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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI V. DURGA RAO& SHRI D.S. SUNDER SINGH
आदेश /O R D E R
PER D.S. SUNDER SINGH, Accountant Member: These appeals are filed by the revenue and the assessee against the order of the Commissioner of Income Tax(Appeals) [CIT(A)], Vijayawada and vide ITA No.594/CIT(A)/VJA/2013-14 dated 30.08.2016 for the assessment year 2011-12. I.T.A.462/Viz/2016 – Revenue’s Appeal 2. All the grounds of appeal are related to the disallowance made by the Assessing Officer (AO) u/s 40(a)(ia) of the Income Tax Act, 1961 (hereinafter called as ‘Act’). During the assessment proceedings, the AO found that the assessee has made the payment of Rs.2,74,49,637/- towards interest to Kotak Mahindra Bank. As per the observations of the AO, Kotak Mahindra Bank has sanctioned loans to the farmers under agricultural loans against the individual name and the said loan was directly disbursed to the assessee company under tie up arrangement with the farmers. The AO’s contention is that since the bank has sanctioned the loans to the individuals, farmers, the payment of interest has to be treated as payment to the individuals farmers, but not directly to the bank. The AO further observed that there was no agreement with the individuals, the assessee
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company and the bank for substantiating that the loan was sanctioned in tie up arrangement to the assessee company. Therefore, the AO held that the payment of interest to bank required to be treated as payment to individuals and the assessee has to deduct tax at source but not deducted the tax per section194A, thereby violated the provisions of section 40(a)(ia) of the Act and accordingly disallowed the sum of Rs.2,74,49,637/-.
Aggrieved by the order of the AO, the assessee went on appeal before the CIT(A) and the Ld.CIT(A) deleted the addition placing reliance on the decision of the Special Bench of ITAT Vizag in the case of Merilyn Shipping & Transports Vs. Addl.CIT [2012] 136 ITD 23/20 taxmann.com 244 (Vishakhapatnam) dated 09.04.2012.
Aggrieved by the order of the Ld.CIT(A), the revenue carried the matter to the Tribunal. Appearing for the revenue, the Ld.DR argued that Kotak Mahindra Bank has sanctioned loans to the farmers in a tie up arrangement and it is the obligation on the part of the assessee to make the payment of interest to the bank through farmers and required to deduct tax at source. Since the assessee failed to deduct the tax at source, the AO has rightly made the addition u/s 40(a)(ia) of the act. The D.R further
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submitted that the assessee failed to produce any evidence to show that the loan was granted to the assessee and there was no agreement whatsoever. The assessee’s contention of repayment of loan, utilization of loan by the company and its entry in the books of accounts is not acceptable because the assessee does not have any agreement with the individuals and the bank for substantiating tie up arrangement, thus, argued that the first recipient of the loan was the individual that too directly from the bank but not the assessee company. Therefore, payment of interest to the bank directly is not acceptable and the assessee has to deduct the tax at source. Accordingly submitted that the order of the Ld.CIT(A) is to be set aside and the order of the AO is required to be upheld.
On the other hand, the Ld.AR submitted that the AO erred in considering that the Agri Loans availed from the Kotak Mahindra Bank as individual loans and the limits have been sanctioned for holding the stock and book debts. The company has mortgaged its assets for securing the repayment of the loan. 5.1. The Ld.A.R further submitted that the bank has sanctioned agri loans of Rs.20 crores and over draft limit of 5 crores by the Kotak Mahindra Bank. The overdraft limit of Rs.5 crore has been sanctioned to the company for
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meeting its working capital limits and the agricultural loans sanctioned are in the form of revolving commodity funding facility in the form of short term loan for holding the agricultural commodities and stocks in the cold storage. The loans have been sanctioned under a tie up arrangement of both the farmer and cold storage. The company and the trader, both are the principle creditors for the loan availed and the proceeds are directly disbursed to the company. The repayment of the principal and interest on the same was also made by the company by liquidating the book debts. The company has mortgaged its assets for securing the loan. Accordingly, submitted that in case of Agricultural loans, the company and the farmer both are treated as principal debtors of the bank and therefore the sanction of loan exclusively in the name of individual farmer and the company availing of the said loan from the farmers does not arise and it is a single transaction of multiple borrowers. The charges for loan availed by the company has been duly registered with the Registrar of companies. In view of the above, the Ld.AR submitted that since the interest was paid directly to the bank, there is no requirement of deduction of tax at source as per section 194A of the Act and hence requested to delete the addition made by the AO representing the interest payment of Rs.2,05,47,873/- on account of
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interest on farmer’s loans as it was directly paid to the bank and the question of deduction of TDS on the interest payment does not arise.
