2013 (11) TMI 306 - AT - Income Tax

Undisclosed receipts - Freight payment made on behalf of the suppliers of the goods - Held that - assessee acts as an agent for the sellers of vegetables from different parts of the country cannot be faulted with. However on the submissions that the assessee has deducted TDS of an amount higher than Rs.14,091/- which infact was the amount reflected in scheduled G of Tax Audit Report referred only to belated payments no findings have been recorded by the CIT(A). Similarly, what was the total amount of TDS deducted by the assessee on payments exceeding Rs.20,000/- and what were the sum total of the freight account which pertained to payments less than Rs.20,000/-, no finding has been recorded. It is also seen that the assessee has also advanced general arguments referring to trade practice and has assailed the finding in the assessment order qua the TDS but what was the actual amount on which no TDS was required to be deducted has not been addressed by the assessee. Mere assertion that it was more than Rs.14,091/- is not sufficient. The position in law qua the requirement of deduction of TDS u/s 194C for less than and more than Rs.20,000/- is clear but what was the actual position on facts has not been addressed. It is seen that the assessee has relied upon the position of 2008-09 assessment year wherein no such addition has been made the argument of the DR that evidences filed may not have been insufficient and any way merely because the AO has not addressed the aspect and this year it has been addressed in detail and thus the argument that each year is a separate year has merit however consistency on the issue to our minds also has equal merit in the eyes of law. No specific findings has been given by the CIT(A) on this assertions. The position in law is clear but the position on fact has to be demonstrated on the ground level. Accordingly since the issue of freight payments would be a recurring issue, the past position needs to be ascertained. Accordingly on account of these factual discrepancies/deficiencies on which the Ld. CIT(A) has not come to any finding - Decided in favour Revenue - matter remanded back.

Summary

Issues Involved:
1. Deletion of addition of Rs.78,79,967/- as undisclosed receipts.
2. Non-clarification by the assessee with relevant supporting evidences.
3. Determination of whether the assessee should be treated as a trader or a commission agent.
4. Treatment of freight payments and receipts in the Profit & Loss account.
5. Deduction of TDS on freight payments.

Issue-wise Detailed Analysis:

1. Deletion of Addition of Rs.78,79,967/- as Undisclosed Receipts:
The CIT(A) deleted the addition of Rs.78,79,967/- made by the AO, who had treated the freight receipts as undisclosed income. The CIT(A) concluded that the assessee acted as a commission agent, and the freight collected from vegetable vendors was neither the assessee's income nor its expenditure. The AO's action of treating the aggregate freight received as undisclosed receipts and allowing only 50% as reasonable expenditure was not upheld. The CIT(A) directed the AO to delete this addition.

2. Non-clarification by the Assessee with Relevant Supporting Evidences:
The AO observed that the assessee's freight account showed substantial receipts credited daily, but the supporting vouchers for these entries were not produced. The assessee provided an affidavit and sample advice explaining that the freight was paid on behalf of vegetable suppliers and did not form part of the assessee's expenses. The CIT(A) found this explanation consistent with the trade practice and supported by evidence from the Agriculture Produce Market Committee (APMC), confirming the assessee's role as a commission agent.

3. Determination of Whether the Assessee Should Be Treated as a Trader or a Commission Agent:
The CIT(A) examined the provisions of section 182 of the Indian Contract Act, 1872, and concluded that the assessee was a commission agent acting on behalf of principals who supplied vegetables. The CIT(A) relied on evidence from APMC and the assessee's consistent business practice to support this conclusion. The AO's view that the assessee understated its gross receipts by not including freight in the Profit & Loss account was considered irrelevant.

4. Treatment of Freight Payments and Receipts in the Profit & Loss Account:
The AO argued that freight receipts and payments should be included in the Profit & Loss account. The CIT(A) disagreed, stating that the inclusion would not materially affect the income tax assessment as both sides would match. The CIT(A) found that the assessee's practice of not routing freight through the Profit & Loss account was consistent with its role as a commission agent.

5. Deduction of TDS on Freight Payments:
The AO questioned the adequacy of TDS deducted by the assessee on freight payments, suggesting that the TDS amount should have been around Rs.7 lakhs. The assessee argued that TDS was deducted only on payments exceeding Rs.20,000/-, and the figure of Rs.14,091/- reflected belated payments. The CIT(A) did not provide specific findings on the total TDS deducted or the amounts on which TDS was not required. The Tribunal noted this deficiency and directed the CIT(A) to provide specific findings and refer to supporting evidence.

Conclusion:
The Tribunal restored the issue to the CIT(A) to address the factual discrepancies and provide specific findings on the TDS deduction and the assessee's claim. The appeal of the revenue was allowed for statistical purposes, and the CIT(A) was directed to give specific findings and refer to supporting evidence regarding the assessee's claim.