2018 (10) TMI 1888 - AT - Income Tax

Undisclosed income - receipt not included in the Profit Loss Account of the assessee - As contractual receipt under Marketing Assistance Programme (MAP) as per Agreement executed between it and Exxonmobil Lubricants Pvt. Ltd. the assessee submitted that this amount was to be passed on to the customers (sub-distributors) as incentive - as further explained with reference to the MAP Agreement that the assessee was receiving financial assistance as upfront payment on the condition that the same was to be passed on to the customers and no part was to remain with it as income - HELD THAT - Exxonmobil Lubricants Pvt. Ltd., has a right to demand immediate payment if the conditions given are violated. First Schedule to the Agreement provides that the effective date of MAP Agreement is 01.06.2010 and the maturity date is 31.05.2011. Similarly, there is next Agreement for ₹ 21.25 lac, whose effective date is 1 st July, 2010 and maturity date is 30th June, 2011. Similar is the position in so far as the effective and maturity dates of other two Agreements are concerned. Total amount under these four Agreements comes to ₹ 1,91,65,000/-, which pertains to part of the year under consideration and the remaining part to the subsequent year. The assessee, in turn, is passing over the amount of incentive given under the MAP Agreement to the sub-distributors at the time of their lifting the goods, which payment, during the year, totaled at ₹ 1.29 crore and odd. The remaining amount of ₹ 62.03 lac will be adjusted against payment to be made in the subsequent year by the sub-distributors at the time of their further purchase. MAP payment received by the assessee comes with certain conditionalities, such as, the assessee has to provide bank guarantee and there is an obligation to lift the stocks. In case the assessee does not succeed in lifting the stock etc., the proportionate part would not be available to it for onward payment to sub-contractors. The assessee has been consistently following this practice of accounting the amounts under MAP Agreement and the same has been accepted in the assessments completed u/s 143(3) for the two immediately preceding assessment years, namely, 2009-10 and 2010-11. CIT(A) has recorded a categorical finding to this effect which has not been controverted by the ld. DR. In the absence of any factual difference in the manner of receipt, disbursement or accounting of the marketing assistance payment received under the MAP Agreements in the preceding year vis- vis the year under consideration, we are satisfied that the ld. CIT(A) rightly appreciated the facts and was justified in deciding this issue in favour of the assessee. We, therefore, uphold the same. Disallowance of commission to Smt. Inderjeet Kaur and Smt. Parvinder Kaur - HELD THAT - As found that the assessee failed to lead any evidence about the genuineness of transactions of payment to these two ladies. The ld. AR explained the nature of such payments by explaining that some sub-distributors insisted on making payment to these two ladies as a part of their incentive under the MAP Agreement. It, therefore, becomes manifest that such commission is simply a part of the payment made to the distributors which was received by the assessee under the MAP Agreements from Exxonmobil Lubricants Pvt. Ltd. for onward payment to customers. Since the assessee is neither offering the receipt of incentive from Exxonmobil Lubricants Pvt. Ltd., as income, nor payments made to sub-distributors as expense, a part of such payment, termed as commission, to these two ladies cannot, therefore, cannot have a different shade from the angle of deductibility. It is further observed that the assessee failed to adduce any evidence of rendering of services by these two ladies, which necessitated it to make such payments. We, therefore, uphold the impugned order on this score.

Summary

Issues:
1. Deletion of addition of ?62,03,670/- made by the Assessing Officer.
2. Disallowance of a sum of ?8 lac paid as commission.

Analysis:

Issue 1: Deletion of addition of ?62,03,670/-
The Revenue raised an issue against the deletion of the addition made by the Assessing Officer regarding the amount received by the assessee from Exxonmobil Lubricants Pvt. Ltd. The assessee claimed that the amount received was a liability under the Marketing Assistance Programme (MAP) agreement and was to be passed on to sub-distributors as an incentive. The Assessing Officer treated the differential amount of ?62,03,670/- as income of the assessee and included it in the total income. However, the CIT(A) accepted the assessee's explanation and ordered the deletion of the addition. The Tribunal examined the relevant agreements and found that the amount received by the assessee was part of the MAP Agreements and was to be passed on to sub-distributors. The Tribunal noted that the assessee had consistently followed this practice in previous assessments, and there was no factual difference in the accounting of the amount. Therefore, the Tribunal upheld the CIT(A)'s decision in favor of the assessee.

Issue 2: Disallowance of ?8 lac paid as commission
The assessee's appeal challenged the disallowance of a sum of ?8 lac paid as commission to two individuals. The assessee failed to produce evidence of the genuineness of these transactions, resulting in the disallowance upheld by the CIT(A). The Tribunal observed that the payments to the individuals were part of the incentive payments to sub-distributors under the MAP Agreement. Since the assessee did not treat the receipt of incentive or payments to sub-distributors as income or expenses, respectively, the commission paid to the individuals was considered as part of the distributor payments. The Tribunal noted the lack of evidence regarding the services rendered by the individuals, which justified the disallowance. Therefore, the Tribunal upheld the CIT(A)'s decision on this issue.

The Tribunal dismissed the other grounds not pressed by the assessee's representative, leading to the dismissal of both the assessee's and the Revenue's appeals.