No section 68 Addition if Asessee proves Genuineness & Creditworthiness of Creditors

Prayag Polytech Pvt. Ltd. Vs Addl. CIT. (ITAT Delhi)

The issue under consideration is whether the addition on account of advances from customers treating the same as unexplained liability is justified in law?

In the present case, the AO made the addition u/s 68 stating that the assessee could not prove the transaction u/s 68 and hence, in absence of identity, genuineness and credit worthiness of the customers who have given advances, this addition was rightly done.

ITAT states that the assessee has produced relevant documents before the Assessing Officer but the Assessing Officer has not taken any cognizance of these documents. In fact, the assessee duly filed the details of advances received from customers alongwith the details of current liabilities and also the sales invoices raised in the subsequent years and the record shows that these advances have been cleared in the subsequent years. Thus, the genuineness, creditworthiness and identity of the customers in fact was proved by the assessee. Therefore, this disallowance was not proper on part of the Assessing Officer as well as the CIT(A). Hence, the appeal filed by the assessee is allowed.

FULL TEXT OF THE ITAT JUDGEMENT

This appeal is filed by the assessee against the order dated 10/07/2019 passed by Commissioner of Income Tax (Appeals)-38, New Delhi for Assessment Year 2016-17.

2. The grounds of appeal are as under:-

1. “On the facts and circumstances of the case, the order passed by the learned CIT(A) is bad both in the eyes of law and on facts.

2. (i) On the facts and circumstances of the case, the learned CIT(A) is erred both on facts and in law in confirming disallowance of Rs.3,73,50,300/- made by the AO on account of following expenses treating the same as unexplained:

(ii) That the above disallowances have been confirmed despite the fact these expenses have been incurred wholly and exclusively for the purpose of the business of the assessee.

(iii) That the above disallowances have been confirmed despite the fact that the disallowances have been made by the AO by grossly indulging into surmises and conjectures without there being any basis for the same.

3. (i) On the facts and circumstances of the case, the learned CIT(A) is erred both on facts and in law in confirming the addition of Rs.1,06,20,125/- on account of advances from customers treating the same as unexplained liability.

(ii) That the above addition has been confirmed rejecting the detailed submissions and explanations alongwith the evidences brought on record by the assessee in this regard.

4. (i) On the facts and circumstances of the case, the learned CIT(A) is erred both on facts and in law in confirming the disallowance of Rs.5,67,633/- made by the AO on account of excess interest paid on loan.

(ii) That the above disallowance has been confirmed rejecting the detailed submissions alongwith the explanations made by the assessee in this regard.

5. (i) On the facts and circumstances of the case, the learned CIT(A) is erred both on facts and in law in confirming the disallowance of Rs.5,13,810/- on account of Diwali expenses incurred by the assessee.

(ii) That the above disallowances have been confirmed despite the fact these expenses have been incurred wholly and exclusively for the purpose of the business of the assessee.

6. The appellant craves leave to add, amend or alter any of the grounds of appeal.”

3. The assessee company is in the business of manufacturing of color Master Batches (plastic granules). It is a manufactures, exporters and suppliers of rotofoam master batch, color master batches, polymer processing aid master batches, carbon black master batches, additive master batches, prafil compound, pracolcolour, black master batches, roto foam powder, white master batches. The assessee company e-filed its return of income for A.Y. 2016-17 on 16.10.2016 declaring income of Rs.7,91,86,890/-. The case was selected for scrutiny and statutory notices u/s 143(2) of the Income Tax Act, 1961 were issued on 17.07.2017 and 26.09.2017 which were properly served. Thereafter, notices u/s 142(1) of the Income Tax Act, 1961 were issued on 12.01.2018, 14.09.2018, 19.11.2018 and 13.12.2018 which were properly served. In response to the notices, advocate of the assessee attended and filed the replies from time to time. The Assessing Officer made addition on account of excess interest loan at Rs.5,67,633/-, addition on account of unexplained expenses amounting to Rs.3,73,50,300/-, addition on account of unexplained Diwali expenses amounting to Rs.5,13,810/- and addition on account of unexplained liability amounting to Rs.1,06,20,125/-.

