2021 (4) TMI 580 - AT - Income Tax

Disallowance of commission - Non - appearance of the said commission agents in person before the Ld. AO - AO Disallowed the commission payments claimed by the assessee based on the assessment order for the Assessment Year 2011-12 - On appeal, the Ld. CIT(A) deleted the additions made in that year - HELD THAT - CIT(A) had deleted the addition based on the findings of his predecessor for the Assessment Year 2011-12 2018 (11) TMI 1843 - ITAT KOLKATA wherein held is empowered under the law to take necessary action against these commission agents for non-compliance to the summons issued to Section 131 of the Act. The Statute provides for relevant remedial measures thereon. The Ld. AO without resorting to such measures, cannot proceed to disbelieve the claim of commission paid by the assessee when the same are supported by various documents and confirmed by the said parties. In the instant case, the primary onus has been duly discharged by the assessee proving the claim of commission payments made by the assessee. There is absolutely no reason for the Ld. AO to doubt the veracity of the said transactions. Admittedly none of the commission agents were relatives of the assessee or interested parties with the assessee so as to allege some mala fide on the part of the assessee. Hence, in our considered opinion, there is no case made out by the Ld. AO to treat the commission transactions as ingenuine transactions in these facts and circumstances.. Non - appearance of the said commission agents in person before the Ld. AO would not make the transaction of payment of commission as ingenuine. Hence, we hold that the Ld. CIT(A) had rightly deleted the disallowance of commission made by the Ld. AO The ld. D/R could not distinguish these case law on facts. Hence we find no infirmity in the order of the ld. CIT(A) on the issue of addition of commission payments and uphold the same and dismiss this ground of the revenue for both the Assessment Years. Unsecured loans - Unexplained cash credit U/s. 68 - HELD THAT - As decided in assessee's own case confirmation and details chart were field before the AO at the time of both the remand proceedings. The AO did not made any specific addition on unsecured loans and only addition of difference of opening and closing balance were made by him. There is no adverse comments made by the AO on merit on the loans and no specific negative observation were made on the addition as made by him in the assessment order. In view of above; the AO is directed to delete the addition. Unexplained cash deposits in banks - HELD THAT - The Ld. CIT(A) has given a factual finding that all these cash deposits in bank, were recorded in the regular books of accounts and the details of the same furnished to the Assessing Officer. As these deposits are part of the regular books of accounts, the addition was deleted by the Ld. CIT(A). We find not infirmity in the same. Thus, we uphold this factual finding of the Ld. CIT(A), which is not controverted by the Ld. D/R and dismiss this ground of the revenue for both the Assessment Years. Unexplained trades payable - Trade payables arise on account of credit purchases of goods or services. The purchases and sales of the assessee were not disturbed. The arbitrary addition has be made of the trade creditors. Even credit purchases made from ITC Limited, were added. This is highly arbitrary - HELD THAT - As decided in own case name and addresses were again filed along with the written submissions twice at the time of remand report stage. These creditors also appeared in earlier years and their addresses were available in the list for the assessment year 2011-12 and 2013-14 yet no verification was made it the time of assessment and no adverse comment have been made in the remand report. The AO did not made any specific addition on trade payables and only addition of difference of opening and closing balance were made by him. There is no adverse comments made by the AO on merit on the trade payables and no-specific negative observation were made on the addition as made by him in the assessment order. In view of above, the AO is directed to delete the addition. Addition on account of estimation of profit - HELD THAT - As decided in own case AO did not mentioned in his order what are the mistakes in the books of accounts of the appellate company, the AO has also not pointed out the issues of deviation from the method of accounting provided in section 145(1) or income has not been computed in accordance with the standard notified under section 145(1) of the act. There was nothing on record to show that the assessing officer come to the conclusion that the books of accounts maintained by the appellate were incorrect, incomplete, unreliable and consequently liable for rejection. The gross profit of the appellate company for the year 2013-14 was 4.30 % as against the gross profit of 4.08% in the preceding year i.e. 2011-12 and it was 4.10% in the year 2014-15. The AO has also separately added ₹ 69,70,413/- as income from other sources which was part of the business receipts. In fact, in the comparative statement filed before the AO as called for by him, the computation of net profit and gross profit have been made by including such income. The AO should have started his computation or the return income and further add all the addition/disallowance made by him in the assessment order. Keeping in view of above, the AO is directed to delete these addition Addition on account of current liabilities - HELD THAT - The elaborate submissions have been made in the written submissions filed twice and all the details and evidences were filed. No adverse comment has been made in the two remand reports. Details of each and every item and head wise detail of the current liabilities was filed. Each and every head of the current liability was explained in the written submissions filed twice. There is no adverse comment of the AO. No such additions were ever made. The details of other current liabilities were again filed along with the written submissions twice at the time of remand report stage. The AO did not made any specific addition on trade payables. There is no adverse comments made by the AO on merit on the other current liabilities and no specific negative observation were made on the addition as made by him in the assessment order. In view of above, the AO is directed to delete the addition.

