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Income Tax Appellate Tribunal, “D”, BENCH
Before: SHRI S.S. GODARA, JM & DR. A.L.SAINI, AM
Assessee by : Shri U.Dasgupta, AR Revenue by : Shri S.M.S.Tauheed, Addl. CIT, Sr.DR सुनवाई क� तार�ख / Date of Hearing : 05/06/2018 घोषणा क� तार�ख/Date of Pronouncement :29/08/2018 आदेश / O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned appeal filed by the assessee, pertaining to assessment year 2012-13, is directed against the order passed by ld. Commissioner of Income Tax (Appeals)-10, Kolkata in Appeal No.132/CIT(A)-10/Wd-34(2)/2012-13/Kol dated 28.07.2016, which in turn arises out of an order passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (in short, ‘the Act’), dated 26.03.2015.
The grievance raised by the assessee are as follows : 1) For that the order of the Ld. CIT ( A ) is arbitrary, excessive, and hence bad in law. 2) For that on the facts of the case the Ld. CIT (A) was not legally justified in sustaining the addition of Rs. 30,08,787/- being credit notes, received from Hindusthan Unilever Ltd. on A/c of damaged goods, when the same is already subjected-to taxation as part of taxable turnover, and the addition wrongly made may please be deleted. 3) For that on the facts of the case the Ld. CIT (A) was not legally justified in sustaining the addition of Rs. 46,71 ,583/- , being the amount expended on A/c of advertisement and sales promotion, ( through the retailers) ,duly supported by documentary evidence, and incurred wholly. exclusively and fully for business purpose, may please be deleted.
2 Amiya Kumar Samanta 4) For that on the facts of the case neither the Ld. CIT ( A) nor the A.O. , understood the accounting entries in the books of accounts and the additions made on both counts are liable to be deleted. 5) For that the assessee craves leave to add, alter, amend any further grounds of appeal before or at the time of hearing.”
In this appeal the assessee has raised two substantive grounds of appeal. One relates to credit notes received from Hindusthan Unilever Ltd of Rs.30,08,787/- and another addition relates to amount of expenditure on advertisement and sales promotion of Rs.46,71,583/-. Since both the issues are common and interlinked therefore we adjudicate these grounds together.
The brief facts qua the issue are that the assessee is an individual and has been engaged in carrying on his proprietary business under the name and style of “Sreema Enterprise”. The assessee is distributor of products of M/s Hindustan Unilever Ltd, and he is doing marketing of its products pursuant to the marketing policy of the said company. The M/s Hindustan Unilever Ltd, used to offer many incentives to the Retailers, in respect of its products, through the Distributors, for promotion of sale. While making the assessment for the assessment year 2012-13, the assessing officer added a total sum of Rs.76,83,370/- to the returned income, the details of which are given below: (1). On account of credit notes issued by Hindustan Unilever Ltd for damaged goods in the hands of the Retailers ( HUL, party) and returned back to HWL`s Godown at Dankuni through carrier, Rs.30,08,787/- (2) Amount claimed to have been spent by Retailers (HUL party) for sale promotion and Banner Display, Rs.46,71,583/-.
The assessing officer noted that the assessee paid these above noted amounts to Retailers without making any entry in the sales bills issued, therefore these expenses were bogus. During the assessment proceedings, the assessee was asked to explain with documentary evidences as to how the claim of Rs. 76,80,370/- is relating the business of the assessee.
