RAJASTHAN DRUGS & PHARMACEUTICALS LTD.,JAIPUR vs. ACIT, JAIPUR

PER SHRI KUL BHARAT, JM.

The appeal by the assessee is directed against the order of Ld. CIT (Appeals)-

2, Jaipur dated 24.08.2016 pertaining to assessment year 2012-13.

The assessee has raised the following ground of appeal :-

“1. The ld. CIT(A) has erred on facts and in law in confirming the addition of Rs. 94,65,432/- out of Rs. 1,34,40,879/- made by AO on account of unrecorded receipt on the basis of receipt reflected in Form 26AS by not accepting the explanation of the assessee that these receipt do not pertain to it but pertain to is stockiest M/s Eastern Drugs and Sanitary Products, Meerut. She has further erred in confirming the part addition merely because assessee has produced confirmation from 5 CMO only by not accepting the contention of assessee that since the system remains same in respect of other CMOs also, the same should be accepted even when no reply is received from them.

1.1 The Ld. CIT(A) has further erred in confirming the above addition by incorrectly holding that no evidence has been produced by M/s EDSP that these receipts pertain to them.

2 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

1.2 The Ld CIT(A) has erred on facts and in law in not directling the AO to allow the credit of TDS of Rs. 2,10,349/- while confirming the above addition.

the Financial Year 2011-12 declaring total income of Rs. 1,13,20,330/-. The case

was selected for scrutiny assessment and the assessment under section 143(3) of

the Income Tax Act, 1961 (hereinafter referred to as the Act) was framed vide order dated 19th December, 2014. While framing the assessment, the Assessing Officer

observed that on verification for Form 26AS, it was observed that assessee had also

received contracts receipts and tax has been deducted at source u/s 194C of the

Act. The Assessing Officer observed that the assessee had not disclosed the receipts

amounting to Rs. 1,34,40,879/- The assessee was called upon to explain this

discrepancy. The Assessing Officer did not accept the explanation of the assessee,

that assessee company is supplying goods to M/s EDSP and in turn M/s EDSP is

supplying the goods to CMO’s in the state of UP and proceed to make addition on

this amount. Hence, the Assessing Officer computed the income of Rs.

2,47,61,209/- against disclosed at Rs. 1,13,20,330/- by the Assessee.

after considering the submissions partly allowed the appeal. Thereby, the Ld.

CIT(A) restricted the addition to the extent of Rs. 94,65,432/-. Aggrieved by this,

the assessee is in appeal.

3 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

Ld. Counsel for the assessee reiterated the submissions has made in the written

submissions. The written submissions are reproduced as under:-

“Submission:-

4 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

In response to this EDSP has informed that according to purchase policy of Govt. hospital in the state of UP and as per the terms of tender, public sector undertakings have been given privilege of making the supplied though their distributors but the payment has to be made to the public sector companies only. Therefore, the Govt. hospitals had made the payment directly in assessee’s account and deducted & credited the tax in the account of the assessee. It is further claimed by EDSP that credit of such TDS be transferred to their account and the credit note be issued for the same as supplies were made by them (PB 25). Thus, it is clear that the amount on which tax is deducted at source by the Govt. hospital is sale of EDSP and not the sale of the assessee. The CIT (A) has incorrectly held that assesee has not produce any confirmation/ evidence from M/s EDSP which supports the claim of assessee that these receipts relate to M/s EDSP and not to assessee whereas this letter of N/s EDSP confirms that the amount on which tax is deducted at source belongs to them and not to the assessee. Thus, the amount involved in TDS certificates is not the sale/income of the assesee and therefore, addition made by the AO and confirmed by the Ld. CIT(A) without taking cognizance of the manner in which goods are supplied by the stockiest of the assessee to the Govt. Hospital is uncalled for and unjustified.

