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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI C.M.GARG & SHRI O.P.MEENA
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 1 of 29 आयकर अपील�य अ�धकरण, इंदौर �यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE �ी सी.एम.गग�, �या�यक सद�य तथा �ी ओ.पी.मीना, लेखा सद�य के सम� BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER आ.अ.सं./ ./ ./ I.T.A. No.277 & CO.16/Ind/2014 ./ �नधा�रण वष� /Assessment Year:2008-09
DCIT 1(1) Indore V. 1. Modern Laboratories 45 2. Modern Laboratories 45 Sector 45, Sector D-2, Sector 45, Sector D-2, Sanwer Road , Industrial Sanwer Road , Area Indore Industrial Area Indore PAN:�था.ले.सं.:AACFM5920B PAN:�था.ले.सं.:AACFM5920B 2.DCIT 1(1) Indore अपीलाथ� /Appellant ��यथ� /Respondent अपीलाथ� क� ओर से/Appellant by Shri S.S. Deshpande, CA ��यथ� क� ओर से/Respondent by Shri Mohd. Javed, Sr. D.R. सुनवाई क� तार�ख/Date of hearing 11-07-2017 उ�घोषणा क� तार�ख/ Pronounced on 10 -08-2017 आदेश /O R D E R PER O.P.MEENA, ACCOUNTANT MEMBER. 1. This appeal by the Revenue and Cross Objection by the assessee are directed against the order dated 29 January 2014 of the Commissioner of Income-tax (Appeal)-I, Indore for the assessment year 2008-09.
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 2 of 29 2. Ground No. (i) of Revenue relates to direction of restriction to 50% of commission expenses of Rs. 63,82,160/- by the Ld. CIT (A). Whereas by Ground No. 1 in Cross Objection, of the assessee has challenged the confirmation of 50% commission expenses at Rs. 31,91,080/-, even though, it was proved before CIT (A) that the commission to Shafa A. M. Consultants was paid as business expediency and confirmation was duly filed. 3. Succinctly, facts as culled out from the orders of lower
authorities are that the assessee is in the business of
manufacturing and sales of pharmaceuticals products and
around 95% sales is to government Departments. The assessee
supplies goods to M. P. Laghu Udhyog Nigam (MPLUN). The
assessee has debited commission expenditure of Rs. 63,82,162
and Rs. 27,57557 under the head commission on sales and
MPLUN commission respectively to Profit & Loss Account. The AO
was of the view that there is no scope of any middlemen for giving
assignment of purchase of medicines to the State government
Departments. The AO therefore, allowed commission payments
to MPLUN and disallowed the entire commission payments paid
to other against of Rs. 63,82,162 on the ground that middlemen
is not allowed in sales and products made to government
agencies, as government takes serious view of the same. The AO
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 3 of 29 also observed that no explanation was offered as regards the
service rendered by such commission agents. The AO noted that
some State government have assigned the task of carrying out
any formalities relating to purchase to government body, like
MPLUN in the case of Government of MP. This aspect makes it
clear even if any commission is requires to be paid it goes to
coffers of a government agency only of which books of accounts
are subject to audit by the C&AG. As per agreement executed
between the assessee and MPLUN, which is submitted only in
respect of one contract, shows that MPLUN charges 1% service
charge +12% Service tax and 1% on inspection charge + 12%
service tax. Accordingly, the aggregate charge payable to MPLUN
worked out to 2.24% of the supply amount. The AO was of the
view that same hold good to different Departments of government
of MP through MPLUN. The AO found that there is exorbitant
commission payments varying from 0.5% to 25% shown in
respect of some parties. The AO noted that commission payments
of Rs. 24,14,034 to M/s. Shafa-E-Am Consultants, Delhi relates
to supply of goods to Director of Health Services, Guwahati,
Director of Animal Husbandry, Delhi, Medical Officer Delhi,
Medical Superintendent, Delhi, Superintendent Health Services,
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 4 of 29 Dibrugarh and Silchar in addition to some Private Parties. The
commission ranging from 6% to 25% in case of government
supply whereas in case of private parties it ranging from 5, 8,
and 10%. In case of Nav Enterprise, commission shown @5% on
one occasion and on other occasion it is 10%. Further, the
assessee has not furnished copy of ledger account and details of
intermediate government bodies like MPLUN in respect of other
states. In view of these facts, the AO hold that commission paid
is nothing but entry to minimize the incidence of tax. In case of
Ms. Leena Mohanty, Bhubneshwar through which supply to Dy.
