Income-tax---

----Reference---Cooperative society---Special .deduction---Profit from purchase and supply of fertilizers to members- --Special deduction whether allowable on gross profits after deduction of proportionate expenses-- Question of law---Indian Income Tax Act, 1961, Ss.80-P & 256.

Held, that the question whether, on the facts and in the circumstances of the case, exemption in respect of income from the purchase and supply of fertilizers by the assessee-society to its members is allowable on the gross profits after deducting proportionate expenses under section 80-P(2)(a)(iv) of the Income Tax Act, 1961, was a question of law to be referred to the High Court.

Sabarkantha Zilla Kharid Vechan Sangh Ltd. v. CIT (1993) 203 ITR 1027 (SC) ref.

R. P. Sawhney, Senior Advocate with Sanjay Goyal for Petitioner.

Nemo for Respondent.

JUDGMENT

N.K. AGRAWAL, J.---This is a petition under section 256(2) of the Income Tax Act, 1961 (for short "the Act"), by the Commissioner of Income-tax to the Appellate Tribunal, Delhi, to refer, the following question of law to this Court for opinion:

"Whether, on the facts and in the circumstances of the case, the income-tax Appellate Tribunal was right in law in allowing the deduction under S.80-P(2)(a)(iv) of the Act, on the gross profit from sale of fertilizers to its members?" .

The assessee was a cooperative marketing society and derived income from the sale of fertilizers, sugar, etc. While making the assessment for the assessment year 1981-82, the Assessing Officer reduced the amount claimed by the assessee-society as exempt income earned from the supply of fertilizers to its members. Income from the purchase of fertilizers for the purpose of supplying the same to the members of the society was exempted under section 80-P(2)(a)(iv) of the Act. Such income was shown by -the assessee at Rs.1,89,296 on the total sale amounting to Rs.57 lakhs made to the members. The Assessing Officer took the view that the entire gross income earned from the purchase and supply of fertilizers was not exempt from the payment of income-tax but the proportionate expenses attributable to the exempt sales and incurred for earning such income should be deducted from the gross income. The proportionate expenses were worked out at' Rs.77,300. The Assessing Officer reduced the amount of the gross income by the aforesaid amount of expenses and granted exemption of net income of Rs.1,11, 996.

The Commissioner of Income-tax upheld the assessment order but the Tribunal agreeing with the assessee's plea allowed exemption on the gross income without deducting the expenses therefrom.

Mr. R.P. Sawhney, learned senior counsel, has argued that it is the net income which is exempt from tax in the light of the provision of section 80-P(2)(a)(iv) of the Act. Reliance is placed on a decision of the Supreme Court in Sabarkantha Zilla Kharid Vechan Sangh Ltd. v. CIT (1993) 203 ITR 1027.

The Tribunal is directed to refer the following question of law to this Court for opinion:

"Whether, on the facts and in the circumstances of the case, exemption in respect of income from the purchase and supply of fertilizers by the assessee-society to its members is allowable on the gross profit after deducting proportionate expenses under section 80 P(2)(a)(iv) of the Income-tax Act?"

M.B.A./4094/FCOrder accordingly.