2015 (5) TMI 425 - AT - Income Tax

Interest payable by assessee - restriction u/s 43B - disallowance exceeding the amount debited to Profit and Loss account - Held that - Considering contention raised by the assessee s counsel in the light of the order of the ld CIT(A) in respect of another similar company like assesse namely Baghpat Co-operative Sugar Mills Ltd that Sahkkar Vishes Nidi and UP Cooperative Sugar Factories Federation Ltd. are UP State Govt. Institutions and are not covered in the definition of public financial institutions as given in section 4A of the Companies Act as provided in section 43B(d) of the Act, then how can there be different view be taken in the case of assessee . In the said scenario in the interest of justice, this issue is remitted back to the file of the AO to examine whether Sh. Shankar Vishesh Nidhi is a public financial Institution as envisaged u/s 43B(d) of the Act and decide this issue afresh - Decided in favour of assessee for statistical purposes. Addition on difference in sales price of molasses - CIT(A) deleted addition - Held that - Assessee maintains regular books of accounts and the same were duly audited and no discrepancies have been spelled out or could be pointed out by the AO in the books of accounts and the same were not rejected by the AO. In the absence of any adverse material on record to show that any transaction outside books of accounts has taken place and differential sale proceeds have been received no addition can be estimated without rejection of books of account. We also find considerable cogency in the assessee s counsel contention that molasses is an excisable commodity and no movement of molasses can take place without approval from excise department, the representatives of them are stationed inside the factory premises. In the case under consideration, we find that the AO has made no adverse comment with regard to the books of account. In view of the above the addition made was rightly deleted and we confirm the same - Decided in favour of assessee. Addition on account of credit balance of creditors - CIT(A) deleted addition - Held that - CIT(A) has rightly observed that the AO has proceeded in ad hoc manner to label all creditors outstanding for more than a year as non-genuine. He has neither specified the name of the creditors, nor has he discussed the nature of transactions due to which such credit has come into existence, nor has made an enquiry with regard to such creditors. We further find considerable cogency in the assessee s counsel contention that that this is a unit of U.P. Government and all the purchases are made against bills and at time due to tight liquidity situation in the unit certain payment are delayed; that the Ld. AO in an ad hoc manner added all the credit balances without appreciating the fact that payments in issue were made in subsequent years and settled and adjustments were made in subsequent years; And that the AO has nowhere doubted the genuineness of these creditors; And that no enquires were made by the AO and in a casual manner the credit balances were added to the income of the assessee. Thus firmity in the impugned order of the ld CIT(A), hence, we uphold the same - Decided against revenue.

Issues Involved:
1. Restriction of addition of Rs. 1,72,93,100/- to Rs. 15,24,100/- being interest payable by the assessee.
2. Deletion of addition of Rs. 1,26,04,397/- due to difference in sales prices of molasses.
3. Deletion of addition of Rs. 2,00,764/- due to difference in sales prices of bagasse.
4. Deletion of addition of Rs. 10,54,351/- on account of credit balance of creditors.

Detailed Analysis:

1. Restriction of Addition of Rs. 1,72,93,100/- to Rs. 15,24,100/- Being Interest Payable by Assessee:
The Assessing Officer (AO) noted that the assessee had shown interest accrued and due but not paid to Shakkar Vishesh Nidhi and the Government of U.P. The AO considered these loans as from public financial institutions and disallowed Rs. 1,72,93,100/- under section 43B(d) of the Income Tax Act, 1961. The assessee argued that these institutions are not public financial institutions as defined in section 4A of the Companies Act, 1956. The Commissioner of Income Tax (Appeals) [CIT(A)] restricted the addition to Rs. 15,24,100/- as the amount debited in the profit and loss account. The Tribunal found force in the assessee's contention that only Rs. 15,24,100/- was debited to the profit and loss account and remitted the issue back to the AO to examine whether Shakkar Vishesh Nidhi is a public financial institution as per section 43B(d) of the Act. The ground raised by the revenue was dismissed, and the ground raised by the assessee was allowed for statistical purposes.

2. Deletion of Addition of Rs. 1,26,04,397/- Due to Difference in Sales Prices of Molasses:
The AO made an addition of Rs. 1,26,04,397/- due to the difference in the sales price of molasses, comparing the selling rate of the assessee with Baghpat Cooperative Sugar Mills Ltd (BCSML). The CIT(A) opined that the basic assumption of the AO that the sales were understated could not be accepted without evidence. The CIT(A) noted that the AO did not provide any adverse comments on the books of accounts, which were audited and maintained regularly. The Tribunal upheld the CIT(A)'s decision, noting that the AO did not reject the books of accounts and did not find any discrepancies. The Tribunal confirmed the deletion of the addition, rejecting the revenue's ground.

3. Deletion of Addition of Rs. 2,00,764/- Due to Difference in Sales Prices of Bagasse:
Similar to the issue with molasses, the AO made an addition of Rs. 2,00,764/- due to the difference in the sales price of bagasse. The CIT(A) deleted the addition for the same reasons stated for molasses. The Tribunal upheld the CIT(A)'s decision, confirming that the AO did not find any discrepancies in the books of accounts and did not reject them. The Tribunal confirmed the deletion of the addition, rejecting the revenue's ground.

4. Deletion of Addition of Rs. 10,54,351/- on Account of Credit Balance of Creditors:
The AO noted that there were creditors outstanding for more than one year and treated them as non-genuine. The CIT(A) observed that the AO assumed the creditors were non-genuine without specifying the names or nature of transactions and without making any enquiry. The Tribunal found force in the assessee's contention that the payments were delayed due to liquidity issues and were settled in subsequent years. The Tribunal upheld the CIT(A)'s decision, confirming the deletion of the addition and rejecting the revenue's ground.

Conclusion:
The Tribunal dismissed the revenue's appeal and allowed the assessee's cross-objection for statistical purposes. The Tribunal upheld the CIT(A)'s decisions on all the issues, finding no infirmity in the well-reasoned findings. The order was pronounced in the open court on 28.04.2015.

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