5 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

Mathura Chief Medical 26,51,172 59,386 15 Officer Pratapgarh Lal Bahadur Shastri 2,97,754 6,103 17 Hospital Varanasi Chief Medical 2,79,640 6,016 23 Superintendent Hospital Bijnor

Copy of Form 26AS linking it with the invoice raised by EDSP was filed before CIT(A) by way of additional evidence on 29.01.2016 (PB 4-11). The AO in respect of CMOs where invoices were submitted has accepted the contention of the assesee that the receipt of Rs. 39,75,447/- belong to EDSP and not to assessee but did not accept the contention of assesee in respect of other CMOs who have not replied. However, he ignored the fact that system remains same in respect of other CMOs also who has not furnished the invoice inspite of legal notice. It is not the case of lower authorities that any of the CMO have admitted that goods were supplied to them not by EDSP but by the assessee directly. If the lower authorities have any doubt regarding the remaining CMOs, they may have made direct enquiry from them to confirm the fact. In any case, EDSP has accepted that the receipt on which tax is deducted at source in the name of assessee by the CMOs belong to it and also requested to transfer the TD credit to its account (PB 25). Thus, merely because payment is reflected in Form 26AS and is shown to have been made to the assessee, it cannot be brought to tax in his hands when the said money is not received by the assessee as held in the case of Ravindra pratap Threja Vs. ITO (2016) 129 DTR 181 (Jab.) (Trib) (PB 43-45). 6. The AO has also observed that M/s EDSP is under the investigation of BI under the NRHM scam. However, this has nothing to do with the assessee as goods supplied by the assessee to EDSP have been duly accounted for by it n the books of accounts. If EDSP is involved in any scam in respect of the goods supplied by it to the Govt. Hospital, assessee is not responsible. It is not the case of AO that any sale made by assessee to EDSP is not accounted or it has produced any goods out of books or the books of accounts are not reliable. Therefore, the finding of the AO that as there is CBI enquiry going against EDSP and the investigation is not completed the contention of the assessee can not be accepted at this stage is irrelevant for making the addition. 7. The Hon’ble ITAT vide Order dated 05.02.2016 in assessee’s own case in ITA No. 425/JP/15 for AY 2011-12 (PB 46-52) has restored the matter to the AO for fresh assessment after verification of documents filed before Hon’ble ITAT and to issue appropriate notices to EDSP and other agencies involved in the matter to find out

6 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

the truth and if required to call records from BI to find out the correct facts and circumstances. The AO after verification of documents filed by assessee completed the assessment and vide its order dt. 29.12.2016, deleted the addition in respect of 3 CMOs from whom confirmations have been obtained but made the addition in respect of other CMOs. Against the addition so made, assessee has filed an appeal before CIT(A) on 27.01.2017 which is still pending. However, in making the addition, AO has not followed the directions given by Hon’ble ITAT and has not issued any notices to EDSP and other agencies involved in the matter or called the records from CBI to find out the correct facts and circumstances. Therefore, in the absence of any adverse material against the assessee and without considering the confirmation of EDSP that the amount reflected in Form No. 26AS of the assessee pertains to it, the addition made by AO and confirmed by CIT(A) is incorrect.

4.1 On the contrary, the Ld. Departmental Representatives opposed the

submissions and supported the Assessment Order.

4.2 We have heard the rival contentions, perused the material available on

record. The Ld. CIT(A) decided the issue in para 2.3 as under:-

“2.3 I have perused the facts of the case, the assessment order and the submissions of the appellant. During the assessment proceedings, it was noticed by the assessing Officer that form No. 26AS relating to the assessee reflected receipts of an amount of Rs. 1,34,40,679/- on which a TDS of Rs. 2,97,705/- had been made and which had not been accounted for by the assessee nor the TDS thereon was claimed in return of income filed. Receipts of Rs. 9,16,144/- were accounted for by the assessee as reflected in the Form no. 26AS and the TDS thereon of Rs. 80,837/- was claimed in the returned of income filed. The Assessing Officer, show caused the assessee as to why the above receipts were no accounted for in its accounts. The assessee vide letter dated 15.12.2014 had submitted that the assessee company is engaged in manufacturing and supplying of pharmaceuticals products and is a public sector under taking in which 51 % equity is held by the Central Government and 49 % is held by government of Rajasthan. It was further submitted that