Director Medical Health Services at different places of Orissa to
whom commission rate is shown at 4% to 11% and to Dy.
Director of Medical Health Services, Balasor on which different
rate of commission of 9% to 11% is charged. The AO further
noted that there were certain infirmities like bill of previous year
debited in this year and bills were not tallying with TDS
certificates and there was huge variation from 1% to 25%.
Accordingly, the AO disallowed the entire commission of Rs.
63,82,162 claimed in respect of commission to other agents.
Being, aggrieved, the assessee filed an appeal before the Ld.
CIT (A). The assessee filed details submissions before the CIT (A)
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 5 of 29 which are reproduced by the CIT (A) at para 2 on page No 2 to 6
of his order. The CIT (A) has also called for remand report from
the AO on this issue. After careful consideration , the CIT (A)
observed that it emerges that the appellant is into business of
manufacturing and sales of pharmaceuticals products, where
selling is entirely based on canvassing done by selling agents.
Hence, existence of selling agents is reality is such business and
this is proved from the facts that all these parties are unrelated
to the appellant and each one of them have confirmed to the AO
that they were working as agents to the appellant The CIT (A)
further observed that such commission agents are not
middlemen as so far no proof has been adduced by the AO that
out of such payments to agents any gratification was paid to
government Departments for procuring such orders. But these
commission payments were for helping to the appellant for filing
various tenders , pursuing the authorities for placement of
orders, helping in smooth supply of goods and recovery of monies
from the government. MPLUN only doing the tendering job. But
the pre tender and post tender activity can very well be done by
the commission agents as held in the case of Nestor
Pharmaceuticals (P.) Ltd. [2010] 33 DTR 293(Del), Bharat Medical
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 6 of 29 Stores [2009] 308 ITR 373(P&H) and Voltamp Transformers Pvt.
Ltd. [1981] 129 ITR 105 (Guj). This explain the role of
commission agents in government contract and describes the
details of service rendered by them in such contracts. On merits,
the CIT (A) observed that there is mismatch in the case of M/s.
Apex Pharmaceuticals, Bhopal regarding bills and TDS and
variation of commission payments from 1% to 25%. The appellant
explained that though the bills may pertains to earlier year but
payment is made during the current year, but that could not be
valid explanation as the assessee follows mercantile system of
accounting. With regard to higher amount of commission, the CIT
(A) observed that the appellant has explained that it was paid
because supplies were made in remote areas/ location and
different agencies were involved and in such situation it was not
practically possible to mange affairs by himself. Beside, some
long pending recoveries were made from remote location. But the
appellant has failed to proved specific details as to what was the
amount of recovery from these remote areas was collected. Beside
it was noticed that out of total 20 commission agents commission
was paid ranging between 1% to 5% in case of 16 commission
agents , in respect of 4 commission agents namely Shafa- E-Am
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 7 of 29 Consultants, Ms. Chanchal Jain, Mr. RK Jain, Ms. Leena
Mohanty, commission rate was ranging as high up to 25%. No
satisfactory explanation and specific details given as to what
service rendered by these 4 commission agents and how they
were superior to services rendered by 16 commission agents.
Considering these facts, the Ld. CIT (A) has disallowed 50%
commission expenses out of Rs. 63,82,160 as claimed by the
appellant. Thus, relief of Rs. 31,91,080 was allowed on this
account.
Being dissatisfied with relief of 50% out of commission
payments, the Revenue has filed this appeal before us and the
assessee has aggrieved against the sustenance of 50%
disallowance through Cross Objection. The ld. Sr. DR submitted
that the assessee is supplying drugs through nodal agency
MPLUN. The commission payments to MPLUN was allowed by the
AO while commission payments to other private parties was
disallowed as there was no system keeping middleman in supply
to goods to government Departments. The Ld. Sr. D.R. contended
that the Ld. CIT (A) has accepted that the commission payments
to 16 parties was in the range of 1% to 5% whereas commission
payments to 4 commission agents was in the range up to 25%.
