward of losses has direct impact upon the computation under the head &#8216;Profits and gains of business or profession&#8217;. In this connection, the learned Counsel drew our attention to certain decisions of the Calcutta High Court. He first referred to the decision in the case of CIT v. Belliss &amp; Morcom (I.) Ltd. [1982] 136 ITR 481, where the Calcutta High Court had considered the scope of the provisions of Section 80-I of the Act. Their Lordships held that the expression &#8216;where the gross total income includes any profits and gains attributable to any priority industry&#8217; is descriptive of the types of income or profits which will be entitled to relief and such profits must relate to the profits of the priority industry. In this case, the question which was referred to their Lordships was whether the profits and gains attributable to any priority industry were to be arrived at without deducting therefrom any loss Parising in any other business and their Lordships, after considering various decisions of the High Courts and the Supreme Court, held that such profits and gains had to be taken without deducting therefrom any loss arising in any other business. The other case to which a reference was made was the decision of the Calcutta High Court in the case of CIT v. Orient Paper Mills Ltd. [1983] 139 ITR 763 in which it was held that the profit of the priority industry was to be taken before setting off the unabsorbed development rebate of the priority industry itself. In this decision, their Lordships dissented from the decisions of the Madras High Court in the cases of CIT v. English Electric Co. Ltd. [1981] 131 ITR 277 and CIT v. Standard Motor Products of India Ltd. [1981] 131 ITR 300. In this decision, their Lordships had also considered the decisions in the case of Cloth Traders (P.) Ltd. (supra) and Cambay Electric Supply Industrial Co. Ltd. (supra) and without holding that there was any contradiction between the two, they followed the ratio of the decision in the case of Cloth Traders (P.) Ltd. (supra), which was a decision given by a larger Bench. The learned Counsel has further relied on another decision in the case of CIT v. Oil India Ltd. [1983] 143 ITR 848 (Cal.), but we need not go into the details of that decision as it merely follows the earlier decisions already referred to in this order. The departmental representative on this point has mainly relied on the decision of the Supreme Court in the case of Cambay Electric Supply Industrial Co. Ltd. (supra), to which a reference has already been made. He submitted that the plea of the assessee that gross profit should be considered as profits and gains of business  is not  acceptable  on  any principle and he further submitted that the profits  and gains  should  always be as   computed according to the provisions of the Act.\n<\/p>\n<p>4.  In this case, as already stated above,  we have   to determine the scope of the   words  &#8216;the  whole of the amount of profits and gains of business attributable  to  any one  or more of such activities&#8217;, which are mentioned in Section 80P(2). Sub-section (1) of Section 80P provides that the   income in question,  which is  entitled to be deducted, should be included in the gross total income of the co-operative   society. What is included in the gross total   income  is a particular nature of income and what is to be deducted is given only in Sub-section (2). Now the question for consideration is as to what has  to  be deducted  in the case of such a co-operative society, which is engaged in the marketing of the agricultural produce of its members. The plea advanced by the assessee is that,   it should be the gross profit, i.e., the profit before  allowance  of any expenses which are normally debited  in the profit  and loss  account as against the trading account. On the other hand, the stand of the department is that   whatever is included in the gross total income  and is   in the nature of income from business in the marketing of agricultural produce of its members, the same should be deducted. The revenue also emphasises the words &#8216;the whole of the amount of profits and gains of business&#8217;.   In the present case, there is no dispute as to what is attributable to this particular activity. The dispute is on the   question  of principle. We may now proceed   to consider the correctness of the claim of the assessee.\n<\/p>\n<p>5.  As the section speaks of &#8216;the amount of profits and gains  of business&#8217;, we have to see as to v\/hat is the   meaning of these words. There is no definition of these terms in  the Act  and  we have, therefore, to consider the import of these terms by looking to  the common  usage as well as in a commercial sense. When we speak of profits  and gains of a business, we always speak of net profit and not of gross   profit. The gross profit is arrived at before  considering the  legitimate   business expenses which the person earning the income has to incur in order to carry on that business and to earn the profit. Only what remains after considering such legitimate business expenses,  can  be considered as profits   and gains. Profits and gains are the resultant from the  carrying on of a business or exercise of a profession  and  this expression cannot  be  used for any other head of income. The other section where this expression finds place is Section 28 of the Act. This  section deals with  profits and gains of business or profession and they must be understood   in their  natural and proper sense as referring to profits  and   gains  ascertained   on  ordinary principles of commercial trading. The profits or   gains  of a  trade or business are the surplus by   which the receipts  from the trade or business exceed the expenditure necessary  for the purpose  of earning such profits or gains. &#8216;Profit&#8217;  implies  a   comparison  between the  state   of a business at two specific dates usually separated by an interval  of a year. This expression means the net profits of a business after deducting the necessary outgoings without which those proceeds could not be earned.\n<\/p>\n<p>6.  