7 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

the Form No. 26AS included receipts of Rs. 134,40,879/- which related to M/s Eastern Drugs and Sanitary products (EDSP) which was the sole distributor of the assessee company for the State of UP and as per the purchase policy of the state, payments were to be made to only a public sector company and EDSP being a private company the payments were made in the name of M/s Rajasthan Drugs & Pharmaceuticals Ltd and hence TDS was also deducted in the name of the assessee company even though the goods had been supplied in the state by M/s EDSP. It was further clarified that these receipts related to sales made to the Chief Medical Officer's in the state of UP by M/s EDSP and billing was also undertaken by M/s EDSP and the receipts also related to them and the total sales made to the M/s EDSP during the year by the assessee company was Rs. 3,05,05,567/- which is much higher than the amount of sales appearing in Form No. 26AS. An affidavit of the managing director of the company, stating these complete facts, had also been filed during the assessment proceedings. the Assessing Officer did not accept the submissions for the reasons as enumerated by him in his order at Page-5 and which are reproduced below:-

"1.5 I have considered the reply of the assessee carefully. The explanation furnished by the assessee company is not acceptable for the following reasons;- (a) Assessee's argument that as assessee is Government undertaking and its account had been audited by various agengies, hence, "there cannot to any possibility at any stage that any transaction remain unaccounted or any income remain unaccounted in books of accounts of Assessee Company" is not a plausible, rational and satisfactory argument. (b) Point number 2 of assessee's reply is not acceptable as assessee failed to furnish any evidence showing that said receipts pertains to M/s EDSP. Assessee failed to submit any confirmation from M/s EDSP. Also, form 26AS did not reflect said receipt in name of M/s EDSP. Thus point number 2 of assessee reply is not acceptable. (c) Point number 3 of assessee's reply is not acceptable because said communication letter between assessee and M/s EDSP pertains to financial year 2009-2010 and not of F. Y 2011-12. Also, as per reply of M/s EDSP M/s EDSP had requested "to transfer these amounts (TDS) in M/s EDSP account and issue credit note for the same". However, assessee failed to furnish any evidence regarding said transfer of TDS

8 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

amounts and related credit notes. Thus, point number 3 of assessee's reply is not acceptable.

(d) Further the assessee company stated that all TDS entries pertains to sale made in UP state and relates to M/s EDSP and the said TDS also pertains to M/s EDSP. The contention of the assessee company is not acceptable as when the TDS entities relates to M/s EDSP then why not M/s EDSP then why not M/s EDSP claimed the TDS in their own return of income. (e) Further the assessee company argued that they sold the goods and raised the bills to M/s EDSP and thereafter M/s EDSP supply the goods and raised bills to various CMO's (Chief Medical Officers) of the UP state. In this regard, it is worthwhile to mention here that when M/s EDSP raised the bills to various CMO's then why the CMO's will deduct the TDS of the assessee company. (f) In point number 6, the assessee company argued that MD of the company had given affidavit in this regard that the said receipts does not pertain to the assessee company, In this regard that the said receipts does not pertains to the assessee company. In this regard, it is worthwhile to mention here that in the said affidavit, theMD had written that "the fact is true to the best off my knowledge so help me God". Such affidavit has not evidentiary value in the eyes of law as it is without any supporting evidences. (g) There was a big NRHM scam in the distribution and supplying of the medicine and the CBI is doing enquiry on this issue. In the present case also the CBI and the assessee company submitted various copies of bills and related documents to the CBI for verification in connection with M/s EDSP. As there is CBI enquiry is going on and the investigation is not completed yet, so, the contention of the assessee company cannot be accepted at this stage that M/s EDSP used the PAN of the assessee company for deducting the TDS.

