JUDGMENT

 This ap

eal is preferred against the judgment of the Gauhati High Court answering the question referred to it against the assessee. The question referred is :

"Whether on the facts and in the circumstances of the case, the assessee i.e., Assam Co-operative Apex Marketing Society Ltd., is entitled to exemption under S. 8 1 (1)(c) in respect of their income arising out of procurement of paddy and other agriculture produce?"

2. The assessment year concerned herein is 1962-63, the first assessment year under the Income-tax Act, 1961. During the accounting year relevant to the said assessment year, the appellant. The Assam Co-operative Apex Marketing Society Ltd., Assam was appointed as the procuring agent for paddy by the Government under a scheme evolved by the Government of Assam and contained in its proceeding dated 23rd November, 1962. The assessee is a society registered under the Assam Co-operative Societies Act, 1949. The objects of the Society are:

" (i) to arrange for the sale of produce of the members of affiliated societies and other members to the best advantage.

(ii) to purchase and sell agricultural produce and farm and farmers requisites including seeds, manures, fertilizers and machinery etc.

(iii) to act as agent of members for the disposal of their produce; and

(iv) to act as a central purchasing agency for agricultural as well as Consumers Society and for other members. The membership of the assessee society is divided into three classes as, follows:-

(a) A-Class consisting of co-operative institutions,

(b) B-Class consisting of individual cultivators and sympathisers; .

(c) C-Class consisting of traders commission agent etc.

(d) The State Government."

3. There are various categories of Societies in the State of Assam. We are concerned with two such categories i.e., Village Service Co-operative Societies and Primary Marketing Societies. The assessee, of course, is at the apex. The Village Service Co-operative Societies are at the base of the pyramid. Their membership consists of agriculturists. These Village Societies are the members of the Primary Marketing Societies. The Primary Marketing Societies in turn are members of the assessee society. It does not appear that any agriculturist as such is member of the assessee society.

4. The system of procurement was that the Village Service Co-operative Societies procured agricultural produce from their respective members at the prescribed price and made it over to the Primary Marketing Society. The Primary Marketing Society in turn made over the same to the assessee society. In lieu of this procuring activity, the assessee society was being paid remuneration at the rate of Re. 1/ - per maund. This one rupee commission was divided between the three co-operative societies. The apex society took 19 paise, the Village Service Co-operative Society was entitled to 19 paise and the remaining 62 paise went to the Primary Marketing Society.

5. In the assessment proceedings, the assessee claimed exemption of its income from the said activity under S. 81(i)(c), as it then stood. This plea was negatived by the Income-tax Officer but on appeal, the Appellate Assistant Commissioner agreed with the assessee. The revenue went up in appeal to the Tribunal. The appeal was allowed, whereupon the assessee obtained the reference aforesaid.

6. Section 81(i) read thus:

"81. Income of co-operative societies - Income-tax shall not be payable by a co-operative society -

(i) in respect of the profits and gains of business carried on by it, if it is

(a) a society engaged in carrying on the business of banking or providing credit facilities to its members; or

(b) a society engaged in a cottage industry; or

(c) a society engaged in the marketing of the agricultural produce of its members; or

(d) a society engaged in the purchase of agricultural implements, seeds, livestock or other articles intended for agriculture for the purpose of supplying them to its members; or

(e) a society engaged in the processing