While this is the normal position,  the Act   has provided for certain deductions and allowances to which reference has been made in Section 29 of the Act. There are also various provisions allowing weighted deductions and allowances like development rebate,  investment  allowance,   etc.,  in order to encourage one activity or the other. On the other hand, there are provisions disallowing certain expenses or expenses of a particular nature to certain extent. For the purpose  of levying income-tax,   these provisions have to be taken into consideration and the taxable income or   loss has to be determined. Besides what is provided in the various sections, there   can be certain allowances under Section  28  itself which may be in the nature of a business loss or a trading loss.\n<\/p>\n<p>7.  Now we have to determine   whether profits and gains of a business for the purposes  of Section  80P  should  be taken as profits and gains in a commercial  sense or it  should  be   only gross profit without taking into consideration any expenses or, on the other hand, it can be only the profit arrived at according to the provisions of the Act. In our opinion, it cannot be the gross profit of a trade  as that   would create anomalous situation and in any sense, gross profit could not be considered as profits  and gains of a business. There can be cases where there is a gross profit after taking into consideration the purchase  and  sale of a   commodity and yet there is a loss in the business as the  assessee  has   to incur certain expenses in order to carry on that business. The plea  of the learned Counsel for the assessee that profits and gains should be taken as   gross profit has, therefore, to be rejected.\n<\/p>\n<p>8.  The Commissioner (Appeals), on the   other hand, has held that profits and gains  should have the same  meaning as the profits and gains as computed according to the provisions of the Act. For this, he has   mainly relied on the decision of the Supreme Court in the case of Cambay Electric Supply Industrial Co. Ltd.  (supra).   If we  consider that decision of the Supreme Court, we find that it was decided  on the basis   of the language of Section 80E, as it stood at the relevant time. That section spoke of total income as computed in accordance   with the   other provisions of the Act. Their Lordships had  to  decide  as to whether for determining the profits and gains  attributable to  the  business  of generation  or distribution of electricity, profit under Section 41(2) of the   Act should be considered or not. Their Lordships held that such profit  has to be taken into consideration as it was attributable to the business of generation  or distribution of electricity. Their Lordships had  also  held that the  profits can also be ascertained  after  adjusting   the carry forward  of losses of that business. This decision, in our opinion, cannot be invoked to interpret the expression &#8216;profits and gains of business&#8217; as profit computed  under the provisions of the Act, as there are certain deductions and disallowances which are specially allowed under the provisions of the Act but are not otherwise taken for determining the profits of a business in a commercial sense. We are, therefore, of the view that for ascertaining the amount of profits and gains of business attributable to the marketing of agricultural produce of the members of the society, we must first consider all the business expenses which have been incurred by the assessee for earning such profit and such deduction would also include normal depreciation which is allowed even under the general principles of accountancy. We do not have the complete details of the break up of the deductions and we, therefore, cannot indicate as to how much deduction should actually be allowed in this case. We would, therefore, direct the ITO to deduct the profits and gains arrived at on the basis of principles laid down above.\n<\/p>\n<p>9. Before parting with this ground, we may refer to certain arguments advanced before us with reference to the provisions of Section 80AB of the Act. This provision was inserted by the Finance (No. 2) Act, 1980, and came into force on 1-4-1981. As a result of this provision, deductions under Sections 80HH to 80TT of the Act (except Section 80M) should be computed with reference to the net income under the respective sections which had formed part of the gross total income. This net income has to be computed in accordance with the provisions of the Act. Though this provision is effective from the assessment year 1981-82, the departmental representative submitted that this was merely clarifying the intention and the same position should hold good for the earlier years as well. On the other hand, the learned Counsel for the assessee submitted that the income could be taken in accordance with the provisions of this Act, only from the assessment year 1981-82 and not for earlier years. We are of the view that by giving effect to this provision from 1-4-1981 the Legislature has not extended this provision to the earlier years. Therefore, for the year under consideration, we will have to consider the other provisions and the requirements of law. That, however, does not mean that gross profit should be considered as profits and gains of business. As already discussed, that expression has to be interpreted in its common commercial sense and only such profits and gains would be entitled to deduction under Section 80P.\n<\/p>\n<p>10 to 19. [These paras are not reproduced here as they involve minor issues.)<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Income Tax Appellate Tribunal &#8211; Delhi National Agricultural &#8230; vs Inspecting Assistant &#8230; on 13 August, 1984 Equivalent citations: 1985 11 ITD 165 Delhi Bench: K Srivastava, S Mehra ORDER K.C. Srivastava, Accountant Member 1. This appeal by the assessee is directed against the order of the Commissioner (Appeals) and relates to the assessment year [&hellip;]<\/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":[1],"tags":[],"class_list":["post-56875","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>National Agricultural ... vs Inspecting Assistant ... on 13 August, 1984 - Free Judgements of Supreme Court &amp; 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\/national-agricultural-vs-inspecting-assistant-on-13-august-1984\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"National Agricultural ... vs Inspecting Assistant ... on 13 August, 1984 - Free Judgements of Supreme Court &amp; 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