Due to the above reasons an addition of Rs. 1,34,40,879/- was made to the total income of the assessee company. In the present proceedings, the facts as presented during the assessment proceeding were related and further an application for admittance of additional evidence under Rule 46A was also filed. The evidences included copies of invoices raised by M/s EDSP on which tax at source had been deducted in the name of M/s Rajasthan Drugs & Pharmaceuticals Ltd relating to six CMOs, further, copy of the form no. 26AS

9 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

linking it with invoices raised by M/s EDSP were also filed. The assessee has submitted that while it had issued letters/legal notices to various CMOs the replies received only from six of them and the same may be verified and could be taken to represent similar purchases for receipts shown in Form No. 26AS relating to the assessee. Considering the overall circumstances the additional evidences were admitted and forwarded to the Assessing Officer for his comments. The remand report of the Assessing Officer dated 28.07.2016 is reproduced below:-

"As per Rule 46 (A) (1), the assessee is entitled to furnish additional evidence during appellate proceedings only under circumstances mentioned in clause (a) to (d) of Sub- rule (1). It may be mentioned that clause (a), (c) and (d) are not applicable in the case of appellant. It is further submitted that sufficient opportunity was provided to the assessee to produce evidence regarding cash creditors but the assessee failed to produce these evidences during assessment proceedings. Even during the appellant of proceedings before your honour the assessee was unable to submit any document which shows that there was sufficient cause which prevented him/them to produce these documents before the A. O. at the time of assessment. During the appellate proceedings the assessee has filed letter on 29.01.2016 requesting for admission of additional evidence under Rule 46A received from Chief Medical Officer/Superintendent. The case has been remanded back to this office for admission of additional evidence under Rule 46(A)(1)(b) of IT Rules. To ascertain the genuineness of facts submitted by the assessee, letter was issued to the assessee and asked to get the documents/additional evidence verified from books of accounts. The A. R. of the assessee appeared and produced requisite documents/details. On going through the documents filed by the A. R. of the assessee it is found that following amounts pertained to M/s Eastern Drugs & Sanitary Products (EDSP) who is the sole distributor of the assessee company and not to the assessee company.

S.No. TAN No. Name Amount TDS made Credited 1 ALDL00334F Lai Bahadur Hospital, 2,97,754/- 6103/- Varanasi 2 AGRC10122A Chief Medical 94,934/- 1,901/- Superintendent, Mathura 3 ALDC00452E Chief Medical Officer, 26,51,172/- 59,386/- Pratapgarh,

10 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

4 LKNC05473C Chief Medical 2,79,640/- 6,016/- Superintendent, Bijnor, 5 AGRC10605A Chief Medical 6,51,947/- 13,950/- Superintendent, Distt. Hospital, Mathura Total 39,75,447/- For the remaining amount of Rs. 94,65,432/- the assessee not furnished any evidence, thus amount of Rs. 94,65,432/- is deserves to be sustained."

In the rejoinder to the remained report the AR submitted that the assessee has explained the circumstances, under which, the various CMOs of the Government Hospitals in the state of UP, have deducted tax at source on the supplied of the medicines made by its sole distributor M/s EDSP, in the name of the assessee. This system is verified by the Assessing Officer in respect of five CMOs of the Government hospital and since the system remains the same in respect of other CMOs who have not replied, the same should be accepted. It was further submitted that M/s EDSP has also accepted that these amounts related to them and had requested the assessee to pass on the credit of these TDS to its account. Further, reliance was placed on the case of Shri Ravindra Pratap Taneja vs. ITO. 129 DTR 181 (Trib) to submit that because a payment is reflected in Form No. 26AS and is shown to have been made to the assessee , it cannot be brought to tax in his hand when the amount is not received by the asseessee itself. I have gone thought he submissions, additional evidences as well as the remand report of the Assessing Officer. No evidence has been produced from M/s EDSP that the sales were accounted for in their accounts nor any confirmation filed from them, to this extent. Thus, even though the assessee claims that these receipts relate to M/s EDSP but in the absence of the any such confirmation or evidences the same cannot be accepted. Further, assessee has produced confirmation only from Five CMOs. In view of the discussion above, an amount of Rs. 39,75,447/- relating to evidences furnished are accepted as not relating to the assessee and the addition of balance amount of Rs. 94,65,432/- is sustained. The ground of appeal is partly allowed.