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 8 of 29 Further, the assessee was unable to prove that what type of
services were rendered by these agents. Therefore, the Ld. CIT (A)
was not justified is allowing deduction of 50% out of total
commission payments. The Ld. Sr. D.R. also relied in the case of
DCIT v. Shri Nautmal & Sons I.T.A. No. 78/Ind/2013 dated 19-
07-2013 [Indore-Tribunal] wherein such exorbitant commission
payments at the rate of 20% allowed by the CIT (A) was set-aside
to the file of the AO by the Tribunal. The Ld. Sr. D.R. further
place reliance in the case of DCIT v. Mcdowell & Co Ltd. [2007]
291 ITR 0107 (Karn) wherein disallowance of commission
payments for providing service of sale of liquor to canteen stores
Department of Indian Military by the assessee company was
upheld on the ground that such canvassing was prohibited by
the government Circular dtd. Dtd. 13th July 1992 and 24th July
1992.
On the other hand, the Ld. D.R. of the assessee submitted
the assessee supplies goods to various government department
like MPLUN, who is authorized to put orders for purchase of
goods on behalf of the government of Madhya Pradesh. For the
purpose of floating tenders and placing orders for which MPLUN
charge the service charge @ 2.24% and further charges 5% for
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 9 of 29 the performance guarantee. For filing of tenders, supply and
approval of the goods to the government bodies and especially for
the recovery of the amounts, the assessee engages the agencies
and pays commission to them. The commission paid to such
agencies ranges approximately 7% to 10%. For some local sales
commission is paid between 1% to 3%. In some hard cases, the
commission has been paid up to 18%. The supplies are made not
only to MP Government bodies but to other State government
bodies also. The assessee had filed complete details of
commission agents with PAN and sales effected through
them(PB34) The details of commission payment party-wise with
bills were also filed before lower authorities (PB36 to 61) It was
explained that commission was paid as business expediency on
which TDS was also deducted under section194H. In remand
report proceedings , the AO issued notice under section 133(6) to
all commission agents and all of them have confirmed rendering
services and receiving commission. The AO disallowed
commission payment on the reasons that in some cases bills are
of different dates and rate of commission of 2.24% to MPLUN
whereas rate of commission to others is at higher rate. However,
the AO failed to appreciate that the payment of MPLUN is not
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 10 of 29 commission but is the service charge/ inspection charged by
them on the basis of condition of tender. In support of his
contention, the Ld. AR also placed reliance in the case CIT vs.
Pure Pharma (P) Ltd. [2005] 270 ITR 382(MP)/ [2005] 144
Taxman 364(MP) wherein commission was found paid on
supplies made to Government and its agencies and all the
payments were made to various parties by account payee
cheques/demand drafts, the identity of each of the agents was
established and the expenditure was found incurred for business
purposes. It was held that such expenses were allowable and
consequently the addition was deleted. In the instant case also,
the agents have confirmed the services rendered and the AO has
not brought on record anything contrary to the admission of the
agents, whether the payments have been made by cheques after
deduction of TDS. The Ld. AR also cited decision of this Tribunal
in the case of Kriti Industries v. ACIT 4(1) Indore in I.T.A. No.
268/Ind/2016 dated 27-10-2016(Tribunal-Indore) (PB-16 PB-II),
CIT v. Bharat Medical Stores [2009] 308 ITR 373 (P&H), Prochem
Laboratories Pvt. Ltd. v. ACIT , I.T.A. No. 86/Ind/2010 dtd. 28-
11-2011, CIT v. Septu India Pvt. Ltd. [2008] 305 ITR 295 (P&H)
and other as per his written submissions.