5.2. In respect of interest of Rs.69,01,764, the Ld.AR argued that the same was interest on working capital loan of the assessee company which was disallowed by the AO under the wrong impression, therefore requested to confirm the order of the Ld.CIT(A).
We have heard both the parties and perused the material placed on record. As per the Ld.CIT(A)’s order, the AO has disallowed a sum of Rs.2,74,49,637/- representing the interest payment made to Kotak Mahindra Bank u/s 40(a)(ia) of the Act. The Ld.CIT(A) has verified the balance sheet, profit and loss account and observed that the sum of Rs.2,74,49,637/- consists of the bank interest on agricultural loans representing a sum of Rs.2,05,47,873/- and interest on working capital for a sum of Rs.69,01,764/-, the assessee has taken two types of loans from Kotak Mahindra Bank i.e Overdraft facility of Rs.5 crores for working capital and agricultural loans of Rs.20 crores. The Ld.CIT(A) observed that there is no tie up arrangement with the farmers in respect of the overdraft facility, hence, the interest on overdraft is clearly allowable in the hands of the assessee. Though the department has filed the appeal against the order
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of the Ld.CIT(A), no evidence is brought on record to show that the interest of Rs.69,01,764 was not on working capital loan of 5 crores. Therefore, we do not see any reason to interfere with the order of the Ld.CIT(A) and the same is upheld. 6.1. The assessee has made payment of Rs.2,05,47,872/- to the Kotak Mahindra Bank. In this case as observed by the Ld.CIT(A) and as stated by the assessee that the assessee has taken agricultural loans of Rs.20 crores from Kotak Mahindra Bank as a tie up arrangements with farmers. The assessee company has mortgaged its assets and the book debts as a security for loans taken on tie up arrangement. As observed by the Ld.CIT(A), the entire loans was directly disbursed to the assessee company. The repayment of loan was also made by the assessee company by liquidating the debts. The charges of loan availed by the assessee also had been registered with the Registrar of Companies and declared in the financial statements. The assessee also produced the evidence before the Ld.CIT(A) to support that the agricultural loans sanctioned were in the form of revolving commodity funding facility in the form of capital loan for holding the agricultural commodities and stocks in the cold storage, to avail the facilities of cold storage. Since, the loans were sanctioned under tie up arrangement of both the farmer and the assessee and the entire
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agricultural loans were disbursed directly to the assessee, it has shown as loan funds in the assessee’s balance sheet. It is also not disputed that the assessee has made the direct payment to the bank and there was no payment made to the individual farmers. Farmers also did not dispute the payment made to the banks and thus there was an implied agreement of the farmers for payment of interest and loan directly to the bank. It is a fact that the loan was not utilized by the farmer and the entire loan was utilized by the assessee for cold storage plant and given securities to the bank. Therefore, there is an obligation on the part of the assessee to repay the loan to the bank. Accordingly the assessee made the payment to the bank and has discharged its liability / obligation. Since the payment was directly made to the bank on behalf of the farmers it should be construed as the payment made to the bank, but not to the individual farmers., the interest payment made to the bank does not attract the TDS as per section 194A of the Act. Accordingly, we uphold the order of the Ld.CIT(A) and hold that no disallowance is called for u/s 40(a)(ia) of the Act and dismiss the appeal of the revenue.
In the result, the appeal of the revenue is dismissed.
