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Income Tax Appellate Tribunal, CUTTACK BENCH CUTTACK
Before: SHRI GEORGE MATHAN & SHRI MANISH AGARWAL
O R D E R आदेश आदेश Per Bench : This is an appeal filed by the assessee against the order of the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 12.01.2024, passed in Appeal No.NFAC/2010-11/10108602 vide DIN & Order No.ITBA/NFAC/S/250/2023-24/1059685666(1) for the assessment year 2011-2012, on the following grounds of appeal :-
1. On the facts and in the circumstances of the case, the Ld. CIT(Appeals) is not justified in dismissing the ground raised by the appellant with regard to denial of adequate opportunity by the AO while making huge additions in the assessment order.
2. On the facts and in the circumstances of the case, the Ld CTT(Appeals) has erred in law in confirming the huge addition of Rs. 1,88,71,000 made by the AO under the head "unsecured loan creditors". The Ld CIT(Appeals) is not correct in law and facts not to consider the evidences submitted before him to show that the addition of Rs. 1,88,71,000 made under the head" unsecured loan creditors" actually represent advances received from buyers for sale and are properly recorded as such in the books of the appellant. On the facts and in the circumstances of the case, the Ld CIT (Appeals)should have examined the details, documents and copies of accounts produced before him by the appellant or got them examined by the AO before confirming the addition of Rs 1,88,71,000. The Ld CIT(Appeals) has erred in law by 2 not giving an opportunity of hearing to the appellant though prayed for in the written submission filed before him.
3. The Ld CIT(Appeals) is not correct, on the facts and in the circumstances of the case of the appellant, to confirm the following disallowances made by the AO: I) Rs 50,000/- from Vehicle Running and Maintenance Expenses II) Rs 70,500/- from Tours and Travel III) Rs 35,509/- from printing and stationery.
2. At the outset, ld. AR did not press grounds No.1 & 3 for which he has endorsed to it in the memo of appeal. Accordingly, grounds No.1 & 3 are dismissed as not pressed.
3. Ground No.2 is relating to addition of Rs.1,88,71,000/- made by the AO and confirmed by the ld. CIT(A) treating the loans as bogus unexplained creditors.
Brief facts of the case are that the assessee is a private limited company engaged in the business of retail trading of agricultural seeds.
The return of income was filed on 29.03.2013 declaring total income at Rs.6,49,226/- and the assessment was completed determining total income at Rs.2,02,80,110/- by making various additions. This is second round of appeal as in first round the ld. CIT(A) decided the appeal ex- parte and the said appeal was sent back by this bench of the Tribunal for reconsideration to the file of ld. CIT(A). In second round, the ld. CIT(A) has dismissed all the ground taken, thus, the present appeal is filed by the assessee before us.
Before us, ld. AR of the assessee submitted that during the year the assessee had received advances against the supply of goods from 10 parties totaling to Rs.1,88,71,000/-. It was submitted that in the audited financial statements these amounts were shown under the head 3 “unsecured loans”, however, these are business advances received in the normal course of business of purchases and sales of agricultural seeds.
In order to show better current ratio, the same were classified under the head “unsecured loans” for the purpose of presentation of financial statements before the bank, however, the real nature of these accounts were of trade advances. It was further submitted that the assessee in some cases has supplied the goods to these parties in subsequent years and in some cases due to dispute in rates, goods could not be supplied and the advances were refunded to the respective parties. To this, ld. AR drew our attention to the paper book page 52 containing detailed statement of receipt and refund/adjustment against these advances, which is as under :-
4 6. Ld. AR further drew our attention to the paper book pages 53 to 74, which are the copies of ledger accounts as appearing in the books of account of the assessee company of all these 10 parties in support of the contention that these are the trade creditors with whom the transactions on regular basis were carried out and in some case goods were supplied against the outstanding balance in subsequent years which were alleged as bogus by the AO. He, therefore, submitted that all the parties are trade creditors and during the course of assessment proceedings books of accounts were examined by the AO, however, without appreciating the true nature of these accounts had made the addition. Accordingly, ld. AR prayed for deletion of addition so made by the ld. AO and confirmed by the ld. CIT(A).