4. Being aggrieved by the assessment order, assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee.

5. The Ld. AR submitted that ground no.1 and 6 are general in nature, therefore, Ground Nos. 1 and 6 are dismissed.

6. As regards Ground no.2, relating to the disallowance of Rs.3,73,50,300/- on ad-hoc basis on account of various expenses incurred during the year, the Ld. AR submitted that the Assessing Officer disallowed expenses on the assumption that expenses increased/decreased in proportion to sales. The Ld. AR further submitted that the Assessing Officer has observed in his order that sales figure has been reduced by 5.62% i.e. from Rs.3,20,49,20,000/- in F.Y. 2014-15 to Rs.3,02,90,97,000/- in F.Y. 2015-16. On the same basis, the Assessing Officer compared expense of F.Y. 2015-16 vis-à-vis the F.Y. 2014-15. The Ld. AR submitted that the Assessing Officer held in the assessment order that while the sales have declined, there is an abnormal increase in the expenses and, thus, disallowed the expenditure which is in excess of 1.05% in comparison to F.Y. 2014-15. At the outset, the Ld. AR further submitted that the Assessing Officer has not rejected books of accounts produced by the assessee. These books are audited and no irregularity has been observed by the Assessing Officer. The Ld. AR further submitted that the Assessing Officer has neither questioned/doubted the ledger account produced by the assessee, nor he found any irregularity in the details and expenses filed. It is, thus, evident that there is no dispute about genuineness and admissibility of claim of expenses made by the assessee. The Ld. AR submitted that these expenses are incurred wholly and exclusively for the business u/s 37(1) of the Act. The reasons for the increase in the expenses as pointed out by the Assessing Officer are arbitrary and unjustified having regard to the business of the assessee. The Assessing Officer as well as the CIT(A) did not pointed out any specific expenses which do not clarify the expressions u/s 37(1) of the Act. Thus, the Assessing Officer admitted that the payments were made for such expenses. It is evident that the Assessing Officer made the disallowance in the absence of any tangible material on record. Thus, the Ld. AR submitted that this addition be deleted. The Ld. AR relied upon the following decisions:

a) Dhakeswari Cotton Mills Ltd. Vs. CIT, West Bengal, (1954) 26 ITR 775 (SC).

b) Lalchand Bhagat Ambica Ram vs. CIT 37 ITR 288 (SC).

c) CIT vs. Ms. Shehnaz Hussain 267 ITR 572 (Del).

d) J. J. Enterprises vs. CIT [2002] 254 ITR 216 (SC).

e) Vichitra Constructions Pvt. Ltd. Vs. ACIT (ITA No.5047/Del/2015 dated 27.05.2019).

7. The Ld. DR submitted that the Assessing Officer as well as the CIT(A) has rightly disallowed these expenses as the assessee could not prove the genuineness of the expenditure. Thus, the Ld. DR relied upon the assessment order and the order of the CIT(A).

8. We have heard both the parties and perused all the relevant materials available on record. It is pertinent to note that the books of accounts produced by the assessee during the course of assessment proceeding were never doubted and were not rejected. The addition is only on the basis of presumption and assumption that decrease in sales amounts to decrease in expenses. The ledger accounts were very much produced before the Assessing Officer and the same was before the CIT(A). Merely on the basis of conjecture, the ad-hoc addition cannot be made without any tangible reason to do so. Therefore, Ground no.2 is allowed.

9. As regard Ground No.3, relating addition of Rs.1,06,20,125/- on account of advances from the customers, the Ld. AR submitted that the assessee duly filed the details of advances received from customers alongwith the details of current liabilities. The documents were not doubted. The Ld. AR further submitted that these advances have been cleared in the subsequent years. The sales invoices have been raised in the subsequent years and copies of ledger accounts for three Financial Years i.e. 2014-15, 2015-16 & 2016-17 were submitted before the authorities and the assessee demonstrated that these are regular advances. The Ld. AR submitted that theses parties are regular customers and the assessee has supplied the goods to those parties in the normal course of business and these advances have been adjusted against such supply of goods in the subsequent year. Thus, there cannot be addition holding the same advances as unexplained. The Ld. AR relied upon the decision of Tribunal in case of ACIT vs. Montage Enterprises Pvt. Ltd. (ITA No.4014/Del/2011 dated 14.01.2019). The Ld. AR further submitted that this addition made is on the basis of arbitrariness and by indulging into surmises without providing any cogent reasons.

10. The Ld. DR submitted that the assessee could not prove the transaction u/s 68 and hence, in absence of identity, genuineness and credit worthiness of the customers who have given advances, this addition was rightly done by the Assessing Officer. The Ld. DR relied upon the assessment order and the order of the CIT(A).

11. We have heard both the parties and perused all the relevant materials available on records. The assessee has produced relevant documents before the Assessing Officer but the Assessing Officer has not taken any cognizance of these documents. In fact, the assessee duly filed the details of advances received from customers alongwith the details of current liabilities and also the sales invoices raised in the subsequent years and the record shows that these advances have been cleared in the subsequent years. Thus, the genuineness, creditworthiness and identity of the customers in fact was proved by the assessee. Therefore, this disallowance was not proper on part of the Assessing Officer as well as the CIT(A). Hence, Ground No.3 is allowed.