3 Amiya Kumar Samanta In response, the assessee submitted that the purchase and sale figures have been grossed up in profit and loss account which has no impact in profit. The assessee submitted that considering the nature of business carried on by the him, buyers often return goods to the assessee for adjustment with evidences for return of goods for various reasons. During the assessment proceedings, the assessee submitted some evidences of goods returned by parties. The assessee in turn raised debit notes against return of goods from buyers and Xerox copies of few debit notes were submitted before the AO. The Hindusthan Unilever Ltd raised credit note in favour of the assessee against the debit notes raised by the assessee. The Hindusthan Unilever Ltd controls both purchase and sales of the assessee. They allow credit for all claims only on proper verification of their records. Total claims received for credit notes during the year was to the tune of Rs.30,08,786/- which was supported by credit notes issued by Hindusthan Unilever Ltd. The assessee also demonstrated the claim received and claim paid accounts in the general ledger. Another amount of Rs.46,71,583/- (1,21,11,806 – 44,31,436 – 30,08,787), is adjusted for display and business promotion purpose. The assessee has been dealing with 1400 retailers. The assessee had to bear Rs.200/- to Rs.300/- per Month for each shop to push products of Hindusthan Unilever Ltd in the market. This is the customary practice in this wholesale type of business. Otherwise the wholesaler cannot retain his retailers. For example, suppose the assessee sells goods for Rs.18,560/- to a party but the party (Debtor) pays only Rs.18,000/-. So the difference of Rs.560/- is less received by the assessee. Unless this practice is followed, it is very difficult to compete in the market. Adjustment for Rs.560/- is made by debiting claims paid account and crediting sundry debtors account. The reconciliation statement submitted by the assesee to the AO are given below :- “Claim Received Rs.1,21,11,806 Claim Paid Rs.1,21,11,806
4 Amiya Kumar Samanta Break-up Claims Paid 1.Adjustment for scheme and discounts Rs.44,31,436/- 2.Credit Notes for damage claims Adjusted through party ledgers Rs.30,08,787/- 3.Adjustments for display and business Promotion for sundry debtors Rs.46,71,583/- Rs.1,21,11,806/- The assessee submitted during the assessment proceedings that in reality the entire claims and discounts received from M/s Hindusthan Unilever Ltd are enjoyed by the sundry debtors of the assessee. However, the AO rejected the contentions of the assessee and observed that the assessee has failed to explain these expenses as the assessee does not maintain individual ledger account for these expenses and therefore ld AO made addition to the tune od Rs. 76,80,370/-( Rs.30,08,787 + Rs.46,71,583).
Aggrieved by the stand so taken by the ld AO, the assessee carried the matter in appeal before the ld. CIT(A), without any success. The ld. CIT(A) confirmed both the additions made by the AO. The ld CIT(A) noted that there is no merit in the claim of the assessee that the claim on account of damage or otherwise are being allowed to his retailers over and above the claim being allowed through sales bills. The assessee does not maintain any individual ledger account of the retailers in the books. The ld CIT(A) noted that all the claims including claims on account of damage allowed to the retailers are covered in the amount of Rs.44,31,436/-, therefore, ld CIT(A) confirmed the disallowance of Rs.30,08,787/-.
The ld CIT(A) noted that the Ld AO has reached the inevitable conclusion that all the claims including claims on account display and business promotion allowed to the retailers are covered in Rs.44,31,436/- as can be verified from the sales invoices generated through computer system connected to Hindustan 5 Amiya Kumar Samanta Unilever Ltd. Accordingly, the Ld AO has disallowed the amount of Rs.46,71,583/- made as a claim given to the retailers for display and business promotion out of claim received from HUL. The assessee has been unable to counter, even one bit the reasons recorded by the, Ld. AO, which are borne of the examination of the accounts of the assessee, that the claims have been covered in the amount of Rs,44,31,436/-, and the assessee would not be eligible for any further deduction. Therefore, ld CIT(A) confirmed the addition of Rs. 46,71,583/- .
Aggrieved by the order of the ld. CIT(A), the assesee is in further appeal before us.
The ld. Counsel for the assessee begins by pointing out that purchase and sales figures have been grossed up in the profit and loss account which has no impact in profit. In this nature of business carried on by the assessee, buyers often return goods to the assessee, for adjustment with evidences for return of goods for various reasons. Few evidences of goods returned by parties were submitted by the assessee during the assessment proceedings. The assessee in turn raised debit notes against return of goods from buyers and Xerox copies of few debit notes were submitted before the AO. The Hindusthan Unilever Ltd raised credit note in favour of the assessee, against the debit notes raised by the assessee. The Hindusthan Unilever Ltd, controls both purchase and sales of the assessee. They allow credit for all claims only on proper verification of their records. Total claims received for credit notes, during the year, was to the tune of Rs.30,08,786/-which was supported by credit notes issued by Hindusthan Unilever Ltd. The ld Counsel submitted that another amount of Rs.46,71,583/- i.e. balance of (Rs.1,21,11,806 – Rs.44,31,436 – Rs.30,08,787) was adjusted for display and business promotion purpose. The assessee has been dealing with 1400 retailers. It is worth mentioning here that the assessee had to bear Rs.200/- to Rs.300/- per Month for each shop to push products of Hindusthan Unilever Ltd in the market. This is the customary practice in this wholesale type of business. Otherwise the 6 Amiya Kumar Samanta wholesaler cannot retain his retailers. The assessee has explained that the assessee in order to retain his retailers and compete in the market accepts less payments being given by the retailers than the bill amount. The assessee has further explained that in festive seasons the retailers make contributions towards social functions being organised by the local club, association etc and display banners of HUL in these functions and they realise the expenditure from the assessee by making less payment than the bill amount. Therefore, the ld Counsel prayed the Bench to allow these expenses.