Apart from the above, ld. AR has also filed his written submissions, which reads as under :-
3. Ground No.2: Addition on account of "unexplained unsecured loan creditors". 3.2. The AO noticed that the appellant had shown an amount of Rs. 1.88.71,000/-under the head unsecured loans in the audited balance sheet. He asked the appellant to produce the details thereof including full postal addresses which were duly furnished. The amount was received from 10 parties who were in fact buyers of the appellant. The AO in the course of assessment proceeding called for information under section 133(6) from all of them vide his letters dated 20.01.2014. It is significant to mention here that confirmations were received from all the 10 parties and examined by the AO. In the first para of page 3 of the Assessment Order (Page-5 of the paper book) the AO has observed as under in this regard. "For further revelation, information was sought for u/s 133(6) of the I.T Act from the above mentioned parties vide this office letter(s) dated 20.01.2014. In response confirmation(s) were received from the aforesaid creditors which are examined. However, no reply confirming the unsecured loan given to the assessee company has been received from the above mentioned parties so far."
5 The AO has further observed in the next paragraph that, "the A/R of the assessee could not produce supporting material evidences in support of such for which the above mentioned sundry creditors are treated as bogus..."
It is clear from the above that all the creditors have sent confirmations of their transactions with the appellant and also confirmed the debit balances outstanding in the name of the appellant as at the end of the relevant previous year i.e, as on 31.03.2011. It is not understood what more information the AO required from them or from the appellant to verify the genuineness of the impugned credit liability considered by the AO as unexplained and added to the total income of the Appellant. The AO himself has mentioned at paragraph 2 of page 1 of the Assessment Order (page-3 of paper book) that the Appellant has produced all its books of account including bank statements in the course of the assessment proceeding and the same were examined by the AO before finalizing the Assessment Order. It may be mentioned here that, the entire amount of Rs. 1,88,71,000/- received from 10 parties were received through Banking channels and duly reflected in the bank statements produced before the AO. All these parties were buyers of the assessee. Hence what more "supporting material evidences" were required by the AO to prove the genuineness of the credit liability appearing in the books of account as on 31.03.2011 ?
The actual fact is that, as was pointed out before the LD CIT(Appeals), all the said 10 parties used to give advance for purchase of seeds to the appellant and at the end of the relevant previous year the total of such advances stood at Rs. 1,88,71,000/-. The same was classified under the head "unsecured loan" instead of current liabilities for the sake of availing higher loan facility from banks. In any case the same represented liability which was genuine having been received from identified parties and through banking channels. Hence the addition made by the AO is un- justified and illegal, and is liable to be deleted. It may be mentioned here, as was also pointed out to the Ld CIT(Appeals) in the written submission filed by the appellant before him, that out of the above 10 parties the advances received from 5 of them (SI No. 6 to 10 of Annexture-3 at page No-52 of the paper book) were adjusted against sales during the subsequent financial year 2011-12. So far as parties at Si No. 1 to 5 of Annexture-3 are concerned the advance received from them were returned/ refunded through RTGS during subsequent financial years 2011-12 and 2013-14 since there were some dispute relating to rates of the seeds with them. Individual ledger accounts of all the parties for the subsequent financial years are enclosed as annextre-2 of the paper books (pages-64 to 74). Copies of Bank Statements of SBI for the financial year 2010-11 (impugned assessment year) are enclosed at pages 75 to 113 of the paper book evidencing the fact that the entire amount of Rs. 188.71.000/- was received through Bank by way of RTGS/NEFT from the parties. That the amount received 6 from parties at sl no. 1 to 5 of Annexure 3 was refunded to them by RTGS/ NEFT may be seen from the copies of the bank statements at pages-114 to 120 of the paper book It may be mentioned here that all the above documents and details were filed before the Ld CIT(Appeals) which have not been taken into due consideration. 3.3: The Ld CIT (Appeals) has confirmed the addition of Rs 1.88.71,000/- made by the AO in the Assessment giving the following reasons | Page 13 of the Order of CIT (Appeals) al page 28 of the paper book)