12. As regards Ground No.4, relating to disallowance of Rs.5,67,633/- on the account of excess interest paid on loan, the Ld. AR submitted that these parties are not related as per Section 40A(2) of the Income Tax Act. To demonstrate the same, the assessee pointed out related party disclosure mentioned in Note 35 of the Balance Sheet. The Ld. AR further pointed out that the assessee also does not appear in the list of related party disclosure of M/s. KLJ Resources Ltd. and M/s. Prayag Polymers Pvt. Ltd. The Ld. AR further submitted that the Assessing Officer did not question the genuineness of the loan and also did not alleged that the expense are not incurred for business purpose. The expenditure recorded in the books of the assessee were offered to Tax as income as interest received by KLJ Resources Ltd. and Prayag Polymers Pvt. Ltd. Hence, the Ld. AR submitted that the effect of disallowance would be tax neutral, and lead to double taxation of the same income. The Ld. AR further pointed out that the fair market value has to be determined having regards to the terms of the contract, which are decided keeping in view the business expediency. The Ld. AR further submitted that the additions made by the Assessing Officer are merely on the surmises and conjecture without considering the business expediency behind such expenses. The Ld. AR relied upon the following decisions:

a) S.A. Builders Ltd. vs. CIT(A), Civil appeal No.5811 of 2005 with 5812 of 2006, (2007) 288 ITR 1 (SC).

b) CIT vs. Panipat Woollen & General Mills Co. Ltd. [1976] 103 ITR 66 (SC).

c) CIT vs. Walchand & Co. P. Ltd. (1967) 65 ITR 381 (SC).

d) CIT vs. EKL Appliances Ltd. (2012) 345 ITR 241 (Del. HC)

e) Upper India Publishing House Pvt. Ltd., 117 ITR 569 (SC).

f) Motilal Laxmichand Sanghavi vs. ACIT in ITA No.3110/Mum/2018 dated 26.07.2019.

g) Harparshad and Company Pvt. Ltd. vs. ACIT in ITA No.1128/Del/2017 dated 14.10.2019.

The Ld. AR further submitted that without prejudice to the earlier submissions it should be considered that the Assessing Officer has complied with conditions stipulated in Section 40A(2) i.e. i) the payment in respect of which deduction has been claimed must have been made to a related party and ii) such payment must be excessive and unreasonable having regard to the market rate.

13. The Ld. DR relied upon the assessment order and order of the CIT(A).

14. We have heard both the parties and perused all the materials available on records. The expenses were recorded in the books of accounts of the assessee and were offered to tax as income as interest received by M/s. KLJ Resources Ltd. and Prayag Polymers Pvt. Ltd. The assessee does not appear in the list of related party disclosure of M/s. KLJ Resources Ltd. and Prayag Polymers Pvt. Ltd. It is interesting to note that the Assessing Officer neither questioned genuineness of loan nor alleged that the expenses are not incurred for business purpose. In fact, from the perusal of documents it can be seen that these expenses were incurred for business purpose only. Therefore, Ground No.4 is allowed.

15. As regards Ground No.5, relating to disallowance of Rs.5,13,810/- on the account of Diwali expenses, the Ld. AR submitted that the Assessing Officer wrongly assumed that the payment was made to M/s. MMTC Ltd is for purchase of gold items. However, it was made for purchase of low value silver coins that are generally distributed among the staff members on the occasion of Diwali. The Ld. AR submitted that the assessee during the course of assessment proceeding submitted the copy of ledger account as well as copy of confirmations from employees alongwith copy of invoice from MMTC in the name of the assessee company. The Ld. AR submitted that it is a settled principle of law that the Assessing Officer cannot question the expenditure which is incurred for the business expediency. The Ld. AR relied upon the decision of the Tribunal in case of Shri Manoj Kumar, (Prop. Shivam Corporate and Management Services) vs. ITO (ITA No.2350/Del/2016) dated 21.03.2018.

16. The Ld. DR relied upon the order of the CIT(A) and the assessment order.

17. We have heard both the parties, perused the relevant materials available on record. It is pertinent to note that these expenses were documentarily proved before the Assessing Officer, which was not questioned at the time of assessment proceedings by the Revenue authorities. Thus, these expenses are genuine and were properly claimed by the assessee. The Assessing Officer as well as the CIT(A) has not taken the cognizance of the documents. Hence,
Ground No.5 is allowed.

18. In the result, appeal of the assessee is allowed.

Order pronounced in the Open Court on This 7th Day of November, 2019.