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 11 of 29 7. We have considered the facts, rival submissions and
perused the material available on record. Ongoing through the
assessment record as well as findings of the ld. CIT(A), we find
that the assessee has submitted detailed evidences like names of
the agents, PAN numbers, describing services rendered by the
Agents, confirming the transaction, details of the TDS made. In
remand report proceedings, the AO issued notice under section
133(6) to these against who appeared before the AO and admitted
of rendering services as a receipt of commission from the
assessee. We also note that the MPLUN was nodal agency for
supply of goods but was not charge as commission instead it was
charging service charges as per agreement entered in to between
the assessee and it. We also note that the assessee is dealing in
supplies of pharmaceuticals products to various states like
Orissa, Assam, Meghalaya which are falling in remote areas
which is spread over a large geographical area. Therefore,
requirement of Representatives for doing such jobs cannot be
denied. Further, these commission agents have filed detailed
reply before the AO and described the various formalities and
services required to be handled by the assessee or
representatives of the agents. Further M/s. Shafa-E-Am
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 12 of 29 Consultants to whom commission of Rs. 24,14,786/- (PB-37)
paid, has filed copies of bills (PB-62 to 73). Similarly details of
commission and bills and sales effected by M/s. Chanchal Jain,
Ms. Leena Mohanty and Mr. R. K. Jain were also filed. Therefore,
we are of the considered opinion that the ld. CIT(A) was not
justified in deleting only 50% of the commission payments paid to
private parties debited to the profit and loss account. We also
find that payments made to commission agents are unrelated to
the assessee therefore, there cannot be said that the quantum of
commission is not justified. The case laws of Nautamlal & Son
(Supra) relied by the ld. Sr. D.R. is not applicable as in that case
the tribunal had set-aside the issue to the AO for further
examination of facts. Further the case laws in the case of
Macdowell Co Pvt. Ltd. (supra) is in respect of liquor supply to
Military Canteen , an government body in which canvassing was
prohibited by the government, hence, there was no question of
any commission and commission payment was against the policy
of the government, whereas in the case of the assessee, the
commission has been paid in respect of service rendered for
facilitating the recoveries, giving information of tenders etc. which
are not prohibited by law. This view is also supported by the
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 13 of 29 decision of the Jurisdictional High Court as relied upon by the
Ld. AR on the Hon'ble High Court in the case of CIT vs. Pure
Pharma, (2005) 144 Taxman 364 (MP) in para 3 & 4 held as
under :-
“3, A few facts material for deciding the said appeal, in short, may be mentioned as under :
The Respondent/assessee company is engaged in manufacturing and sale of pharmaceutical formulations. During the previous financial year, the assessee had paid total commission of Rs. 13,35,336/-. Out of this, a sum of Rs. 10,24,290/- was paid as commission on sales made to the Government and its agencies and a sum of Rs. 3,11,046/- was paid as commission to non-Government purchases. Since, a doubt was raised with regard to the payments made to various parties as commission, enquiry was held. It was found that all the payments have been made as commission to various parties by demand drafts, wherein the identity of each of the agents was also established. It has also been found that the commission was paid exclusively for business purposes only. 4. All these are findings of fact and no substantial question of law, as is required to be formulated for deciding the appeal, arises in the same. The Tribunal has also placed reliance on a judgment of the Delhi High Court reported in CIT vs. Electric Construction Equipment Co. Ltd., [1990] 182 ITR 510, wherein the Delhi High Court dealing with identical question has already decided the matter against the present appellant-Revenue.” 8. Therefore, considering the totality of the facts and
respectfully following the decision of Jurisdictional High Court,
we are of the view that no disallowance of commission payment is
called for. Accordingly, Ground No. (i) of the appeal of the
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 14 of 29 Revenue is dismissed. Further the disallowance of Rs. 31,91,080
as sustained by the Ld. CIT (A) are deleted , accordingly, Ground
No. 1 and 1.1 of Cross Objection of the assessee is allowed.
Ground No. (ii) and (iii) of Revenue relates to deleting addition of Rs. 1,33,00,000 made under section 68 of the Act and Ground no. 2 of Cross Objection of the assessee relates to confirming addition of Rs. 15 lacs in respect of M/s. Plasia Leasing & Investment Pvt. Ltd. 10. Facts apropos of this ground are that during the year under
consideration the assessee has shown unsecured loan with
interest in the balance sheet from M/s. Anekant Shares and
Securities Pvt. Ltd., Mumbai Rs.5,00,000, M/s. East West
Finvest India Ltd. Bilaspur, Rs. 30,00,00, M/s. Purvi Finvest Ltd.
Bilaspur, Rs.35,00,000, M/s. Trimurthi Finvest Ltd. Bilaspur,
Rs. 30,00,000, M/s. Palasia Leasing and Investment Pvt. Ltd.,
Ujjain Rs.15,00,000, M/s. Sea Entertainment Ltd. Mumbai
Rs.5,00,000, M/s. Skytouch Infrastructure Pvt. Ltd. Mumbai Rs.
5,00,000 M/s. Uno Industries, Mumbai Rs. 23,00,000
aggregating to Rs.1,48,00,000 plus interest thereon of Rs.
1,46,660. In order to prove the genuineness of transaction, the
assessee filed copy of confirmation, copy of income-tax return,
copy of PAN etc. However, the AO made addition on the basis of
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 15 of 29 general observation that such creditors have been found to be
providing accommodation entries to a large number of persons.
The confirmation letters and copy of returns of such depositors
was furnished before the AO, but the AO was of the view that
they have low income and thus, have not having credit-
worthiness to provide such unsecured loan. The assessee had
furnished confirmation along with PAN numbers. All these
amounts, were received by cheques. Notice under section 133(6)
issued to such parties who have directly confirmed the
transaction. However, the AO made the addition of Rs.1,48,00,
000 under section 68 of the Act.