The Ld CIT (Appeals) has mentioned that no reply confirming the unsecured loan was received by the AO in response to his requisition u/s 133(6) This observation of the Ld CIT(Appeals) is not correct as pointed out above. As mentioned by the AO at page-3 of the Assessment Order (Page-5 of the paper book) confirmations were received from all the so-called loan creditors and the same were examined. Perhaps the AO was not satisfied with the confirmations since in the same the amount was not mentioned as unsecured loan and therefore he considered the same as unexplained. Such an action on the part of the AO is arbitrary and high-handed. 4) The Ld CIT(Appeals) has mentioned in his order that the appellant did not submit any document to prove that the impugned amount was advance for purchase and also document to show that there was some dispute as regards rates with the parties to whom the purchase advance received was returned back. The Ld CIT (Appeals) has grossly erred in stating that no document was produced before him in respect of purchase advance received from the 10 parties (Annexture-3 at page-52 of paper book). Individual ledger accounts of all the parties for the relevant previous year (FY- 2010-11) were filed before him which clearly reveal that the amount received was advance for purchase of seeds. There can also be no dispute in the fact that all the concerned 10 parties were buyers of the appellant. The books of account of the appellant clearly reveal receipt of advance from buyers through banking channels. Even though classified as unsecured loan, the amount received was in the nature of liability. Only because it was not classified as "advance from buyers". the appellant should not suffer such a huge addition. The Ld CIT(Appeals) asked the appellant to produce documentary evidence to prove its contention that there was rate dispute with some of the buyers for which the advance given by them was refunded in the subsequent years. The appellant could not produce any documentary evidences to prove the rate dispute with some of its buyers and the Ld CIT(Appeals) has given this as one of the grounds to confirm the addition. Here also the Ld CIT(Appeals) is not correct and justified. Since more than a decade has passed since the financial year 2010-11, it is not possible for the appellant to trace out any communication with the parties in this 7 regard. Moreover, it's normal in the line of assesee's business that many transactions take place on the basis of purely oral communications. However when all other documents and books of account clearly show receipt of advance from the buyers, adjustment of the same by sale of seeds to 5 of them and refund of the same to the rest 5 of them, the act of the Ld CIT(Appeals) to confirm the addition on this ground is un-justified, arbitrary and not sustainable in the eye of law. The Ld CIT(Appeals) while confirming the impugned addition has stated that if the advance from buyers was classified wrongly as unsecured loan the same should have been informed to the AO. It is apparent from the assessment order that the AO, though made the addition under the caption "unexplained unsecured loan creditors", has made the addition as bogus sundry creditors at the end. This shows that the AO was aware of the fact that the impugned amount was not unsecured loan but "bogus sundry creditors" representing advance from buyers. The contention of the Ld CIT(Appeals) is that since after showing the amount in the balance sheet duly audited by a chartered accountant as unsecured loan, the appellant is claiming that the said advance was wrongly classified as unsecured loan though it was actually advance receipt from buyers. Though the reason for showing the amount as unsecured loan has been explained to the Ld CIT(Appeals) as "for maintenance of Current Ratio as per bank norms" to avail higher credit limits, he has rejected the same without any valid reasons and merely on suspicion presumption and assumption, iv) The observation of Ld CIT(Appeals) that the appellant has failed to prove the said amount to be advance from customers is not based on facts, materials on record and valid reasons v) The Ld CIT(Appeals) has not given a personal opportunity of hearing to the appellant though specifically requested for in the written submission filed by the appellant before him. In view of the above submission, the addition of Rs.1,88,71,000/- may kindly be deleted and justice rendered to the appellant.