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I.T.A.No.480/Viz/2016 – Assessee’s Appeal 8. The assessee’s appeal is related to the addition of Rs.38,50,000/- made towards sundry creditors. The AO found that the assessee has shown the amount of Rs.38,50,000/- as liability to sundry creditor. The AO also sought confirmation from sundry creditors and the assessee replied that the sum of Rs.38,50,000/- was advance received from Sri K.Nagendra Kumar which was outstanding as on 31.03.2011 in connection with the trading activity which was subsequently adjusted in the year 2012-13 with the sale of agricultural commodities. The assessee also enclosed the copy of account statement for the subsequent year 2012-13. Since the party was not in touch with the assessee, the assessee could not furnish the confirmation letters. The AO made the addition for the assessee’s failure to prove the credit worthiness of the creditor and the genuineness of transaction.
Aggrieved by the order of the AO, the assessee went on appeal before the CIT(A) and the Ld.CIT(A) confirmed the addition since the assessee failed to submit the relevant supporting evidence. For ready reference, we extract relevant part of the order of the Ld.CIT(A) which reads as under : “5.1. The amount of Rsd.38.50 lakhs is claimed by appellant as advance amount received from Sri K.Nagendra Kumar, a trade creditor who is claimed
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to be not a loan creditor. On examination of schedule 7 of Balance Sheet, it is noted that a sum of Rs.10 lakh was shown as outstanding payable (under the head “Sundry Creditor) to Mr.Nagendra Kumar as on 31.03.2010 and a sum of Rs.38.50 lakhs is shown as outstanding payable as on 31.03.2011. 5.1.1 Appellant did not produce any evidence during the course of assessment proceedings as well as appeal proceedings regarding the purpose of the advance amount so claimed to have been received from Mr.K.Nagendra Kumar. Mr.K.Nagendra Kumar was not produced before Assessing Officer for verifying the claim of appellant. No confirmation letter or affidavit was also obtained and produced either before Assessing Officer or during appeal proceedings. It is not believable to accept the view of appellant that the alleged trade creditor Sri K.Nagendra Kumar who is claimed to have made advance payment of Rs.10 Iakh prior to 31.03.2010 waited for whole one year before he was supplied goods by appellant during F.Y.2011-12. No real trade creditor would make advance for supply of apples / potatoes / tamarind etc. and wait for more than one year for supply of the same.
5.1.2. Appellant did not produce any contemporaneous evidence for receipt of advance in the form of agreement, contract etc. with Mr.K.Nagendra Kumar or I.T. return copy of Mr.K.Nagendra Kumar. In my view, this is a ruse to explain the appellant's credits (investments) in his bank account made, i.e. Rs.19.50 lakh (Rs.9,75,000 + Rs.9,75,000) on 10.05.2010 and Rs.9,00,000/- on 27.08.2010, which was explained as trade credits.
5.1.3. The claim of appellant's AR in his submission dated 02.08.2016 that confirmation letter from a trade creditor after the lapse of three years from an unknown person is difficult as his address is not traceable and it is unable to collect respective account copy from trade creditor, indicates that there is no plausible and reasonable explanation from the appellant and the liability shown in the account is not a genuine trade credit. Copies of invoices in respect of sale of apples / potatoes / tamarind to Sri K.Nagendra Kumar were submitted during appeal proceedings for a sum of Rs.38.50 lakhs (sale during 14.04.2011 to 10.12.2011). However, much reliance cannot be placed on them as such copies are appellant's self vouchers / invoices and stock records were not produced to substantiate the claim of sale of apples / tamarind / potatoes. Hence, the claim of sale cannot be accepted as genuine.
5.1.4. Hence, I am of the view that appellant did not satisfactorily explain before Assessing Officer as well as during appeal proceedings with all relevant supporting evidence its claim of trade credit in respect of Rs.38.50 lakhs assessed by the Assessing Officer. Consequently addition of Rs.38.50 lakhs is confirmed.”