Being, aggrieved, the assessee filed an appeal before the Ld.
CIT (A). During the course of appellate proceedings, confirmation
letters, copy of acknowledgement of returns, copy of bank
account of depositors, were filed which were forwarded to the AO
for his comments. The CIT (A) noted that the AO has made three
observation in remand report that depositors have shown
meagre income, they have deposited substantial amounts in their
accounts just prior to advancing loans and they have failed to
produce directors of such companies to prove identity. The AO
has relied on the decisions in the case of Agarwal Coal
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 16 of 29 Corporation Ltd. v. Addl. CIT [2011] 135 ITD 270 (Indore-Trib) :
142 ITJ 409 :[2012} 13 ITR(T) 531 (Indore-Tribunal) I.T.A. No.
151/Ind/2009 dated 31.01.2011(Indore-Trib). However, the
assessee submitted that said decision is not applicable in their
case, as that was regarding addition of share capital while
appellant’s is that of receiving unsecured loans, wherein identity
of all depositors are established, as they are assessed to tax and
in number of cases even assessment were made under section
143 (3) in case of depositors is also filed. It was further
submitted that the AO framed assessment assuming that various
depositors were of Lunkad group, but none of these companies
belong to Lunkad group. It was further submitted that AO’s
remarks that there was huge deposits in their bank account is
correct but the AO had forgot to mention that all those deposits
were through cheques and none of them were cash deposits.
Considering these facts, the Ld. CIT (A) has held as under: 15. I have gone through the arguments of both AO as well as that of the appellant. Since all depositors have confirmed about giving such deposits, the amounts were given through account payee cheques, the depositors were all filing returns of income, proof of which is furnished and even bank statements of depositors were furnished except that of M/s. Plasia Leasing & Investment Pvt. Ltd. as per remand report of the AO, and in such bank accounts of depositors, no cash deposits were seen. Further, the
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 17 of 29 reference of AO to survey of Lunkad group & to the term of accommodation entries provider does not help revenue`s case because that survey took place in 2006 and after considering the findings of survey the Hon`ble ITAT, Indore in the case of M/s. Narmada Extrusion Pvt. Ltd. came to the conclusion that various credits provided by Lunkad group could be considered as unexplained only if name of such party appeared in the cash-book impounded during survey of Lunkad group failed to explain the source of the same. However, that cash-book, was pertaining to A.Y.2007-08 and there were no entries for the year under consideration i.e. A.Y. 2008-09 and that is why AO did not refer to any adverse material but made a bald remark without any evidence. In the circumstances the appellant has discharged the initial onus as held in the case of M/s. Kinetic Capital Finance Ltd. [2013] 354 ITR 282(Del). 15.1 In the event the revenue still had a doubt with regard to genuineness of transaction or as regard to creditworthiness of creditors, it would have to discharge the onus which has shifted on it. If revenue has any doubts with regards to creditworthiness of depositors, the revenue could always bring it to tax in the hands of creditors as held in case of Lovely Exports (P) Ltd. [2008] 216 CTR (SC)195 and Mod Creations (P) Ltd. [2013] 354 ITR 282 (Del). Since appellant discharge initial onus, the onus shifted on revenue and there was no legal obligation on the appellant to produce directors of creditors before AO and if AO had any doubt about identity of share applicants despite their filing income-tax returns, he could have summoned them as held in case of Victor Electrodes Ltd. [2010] 329 ITR 271 (Del). Where ROI (Return of income) was filed by the creditors of the appellant and was accepted by the AO and payments were made through account payee cheques, genuineness of transaction cannot be doubted, AO has not conducted any enquiry into the same or has no material in his possession
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 18 of 29 to show those particulars are false and cannot be acted upon, then no addition can be made in hands of the appellant u/s. 68 as held in case of Gangeshwari Metal Pvt. Ltd. [2013] 214 Taxman 423(Del). In this case it was noted by the Hon`ble judges that AO sat with folded hands till the appellant exhausted all the evidence or material in his possession and then forward to merely reject the same on the presumptions. In such an eventuality, no addition can be made u/s. 68 of I. T. Act. 15.2 Following the aforesaid discussion, the addition of Rs. 1,33,00,000/- of unsecured loan from various deposits added u/s. 68 of the I.T. Act cannot be sustained while addition of such unsecured loan of Rs. 15 Lakh received from M/s. Plasia Leasing & Investment Pvt. Ltd. is confirmed because as AO reported in a table annexed to remand report, the appellant selectively avoided to file copy of bank account of this depositor, while bank a/c of all other depositors were filed. This indicate strong possibility of cash deposits in bank a/c of such depositor which shifts back the onus on the appellant in this case and put huge question mark on genuineness of such transaction, all more so when such depositor has disclosed income only Rs. 4,777/- in its return. Deposit of cash in bank account of creditor make it questionable because Income Tax Act itself has money provisions restricting cash transaction of loans , purchases and consequently sales etc. beyond Rs. 20,000/- . Therefore, in case of Plasia Leasing & Investment Pvt. Ltd. there are sufficient grounds to make strong cse3 of addition u/s. 68 of Income Tax Act. Gr. No.2 of appeal is therefore, partly allowed in so far as out of total addition of Rs. 1,48,00,000/- addition of Rs. 15,00,000/- is confirmed and balance addition of Rs. 1,33,00,000/- is deleted.