On the other hand, ld. Sr. DR vehemently supported the orders of the lower authorities and submitted that the assessee has failed to controvert the findings of the AO as well as the ld. CIT(A). He further submitted that the assessee himself has categorized these accounts as unsecured loans and later claimed them as business advances without any proper explanation. He further submitted that no documents 8 whatsoever were filed with regard to rate disputes as has been claimed.
According to ld. Sr. DR the ledger accounts also depicts these are nothing but loan accounts which the assessee tried to justify as the business advances without any supporting material. He, therefore, prayed for the confirmation of the additions so made. In this regard, ld. Sr. DR has also filed his written submissions, which reads as under :-
Written submissions
Assessee could not produce any document to prove that amount of payment was advance for purchase and dispute of rate of purchase (Para 6.2 of CIT(A).
In duly audited balance sheet, amount shown unsecured loans and now assesee is taking difference view (para 6.2 of CIT (A)
Even otherwise as per the submission of the assesse as per paper book page 52 and ludgres copies of accounts of parties at page 53 to 74, Amount of Rs 1,56,24,000 found as unexplained credits /loan amount received and paid back through bank and balance of Rs 32,47,000/- (shown adjusted against sales) has also been found as unexplained credits under section 6 when:
Sources and genuineness of s of Rs 1,56,24,000/- received and paid back(unsecured loan/credits) is not explained and neither balance of Rs 32,47,000/- (claimed as advances against sales) has been explained reasonably and found to be afterthought to give colour of unexplained unsecured loans (as shown as per balance sheet) as advance against purchases as under. Party Amount of loan Remarks Royal fertileser 1,30,00,000/- i)As per ledger copy of account for the financial year 2011-12 andseed (page 67 of the paper book) no sales made against this loan amount which is paid back to party (52 of paper book) and is found not against any purchases as claimed. (II) Loan/credits amount of 1.30 crore became outstanding on 31-3-2011 by crediting party account with amount of Rs 5,00,23,461/-and debiting to agri graduate seed development organization (page 60 of paper book sources and geniuses of Rs 5,00,23,461/- (out of which Rs 1.30 crore became outstanding) is not explained with evidences and hence sources and geniuses of this transaction amount of Rs5,00,23,461/- is not explained with any evidences and found as unexplained credits. Susant kumar 4,00,000/- (i) As per ledger copy of account loan amount became sahoo outstanding on 31-3-2011 by crediting party account with amount of Rs 441225/- and debiting shubsri trading co which is not explained with evidences (page 62 of paper book found as unexplained credits Narayan parsad 3,95,000/- As per copy of account, No sales made during the year and mohanti only amount received on 26-7-2010 and paid on 9-11-2013 (afer a long period of 3 and half year) and not submitted and explained before CIT(A) and neither reason for dispute over rate with party furnished before him which is found not genuine and only after though and non genuine book entry and found as unexplained credits Padmaochan 3,99,000/- As per copy of account, No sales made during the year and Mohanti only amount received on 26-7-2010 and paid on 7-11-2013 (afer a long period of 3 and half year) and not submitted and 9 explained before CIT (A) and neither reason for dispute over rate with party furnished before him which is found not genuine and only after though and non genuine book entry. And found as unexplained credits. As per ledger copy of account, No sales made during the year Jaydev panda 6,00,000/- and only amount received on 4-8-2010 and 5-8-2010 and paid on 28-10-2013 and 7- 11-2013 (afer a long period of 3 years) which is found not genuine and only after though and non genuine book entry. Sukhdev Sahoo 3,98,000/- As per copy of account, No sales made during the year and only amount received on 26-7-2010 and sales shown on 2-5-2011 after a long period of 6 months and not submitted and explained before CIT(A) and neither reason for dispute over1 rate with party furnished before him which is found not genuine and only after though and non-genuine book entry- Bikram Kumar 4,49,000/- As per ledger copy of account, No sales made during Bastia the year and only amount received on 26-7-2010 and 31-7 2010 and sales (exempt sale ) shown on 2-5- 2011 (after a long period of 10 months ) which is found not genuine and only after though and nor, genuine book entry. Sawantra Sahoo 12,30,000/- As per ledger copy of account loan amount became outstanding on 31-3-2011 by crediting party account with amount of RU,12,13,8SS/-- and debiting to shubsri trading to which is not explained with evidences 63 of paper book). Nagarjuna seeds 10,00,000/- As per copy of account. No sales made during the and fertilizers year and only amount received on 4-12-2010 and sales ^hown made on 1-5-2011 later a long period of 5 months } and not submitted and explained before CiT(A) and neither reason for dispute over rate with party furnished before him which is found not genuine and only after though and non genuine book entry, Mahanasnda 10,00,000/- As per ledger copy of account loan amount became seeds outstanding on 31.03.2011 by crediting party account with amount of Rs.33630038/- and debiting to VKR seeds P. which is not explained with evidence. (Page 55 of paper book) 4. Accordingly above amount is found as unexplained credits received, sources and genuineness of which is not explained and not proved with any evidences as advances against purchases and rightly confirmed by CIT (A) by finding not any advance against purchases