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Aggrieved by the order of the Ld.CIT(A), the assessee filed appeal before this Tribunal. During the appeal hearing, the Ld.AR argued that the assessee has received advance of Rs.10,00,000/- during the financial year 2009-10 and the balance amount of Rs.28,50,000/- during the financial year 2010-11. Therefore, submitted that without conceding, even if it is presumed that the addition required to be made, the amount received during the financial year 2010-11 relevant to the assessment year 2011-12 should be considered for addition but not the receipt related to the assessment year 2010-11. The Ld.AR further submitted that the assessee has received Rs.19,50,000/- on 10.05.2010 and Rs.9 lakhs on 27.08.2010 and all the payments were received through cheque. The entire amount of Rs.38,50,000/- was related to the advance against sales. Since the entire amount was received through cheque, the assessee did not insist for confirmations and subsequently the account was closed with the sales. The Ld.AR argued that the assessee has sold the material to the trade creditor and closed the account. Since the account was closed, there is no occasion for the assessee to approach the trade creditor and subsequently, the assessee could not collect the confirmation from the trade creditor. The Ld.AR argued that the sales were made to the trade creditors which were duly accounted in the sales in the subsequent year. The AO accepted the
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sales account which was inclusive of the sales made to the trade creditors. Therefore, argued that there is no reason to suspect the transaction and to make the addition representing the advance received leaving the sales made to the assessee. Accordingly requested to set aside the order of the Ld.CIT(A) and allow the appeal of the assessee.
Per contra, the Ld.DR supported the orders of the Ld.CIT(A).
We have heard both the parties and perused the material placed on record. In this case, the assessee has received a sum of Rs.10 lakhs which was outstanding as at the end of the year 31.03.2010 relevant to the assessment year 2010-11, but not 2011-12. As per section 68 of the Act, the AO required to make the addition in the year in which it was received but not in the subsequent assessment year. Therefore, the addition made representing the advances relating to the assessment year 2010-11 required to be deleted. Further in this case, the assessee has received Rs.38,50,000/- in aggregate upto assessment year 2011-12 which was outstanding as on 31.03.2011. The AO made the addition since the assessee failed to produce the evidence from the respective trade creditor. The Ld.CIT(A) confirmed the addition with a suspicion that no creditor would wait for such a long time. Though suspicion appears to be strong, it should
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not lead to conclusion without establishing the fact. In the instant case, the advances were received through cheques, but not in cash. The assessee submitted that the said outstanding was adjusted out the sale of potatoes, tamarind etc. in the subsequent assessment year and also produced the invoices before the Ld.CIT(A) for the period 14.04.2011 to 10.12.2011. No evidence was brought on record to show that the sales for the subsequent assessment year were not accepted by the AO or false. For a query from the bench the Ld.AR submitted that the sales were accepted by the AO in the subsequent year and there was no addition or relief was given to the extent of the sales made to the trade creditor. The receipt of advances from customers is a starting point and conclusion of transaction is the relevant sales. Therefore, receipt of advances required to be examined along with sales made by the assessee with stock register. Advances from customers, purchases, stock register and sales account required to be examined together to verify the genuineness of the advances. No transaction can be isolated since all the transactions are inter linked and depending on each other. The AO isolated the transaction of the advances received against the sales and at the same time, did not examine the genuineness of the sales made to the trade creditor which is part and parcel of the total turnover. There is no justification for making the addition of advances received from
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the customers without taking into consideration the respective sales. Having accepted the sales account, there is no case for making the addition of the same amount representing advances from the customers. The similar issue was considered by the coordinate bench of ITAT,Kolkata in the case of Dutta Automobiles (P) Ltd. Vs. ACIT (2016) 138 DTR 0361 (Kol)( (Trib) and held as under:
“4. We have heard rival submissions and gone through facts and circumstances of thecase. We find that the assessee is a private limited company started its business for AY 2008-09 as a dealer of Hero Honda motor cycle manufactured by Hero Motor Corporation Ltd. having distributorship for Durgapur and surrounding areas. Being a private limited company, assessee's accounts are audited under the provisions of Companies Act, 1956 as well as under the Income tax Act u/s. 44AB of the Act. The assessee is following mercantile system of accounting. All the purchases of assessee are supported by suppliers' invoices and tax invoices, which are issued to customers for sale of motor cycles. The assessee explained before us that in case of motor cycle dealership, the product being of high demand and supplies are not matching thereto particularly in case of Hero Honda Motor Cycle. Accordingly, purchasers gave advance for the goods chosen but not available in stock, for which advances are credited to "advance from customers account" and as and when particular product is available i.e. motor cycle, that is delivered after taking balance amount after adjusting earlier advance against full invoice price. According to assessee, such advances are mainly remained unadjusted for last 2/3 months round the year and accordingly, in the relevant financial year 2009-10 relevant to AY 2010-11, the balance as on 31.03.2010 was Rs.3,99,54,051/-, which is the subject matter of present appeal as added by AO and confirmed by CIT(A). According to assessee, the advance was received by the assessee against booking of a particular make of motor cycle, which is not immediately available. As and when the same is received from Hero Motor Corporation Ltd. the same is delivered to customers after adjusting advance against full invoice price. The AO called for details viz., (a) Name & full postal addresses of the person from whom advance was taken, (b) PAN of the person from whom advance was taken, (c) Voter Id. Card No. of the person from whom the advance was taken, (d) Chassis No. of the two wheeler supplied to the party, (e) Total price of the two wheeler (on road price) and (f) Amount received as advance from party with date.