Being aggrieved, the Revenue has filed this appeal before
the Tribunal. The Ld. DR submitted that the assessee has failed
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 19 of 29 to produce the directors of creditor companies before the AO
during the course of assessment proceedings and also in remand
report, hence, Ld. CIT (A) was not justified in deleting the
addition. The Ld. Sr. D.R. further relied in the case of CIT v.
Rathi Finlease Ltd. [2008] 215 CTR (MP) 429 in support of his
contentions. The Ld. Sr. D.R. further contended that depositors
does not have source for such loan and before giving loan by
cheque to the assessee. Thus, the genuineness of loan
transaction is not proved hence, the order of CIT (A) be quashed
and that of the AO be restored.
On the other hand, the Ld. AR for the assessee submitted
that the addition of Rs. 1,48,00,000 was made on account of
unexplained cash credit under section 68 of the Act. Out of this
the Ld. CIT (A) deleted addition of Rs. 1,33,00,000 by treating
same as genuine transaction. The assessee has borrowed fund
from various parties of which confirmation, together with PAN
numbers, bank statements and income-tax returns were
furnished. In most of the cases, notice under section 133(6) have
been issued and majority of the parties have directly confirmed
the transaction with the assessee. The AO has not bothered to
verify the creditworthiness from the PAN of respective parties,
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 20 of 29 which would show that creditors were genuine. The Ld. AR
submitted that there is no cash deposits in the account of
creditors before issue of cheques, hence, in the light of decision
in the case of Gangeshwari Metal Pvt. Ltd. [2013] 214 Taxman
423(Del). The Ld. AR submitted that the ratio of the decision of
the Hon'ble Madhya Pradesh High Court in the case of Rathi
Finlease Limited (supra) is not applicable to the present case as it
is related with share application money and the share applicants
were not found to be in existence and in that case, amounts were
paid in cash on the same dates on which the amounts were
credited to the bank accounts of such applicants. The Ld. AR
further submitted that other decisions of the Hon'ble High Court,
as relied upon by the learned DR, do not apply to the present
case having distinct facts and circumstances. Therefore, the first
appellate order may kindly be upheld and sustained by
dismissing the appeal of the revenue. The Ld. AR further relied
on following decision viz: CIT v. Tania Investment Pvt. Ltd.
[2011] 322 ITR 394 (Bombay), CIT v. Varinder Rawley [2014] 366
ITR 232 (P&H), CIT v. Kinetic Capital Finance Ltd. [2013] 354 ITR
296 (Del), ACIT v. Pravin Mittal [2016] 28 ITJ 473 (Trib-Indore),
CIT v. Metachem Industries [2000] 245 ITR 160 (MP):161 CTR
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 21 of 29 444 (MP) : [2001] 116 Taxman 572 (MP), were cited and special
attention was drawn in the case of CIT v. Pithampur Conzima (P)
Ltd. [2000] 244 ITR 442 (MP) wherein it was held that where in
appeal before the Tribunal, the assessee showed that the credits
given to the assessee duly declared by the creditors in their
respective returns, where upon Tribunal concluded that the
investment in the hands of the assessee-firm was duly explained
and no addition was called for in the hands of the assessee and
deleted the said addition. Held that deletion of addition in the
hands of the assessee on the basis of satisfaction by the Tribunal
and on the appreciation of material by the Tribunal and
accordingly, no question of law arose for reference.