11 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

4.3 It is contended by the Ld. Counsel for the assessee that the Co-ordinate

Bench in assessee’s own case pertaining to the assessment year 2012-13 remitted

the issue to the file of the Assessing Officer, for decision afresh in the light of the

direction given in para 5.2 of the order. We find that the Co-ordinate Bench in ITA

NO. 425/JP/2015 in assessee’s own case pertaining to the assessment year 2011-12,

directed Assessing Officer in para 5.2, 5.3 & 5.4 as under:-

“5.2. The ld. A/R for the assessee has demonstrated in respect of the bills raised from 30th August, 2010 to 20th march, 2011 at sl. 1 to 7 in Form 26AS and stated that the bills were raised by EDSP to the CMOs and the amount mentioned therein matches with the amount reflected in Form 26AS. Similarly, in respect of other invoice, it was also contended that the entire bills were raised for which the TDS has been credited in the account of the assessee pertaining to EDSP and was not related to the assessee, be that as may be. This Tribunal, at this stage is not required to examine and scrutinize the document filed before us. Since the said documents, which are now placed before the Tribunal, were not stated to be in possession of the assessee, before the AO or as well as before Ld. CIT(A), therefore, these documents are required to be examined. Accordingly it will be in the fitness of circumstances require that the matter be remanded to the AO for examination, denovo, the documents filed by the assessee before us and come to a conclusion in accordance with law. Needless to state that since the stay has been granted on 1st January, 2016, it may be in the interest of parties, the proceeding be decided expeditiously as far as possible but not later than 30th July, 2016. We may add that the AO shall consider all the documents already on record and now filed before us in deciding the mater. Further, the AO may issue appropriate notices to the EDSP and other agencies involved in the matter to find out the truth as to- 1) Whom the tender has been issued for supply of drugs & medicines.

12 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

2) which agency was required to supply the goods. 3) Which agency was required to raise the bills and which agency had actually supplied the goods, to whom the amount has been paid by the CMOs.

5.3. From the perusal of the written submissions before us, it transpired that a preliminary enquiry is pending with the CBI in respect of drugs supplied by M/s EDSP under NRHM. The AO, if required, may also call the records from the CBI, to find out the correct facts and circumstances.

5.4. In the light of the above said observation we restore the matter to the AO for fresh assessment.”

4.4 In the present case, the Ld. CIT(A) has given part relief on the basis of the

confirmation received from the concerned CMO’s. It is the contention of the

assessee that the receipt which has been added by the Assessing Officer does not

pertain to the assessee in support of this affidavit on behalf of the managing director

of the assessee is furnished at page 42 of the paper book. Under these facts we

deem it proper and in the interest of the justice, that the contents of the affidavit be

verified at the end of the Assessing Officer. The Assessing Officer is hereby directed

to make inquiry from the concern parties, who had deducted taxes and also the

nature of receipts. If it is found that the payments do not pertain to the assessee, in

that event, the Assessing Officer would delete the entire remaining addition. In the

light of the above direction, ground no. 1 and 1.1 of the assesse’s appeal are

allowed for statistical purposes.

since we have already restored the issue in related to ground no. 1 to the file of the

13 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.

assessing officer. Therefore, this issue is also restored to the file of the Assessing

Officer to decide in accordance with law.

dismissed.

allowed for statistical purposes.

Order pronounced in the open court on Thursday, the 27th day of April 2017.

Sd/- Sd/- ( dqy Hkkjr) ¼foØe flag ;kno½ (VIKRAM SINGH YADAV) ( KUL BHARAT ) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Jaipur Dated:- 27/04/2017. Pooja/ आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू

सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत

14 ITA No. 984/JP/2016 M/s Rajasthan Drugs & Pharmaceuticals Ltd, Jaipur.