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The Ld. Counsel for the assessee before us explained that the above particulars asked for by the AO like asking information under KYC norms, which is not compulsory in case of Sale of Goods Act i.e. for sale of motor cycles or scooters. Ld. Counsel for the assessee filed complete paper book consists of pages 1 to 213, wherein the relevant information at 51. No. 5 i.e. copies of money receipt issued to customers while booking and taking advance is given at pages 15 to 109, at Si. No. 6 party wise details to whom motor cycle was delivered against advance given at pages 110 to 130, at Sl. No. 7 copies of invoice issued to parties on sale of motor cycle and adjustment of advance at pages 131 to 145, at Si. No. 8 confirmation from few parties for deposit of advances at pages 146 to 187, at SI. No. 10 party wise and motor cycle wise advances as on 3 1.03.2010 at pages 193 to 212 and also at 51. No. 11 comparative chart of sales and advances from customers from FY 2007-08 to 2011-12. The last item i.e. comparative chart of sales and advances from customers is new evidence tiled before the Tribunal for the first time otherwise all the evidence were before AO as well as before CIT(A), but this comparative chart is only compilation of sales and purchases as well the advances. It was explained that name of the customers with relevant receipt no. issued on receiving advance and amount of advance receipt were given. Even the addresses of customers therein relevant tax/sales invoices, which were produced before the AO as well as before CIT(A), contains full names, addresses, chassis and engine no. and total price of motor cycles sold under said invoice including the advance adjusted which was received from the customers. According to Ld. Counsel for the assessee, this is general practice in the trade where the demand is high and goods are in short supply and in such scenario, assessee is receiving money against future sales. Ld. Counsel for the assessee explained before us that the liability credited under the head "advance from customer account" and the same is squared up the moment motor cycle is delivered to the customer. According to Ld. Counsel, this can be verified from the books of account and AO has verified also. Ld. Counsel for the assessee particularly drew our attention to page 131 of the assessee's paper book wherein the customer's name and address is mentioned as Maya Gurung, A-Zone, Hostel Avenue, Durgapur-4, DT. Burdwan, invoice dated 23.04.20 10 wherein advance of Rs.38,000/- was adjusted as under: Sl.No .Particulars Amount 1. Super splendor cast 45,250.00 2. Hero Honda Goodlife 260.00 45,510.00 Less : Advance 38,000.00 Due 7,510.00 Less Paid 7,510.00
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We find that the assessee is following mercantile system of accounting, wherein it is receiving advance deposits from customers on account of sale of motor cycle being a dealer in automobile. Whenever the sale is taken place, within one to two months, these deposits are adjusted against sale price of the motor cycle. This fact is admitted by both the sides. The issue is whether the assessee is consistently following certain system of accounting which had been accepted by the department from the very beginning and even in future years. There is no change of system of accounting followed by the assessee. Allowing the department to adopt a different approach altogether in this assessment year in question would create an anomalous situation as far as the assessee is concerned. The issue that the dealer receiving advance money from customers where the item is in demand and there is scarcity of supply, it many a times happen that seller receives advance money from the purchaser and as and when supply is made the advance is adjusted against sale price. This is being done by the present assessee before us also. The advance money, in the present case before us, is adjusted the sale price of the motor cycle and sale is disclosed in the return of income i.e. the trading account of the assessee. Accordingly, we find no ambiguity in the system followed by the assessee. 