The Ld. AR submitted that the ratio of the decision of the
Hon'ble Madhya Pradesh High Court in the case of Rathi Finlease
Limited (supra) is not applicable to the present case as it is
related with share application money and the share applicants
were not found to be in existence and in that case, amounts were
paid in cash on the same dates on which the amounts were
credited to the bank accounts of such applicants. The Ld. AR
further submitted that other decisions of the Hon'ble High Court,
as relied upon by the learned DR, do not apply to the present
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 22 of 29 case having distinct facts and circumstances. Therefore, the first
appellate order may kindly be upheld and sustained by
dismissing the appeal of the Revenue.
We have heard the rival submissions of both the parties and
perused the material available on record. We find that the
creditors except M/s. Plasia Leasing & Investment Pvt. Ltd.,
when we analyze the facts of the case in view of the contentions
and submissions of the assessee vis-à-vis the findings recorded
by the authorities below then we hold that there is no dispute
regarding existence and identity of the five companies as the
assessee submitted their names, addresses and PAN along with
all relevant documents in the shape of returns, financial results
and accounts of these companies. Since undisputedly the
amounts were received from all the five companies through
cheques and banking channel, thus identity of the creditors and
genuineness of the loan transactions cannot be disputed. In the
present case, when we analyse the company wise facts then we
find that these companies have filed reply to notice under
section 133(6) to the AO directly. There are no cash deposit
before issue of cheque to the assessee. All the creditors have filed
copy of income-tax return acknowledgement, confirmation letters,
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 23 of 29 copies of the bank statements, copies of accounts,
acknowledgement of ITRs, computation, audited annual
accounts, etc. were placed on record which are available from
page 11 to 53 of the assessee’s paper book-I and at pages 5 to 9
and 37 to 41 of the departmental paper book. The balance sheet
of both the companies has been signed by the assessee himself
as director. From the copies of bank statements of these two
companies available at pages 8 and 40 of the departmental paper
book we observe that there were no cash deposits during the
assessment year under consideration in these accounts. The AO
himself in his remand report has not pointed out any major
discrepancies. In the present case in view of the above foregoing
discussion, we observe that the assessee filed all possible
documents before the AO which were also submitted to the AO by
the respective companies in response to notices u/s 133(6) of the
Act issued during remand proceedings and thus we can safely
hold that the assessee discharged its onus lay upon its shoulders
to prove the identity, creditworthiness of the creditors and
genuineness of the transactions. From the relevant part of the
assessment order, we observe that the AO merely proceeded to
make addition under section 68 of the Act keeping aside all the
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 24 of 29 relevant documents, which were filed by the assessee and the
alleged companies. Accordingly, we have no hesitation to hold
that we are unable to see any ambiguity, perversity or any other
reason to interfere with the first appellate order which granted
relief to the assessee. Hence, we uphold the same. Accordingly,
ground Nos. (ii) and (iii) of the Revenue, being de void of merit,
are dismissed.
In the result, the appeal of the Revenue is dismissed.
Cross Objection No16/Ind/2014/A.Y. 2008-09 by the
assessee:
Ground No.1 relates to maintaining disallowance of Rs.
31,90,080 being commission expenses claimed by the
assessee.
This ground had been dealt with in ground No.(i) of Revenue
appeal wherein the disallowance maintained to Rs.31,90,080 by
the Ld. CIT (A) have been directed to be deleted, hence, for the
reasons as discussed therein, this ground no. 1 and 1.1 of
appeal in the Cross Objection of the assessee is allowed.
Ground No. 2 relates to maintaining addition of Rs. 15,00,000 on account of M/s. Plasia Leasing & Investment Pvt. Ltd. whereas the confirmed was filed hence, confirmation of addition is bad-in-law and hence, be deleted.
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 25 of 29 Similarly disallowance of interest of Rs. 30,685 may also be deleted. 24. The Ld. AR submitted that the assessee had submitted the
copy of confirmation with PAN (PB-173-178) and said company is
assessed to tax at Ujjain. The amount has been received by
cheques on which interest has been paid and TDS was done,
hence, no addition should have been sustained. Further, the
Tribunal in the case of ACIT v. Pravin Mittal [2016] 28 ITJ 473
(Trib-Indore) had allowed the appeal of the assessee for deposit
from Lunkad group of companies, by the tribunal, hence, the
addition of maintained by the Ld. CIT (A) deserve to be deleted.