5. Accordingly appeal of the assesses deserves to be dismissed.
We have considered the rival submissions and perused the material available on record. Admittedly, the amounts involved are initially disclosed as unsecured loans by the assessee and the same were also verified by the auditor as is evident from the financial accounts. During the course of assessment proceedings, it was submitted by the assessee that these are the business advances for which it was claimed that the goods for supply to these parties either in preceding years or in subsequent 10 years. Since the assessee has changed its stand about the nature of these accounts, first we have to determine the true nature i.e. whether these are loan creditors or are trade creditors. For this, we refer to the copy of ledger accounts filed by the assessee. On perusal of the copies of the ledger accounts, we find that out of total ten parties, following four parties are not having any business transactions with the assessee of purchases/sales of agricultural seeds in this year or in subsequent year :-
Sl.No. Name of the loan creditors Amount (Rs.) 1. Padmalochan Mohanty 3,99,000/- 2. Narayan Prasad Mohanty 3,95,000/- 3. Swatantra Sahu 12,30,000/- 4. Jayadev Panda 6,00,000/- Rather during the year under appeal, there are credit entries through bank which was paid in subsequent year and except these two transactions of receipt of the amount and repayment of the same, there was no other transaction carried out between the parties. Thus, it cannot be said that these parties are trade creditors with whom the assessee is having regular business transaction these could be categorized as loan creditors.
The claim of the assessee that there were certain business transaction in the preceding years is without any supporting evidence thus could not be accepted. The amount received from these four parties are in the nature of loans. For loan creditors, burden is on the assessee to prove the identity and creditworthiness of the lender. Since all receipts are through banking channel, genuineness could not be doubted. In the instant case, the assessee has failed to discharge the burden casted upon it as the creditworthiness of these parties could not be established. During the course of assessment proceedings the AO has issued summons 11 u/s.133(6) of the Act, however, the same were not complied with. During the course of hearing, we call for the assessment records and it was found that only two parties out of ten had responded. Thus, the creditworthiness of these parties remained unsubstantiated by the assessee.
With regard to the remaining six parties, from the perusal of their copies of ledger accounts as available in the paper book, we find that besides the transaction of receipt of advances alleged as bogus, there were other transactions of purchase and sales and also in subsequent year the amounts outstanding at the end of the previous year relevant to the year under appeal, were settled by way of sales made to these parties. This being so, we are in agreement with the argument of the ld. AR to the extent of these six parties of whom the total amount outstanding as on 31.03.2011 comes to Rs.1,62,47,000/- which has been added in the hands of the assessee as bogus are the trade creditors. The amounts received from them is normal business transaction and could not be added in the hands of the assessee. The remaining amount of Rs.26,24,000/- represents the unsecured loans for which the assessee has failed to establish their creditworthiness as well as no confirmation nor any other evidence was filed, therefore, the addition to this extent is sustained. Thus, the assessee gets relief of Rs.1,62,47,000/- and this ground of appeal being ground No.2 is partly allowed.
12 11. In the result, appeal of the assessee is partly allowed.