8. From the details filed before us, Ld. DR could not point out the discrepancy in the same because these advances were adjusted against sales. When this was pointed out to Ld. Sr. DR, he stated that the assessee is unable to produce the PANs, names and addresses of the parties. He was specifically shown a tax/retail invoice wherein complete details were given except thePAN/Voter I. Card. In our view, PAN/Voter Identity Card is a KYC norm, which does not apply to the sale of goods under the Sale of Goods Act. In view of the above, we are of the view that the AO and CIT(A) both have erred in making and confirming this addition and accordingly, we delete the same. The sole issue of assessee's appeal is allowed.” The above ruling of the tribunal was affirmed by the Hon’ble High court of Calcutta in [2017] 81 taxmann.com 107 (Calcutta). The Hon’ble high court held the cited case as under: 7. The assessee may not have maintained detailed record of the customers. But question is whether the receipt has satisfactorily been established to be on account of advance payment. That question has been answered by the learned Tribunal in the affirmative by holding as follows: "The advance money, in the present case before us, is adjusted the sale price of the motor cycle and sale is disclosed in the return of income i.e. the trading account of the assessee. Accordingly, we find no ambiguity in the system followed by the assessee."
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The aforesaid finding was recorded by the learned Tribunal on the basis of evidence disclosed before them which is also found in the paper book filed before us by Mr. Khaitan. It cannot, therefore, be said that the view taken by the Tribunal is perverse. The question essentially is a question of fact and the learned Tribunal on the basis of evidence was satisfied that the money had in fact been received by way of advance and therefore, no question of any bogus liability being created was there as held by the Assessing Officer. 9. In that view of the matter, we are of the opinion that the finding arrived at by the learned Tribunal is not perverse. Section 68 in the facts of the case had no applicability. The question is, thus, answered in favour of the assessee. On the similar facts Hon’ble Delhi High court in the case of Commissioner of Income-tax, Delhi-VI v. Tulip Finance Ltd. reported in (2009] 178 Taxman 182 (Delhi) also taken the similar view.
Therefore, we hold that the Ld.CIT(A) erred in confirming the addition made by the AO hence, we set aside the order of the Ld.CIT(A) and delete the addition. Accordingly, the appeal of the assessee on this ground is allowed. In the result, the appeal of the revenue is dismissed and the appeal of the assessee is allowed. Order pronounced in the open court on 16th November, 2018.
Sd/- Sd/- (िी.दुगाा राि) (धड.एस. सुन्दर ससह) (V. DURGA RAO) (D.S. SUNDER SINGH) न्याधयक सदस्य/JUDICIAL MEMBER लेखा सदस्य/ACCOUNTANT MEMBER धिशाखापटणम /Visakhapatnam ददिांक /Dated : 16.11.2018 L.Rama, SPS
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आदेश की प्रधिधलधप अग्रेधर्ि/Copy of the order forwarded to:- 1. अपीलाथी / The Appellant – M/s Madhava Hi-Tech Cold Storage Pvt. Ltd. D.No.16-139, Vinayaka Nagar, Kanuru, Vijayawada 2. प्रत्यार्थी / The Respondents – Dy.Commissioner of Income Tax Circle-2(1), Vijayawada and ACIT, Circle-1(1), Vijayawada 3. The Pr.CIT, Vijayawada 4. The Commissioner of Income Tax (Appeals), Vijayawada 5. धिभागीयप्रधिधिधि, आयकरअपीलीयअधिकरण, धिशाखापटणम /DR, ITAT, Visakhapatnam 6. गाडाफ़ाईल / Guard file
आदेशािुसार / BY ORDER // True Copy //
Sr. Private Secretary ITAT, VISAKHAPATNAM