The Ld. AR submitted that the ratio of the decision of the Hon'ble
Madhya Pradesh High Court in the case of Rathi Finlease Limited
(supra) is not applicable to the present case as it is related with
share application money and the share applicants were not found
to be in existence and in that case, amounts were paid in cash on
the same dates on which the amounts were credited to the bank
accounts of such applicants. The Ld. AR further submitted that
other decisions of the Hon'ble High Court, as relied upon by the
learned DR, do not apply to the present case having distinct facts
and circumstances.
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 26 of 29 25. On the other hand, the ld. Sr. DR submitted that said
company is found to be paper company and addition related o
said company is also upheld by the Hon`ble Jurisdictional High
Court in the case of CIT v. Rathi Finlease Ltd. [2008] 215 CTR
(MP) 429. Therefore, the Ld. CIT (A) was justified in confirming
the addition in the case of said creditor. We have heard the rival
submissions of both the parties and perused the material
available on record. We also find that Ld. CIT (A) has also
confirmed the addition in the case of this company on the ground
that the assessee has not able to file copy of bank account and
other details. We also observe that the Ld. Sr. D.R. has
contended that Hon'ble High Court of Madhya Pradesh in the
case of CIT v. Rathi Finlease Ltd. [2008] 215 CTR (MP) 429 has
sustained the addition under section 68 of the Act in respect of
M/s. Plasia Leasing & Investment Pvt. Ltd. In para 11, the
Hon'ble High Court held that in the case of Palasia Leasing &
Finance Company, entry was not accepted on the ground that
merely by filing the confirmation letter, the burden could not be
discharged when the inquiries reveal that the company was not
in existence nor any books of accounts or directors were
traceable. Therefore, respectfully following the same, in and in
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 27 of 29 absence of relevant details like confirmations, copy of account of
this company, copy of relevant extract of bank account, copy of
account in the books of the assessee, the assessee has failed to
establish the identity, genuineness of transaction, existence and
creditworthiness of this company and failing to respond to notice
under section 133(6), we upheld the addition on account of cash
credit in respect of this company as unexplained under section
68 of the Act in the light of the ratio of the decision of the
Hon'ble Madhya Pradesh High Court in the case of Rathi
Finlease Limited (supra). Accordingly, Ground No. 2 of Cross
Objection of the assessee is therefore, dismissed.
Ground No. 3 related sustenance of disallowance of amount of interest of Rs. 49,585 under section 36(1)(iii) or in the alternative the AO may be directed to allow in subsequent years. 27. Facts apropos of this ground are that the assessee has
raised loans during the year for capital work in progress of
building construction of Rs. 4,95,856 as the building has not
been put to use during the year under consideration. Hence,
interest attributable to Rs.4,985 being @10% on capital work in
progress of Rs. 4,95,856 was disallowed under section 36(1)(iii) of
the Act.
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 28 of 29 28. The CIT (A) observed that the appellant has raised this
ground for the sake of it for which no details of loans and for the
purpose for which these were provided nor any argument were
filed. Hence, disallowance of interest was confirmed.
The Ld. AR submitted that disallowance of interest is bad-
in-law as the building was not under construction but expenses
were debited after 30-09-2006. The assessee has claimed
depreciation, which has been allowed as deduction by the
assessee. The building has been put to use during the year under
consideration and as such, disallowance of interest is not called
for.
The Ld. Sr. D.R. relied on order of lower authorities.
We have heard the rival submissions of both the parties and
perused the material available on record. The perusal of
Annexure -C, forming part of Form No. 3 CB (PB- 11& 20
)showed that that the assessee had shown addition of Rs.
4,95,856 after 30.09.2006 to building account on which
depreciation has been claimed and allowed by the AO. Thus, it is
discernible that there is work in progress on account of building
construction account; hence, disallowance on account of interest
on addition to building account is not justified. Therefore, the AO
DCIT v 1(1) v Modern Laboratories / I. T. A. No. 277/Ind/2014& CO.No.16/Ind/2014/AY:08-09 Page 29 of 29 is directed to delete such disallowance of interest expenses. We order accordingly. This ground of appeal is thus, allowed. 32. In the result, the CO of the assessee is partly allowed. 33. In the result, the appeal of the Revenue is dismissed and Cross Objection of the assessee is partly allowed. 34. The order pronounced in the open Court on 10th August 2017. Sd/- Sd/- ( C.M. GARG) (O.P. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER �दनांक /Dated :10th August 2017 Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file. By order
Assistant Registrar, Indore