Summary

Issues Involved:
1. Deletion of trade payables.
2. Deletion of unsecured loans.
3. Deletion of unexplained cash credits.
4. Deletion of commission payments.
5. Deletion of other income.
6. Deletion of additional net profit.
7. Deletion of proceedings under Section 144.
8. Deletion of current liabilities.
9. Foreign exchange loss.
10. Depreciation on new assets.

Issue-wise Detailed Analysis:

1. Deletion of Trade Payables:
The Ld. CIT(A) deleted the addition of ?3,12,66,706/- for AY 2013-14 and ?4,36,97,031/- for AY 2014-15 on account of trade payables. The CIT(A) found that the Assessing Officer (AO) did not properly verify the addresses of the creditors and failed to enforce their attendance despite notices being served. The AO’s addition was deemed arbitrary as the creditors were accepted in previous assessments and no adverse findings were recorded in the remand report.

2. Deletion of Unsecured Loans:
For AY 2013-14, the AO added ?4,93,01,115/- from body corporates as unexplained cash credits, while for AY 2014-15, the AO added loans from directors and their relatives. The CIT(A) found that the AO failed to verify the details provided and accepted similar loans in other assessment years. The CIT(A) concluded that the AO’s additions were unjustified as the loans were genuine and adequately documented.

3. Deletion of Unexplained Cash Credits:
The CIT(A) deleted the addition of ?11,14,396/- for AY 2013-14 and ?92,20,409/- for AY 2014-15, stating that the cash deposits were recorded in the regular books of accounts and the details were furnished to the AO. The AO’s addition was deemed baseless as the deposits were part of regular business transactions.

4. Deletion of Commission Payments:
The AO disallowed commission payments based on previous assessments. The CIT(A) and the Tribunal found that the assessee provided sufficient evidence to substantiate the commission payments. The Tribunal upheld the CIT(A)’s deletion of the additions, citing precedents where similar disallowances were overturned due to lack of evidence against the genuineness of the transactions.

5. Deletion of Other Income:
The CIT(A) deleted the addition of ?1,68,80,801/- for AY 2013-14 and ?69,70,413/- for AY 2014-15, which the AO had separately added as other income. The CIT(A) found that these amounts were part of the business receipts and had been consistently treated as such in previous years.

6. Deletion of Additional Net Profit:
The AO estimated net profit at 2% of gross receipts, resulting in an addition of ?2,53,82,407/- for AY 2013-14 and ?2,96,05,303/- for AY 2014-15. The CIT(A) found that the AO did not point out any specific discrepancies in the books of accounts and ignored the assessee’s past records. The CIT(A) concluded that the AO’s estimation was arbitrary and not based on any substantive evidence.

7. Deletion of Proceedings under Section 144:
The AO completed the assessments under Section 144 due to alleged non-compliance by the assessee. The CIT(A) found that the assessee had, in fact, provided all necessary details and the AO failed to consider the evidence. The Tribunal upheld the CIT(A)’s decision to delete the proceedings under Section 144, as the AO did not properly examine the information provided.

8. Deletion of Current Liabilities:
For AY 2014-15, the AO added ?11,86,90,207/- as current liabilities. The CIT(A) found that the details of these liabilities were provided and were part of regular business transactions. The AO did not bring any evidence to suggest that the liabilities were not genuine. The Tribunal upheld the CIT(A)’s deletion of the addition.

9. Foreign Exchange Loss:
The AO treated a foreign exchange loss of ?50,43,859/- as speculation loss. The CIT(A) found that the loss was incurred in the regular course of business and was duly certified by the auditor. The CIT(A) directed the AO to delete the addition, and the Tribunal upheld this decision, citing relevant case law.

10. Depreciation on New Assets:
The AO disallowed depreciation on new assets amounting to ?5,46,645/- for plant and machinery and ?2,76,990/- for computers. The CIT(A) found that the purchases were reflected in the tax audit report and certified by the auditor. The CIT(A) directed the AO to verify the claim and allow the depreciation if found correct. The Tribunal upheld this direction.

Conclusion:
The Tribunal dismissed the revenue’s appeals and upheld the CIT(A)’s order on all counts, finding that the AO’s additions were arbitrary and not based on proper verification of the evidence provided by the assessee. The cross-objection filed by the assessee was also dismissed as it was merely in support of the CIT(A)’s order.