On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity.
We have given a careful consideration to the rival submissions and perused the material available on record, we note that M/s Hindusthan Unilever Ltd (HUL) raised credit notes in favour of the assessee only on proper verification of their report. The HUL never allowed damage claim on their own accord and sweet will. The Salesmen are mostly illiterate. Sometimes goods are received back for replacement on verbal assurance by the salesmen. In any case, HUL never issued credit notes without evidence and proper verification of claim. In assessee’s business scenario it happened many a times that retailers may not accept goods as per invoice for various reasons. So they return the same to the Distributor (Assessee). The assessee, in turn through software, communicates the same to HUL. In turn HUL on receipt of intimation through software show in the date- wise sales register and sales return. We note that the purchase and sales return have not been shown on the face of the account. Both purchase and sales returns have been deducted from purchases and sales which has no impact on profit.
We note that credit notes have been produced before the AO during the assessment proceedings as well as appellate proceedings. We note that as regards claim of Rs.46,71,583/- allowed to the retailers, it was on account of adjustment for display and business promotion. The assessee in order to retain his retailers
7 Amiya Kumar Samanta and compete in the market, accepts less payments being given by the retailers than the bill amount. On festive seasons, the retailers make contributions towards social functions being organised by the local club, association etc and display banners of HUL in these functions and they realise the expenditure from the assessee by making less payment than the bill amount. The assessee also stated that the receipts for actual expenditure cannot be obtained from the retailers since the practice of issuance of receipts generally is not in vogue. We note that neither the ld. CIT(A) nor the AO brought any evidence on record to disprove that display and business promotion expenditure incurred by the assessee. The ld AO and ld CIT(A) both have failed to demonstrate that debit notes issued by assessee in favour of HUL and credit notes issued by HUL in favour of assessee are bogus and not supported by books of accounts . The AO has also not brought any cogent evidence to show that the addition to the tune of Rs.30,08,787/- is bogus and without making any entry in the books of accounts in respect of debit notes and credit notes. We note that the ld AO has not rejected the books of accounts of the assessee and he has accepted the profit declared by the assessee. Considering the nature of the business and the products involved, it is necessary for the assessee to incur expenses on display and business promotion. If the assessee does not incur expenses on business promotion, the product will not be sold in the market and there would be business loss. Therefore, considering the aspect of commercial expediency and customs prevailing in the retail trade, we note that the assessee has to incur these expenses, in order to run the business and these expenses are related to the business activity. The assessee has been dealing with approximately 1400 retailers, and that the assessee had to bear Rs.200/- or Rs.300/- per month for each Shop (Debtor) to push products of M/s Hindustan Unilever Ltd. in the market, and this is a customary practice in this type of wholesale trade. Otherwise the wholesaler cannot retain his retailers.
We note that the assessee has proved the bona fide of his claim by submitting the ledger account, debit notes, credit notes. We also note the practice prevailing in the market in retail trade. Considering all the facts and circumstances and 8 Amiya Kumar Samanta Rs. 76,80,370/-( Rs.30,08,787 + Rs.46,71,583).
In the result the appeal by the assessee is allowed.
Order pronounced in the open court on this 29.08.2018. Sd/- Sd/- (S.S. GODARA) (DR. A. L. Saini) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; Dated: RG, SPS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : अपीलाथ� / The Assessee- Amiya Kumar Samanta 1. ��यथ� / The Respondent.- ITO, Ward-34(2), Kolkata 2. आयकर आयु�त(अपील) / The CIT(A)-10, Kolkata. 3. आयकर आयु�त / CIT-5, Kolkata. 4. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कोलकाता 5. / DR, ITAT, Kolkata गाड� फाईल / Guard file. 6.