2016 (6) TMI 595 - AT - Income Tax

TDS u/s 194H - Disallowance of the expenses claimed as incentive paid to retailers - disallowance u/s 40(a)(ia) - non deduction of tds - Held that - The assessee in the instant case has just shown the incentive paid as an expense without adjusting the same from the sales account. We further find that in none of the case incentive has been paid to the retailers in cash which was just the method of accounting and presentation that assessee has shown incentives paid to the retailers as an expense in its profit and loss account. We have also found the ledger of the incentive paid to retailers which is placed on pages 49 to 51 of the paper book and find that the incentive is nothing but a trade discount. As decided in Pareek Electricals v. ACIT 2012 (11) TMI 813 - ITAT CUTTACK the discount available to the second and third tier franchisees was a matter of availability of products at its maximum retail price and not because they had made income from the service provider. The payments made by the assessee is in the category of principal to principal and the provisions of section 194H of the Act would come into play only when the payment is from principal to agent - Decided in favour of assessee Addition u/s 68 - On question raised by AO about the payment of the incentive in the subsequent year the assessee submitted that the documents was stolen from its office on 12.10.2011 and therefore the supporting evidences are not available for the purpose of verification - Held that - AR has not brought anything before us at the time of hearing in support of his ground of appeal. No FIR was filed by the assessee for the stolen books of accounts. Accordingly we find no infirmity in the order passed by the lower authorities. - Decided against assessee

Summary

Issues Involved:
1. Disallowance of expenses claimed as 'incentive paid to retailers' under Section 40(a)(ia) read with Section 194H of the Income Tax Act, 1961.
2. Addition under Section 68 of the Income Tax Act, 1961 on account of 'incentive payable to retailers'.

Issue-wise Detailed Analysis:

1. Disallowance of Expenses Claimed as 'Incentive Paid to Retailers':
The primary issue revolves around the disallowance of ?52,63,871/- claimed by the assessee as 'incentive paid to retailers'. The Assessing Officer (AO) observed that the assessee had not deducted Tax at Source (TDS) on these payments as required under Section 194H of the Income Tax Act, 1961. The assessee argued that these payments were trade discounts and not commission, thus not attracting TDS provisions. However, the AO and subsequently the Commissioner of Income Tax (Appeals) [CIT(A)] rejected this argument, noting that the payments were made in cash and not adjusted against sales, thereby classifying them as commission.

Upon appeal, the ITAT examined the sales ledger and found that the assessee had shown the sales amount at the gross value without adjusting for the trade discount given to retailers. The ITAT concluded that the incentive was indeed a trade discount and not a commission, referencing similar cases like Pareek Electricals v. ACIT and DCIT v. Sri Santibrata Saha, where trade discounts were not subject to TDS under Section 194H. Consequently, the ITAT allowed the assessee's appeal on this ground, ruling that the disallowance under Section 40(a)(ia) was unjustified.

2. Addition Under Section 68 on Account of 'Incentive Payable to Retailers':
The second issue pertains to the addition of ?2,11,770/- shown as 'incentive payable to retailers' in the assessee's balance sheet. The AO disallowed this amount due to the absence of supporting documents, which the assessee claimed were stolen. The CIT(A) upheld this disallowance, noting that the assessee failed to provide any evidence of disbursement.

The ITAT reviewed the case and found that the assessee did not produce any supporting evidence or file an FIR for the stolen documents. As a result, the ITAT found no infirmity in the orders of the lower authorities and dismissed the assessee's appeal on this ground.

Conclusion:
The appeal was partly allowed. The ITAT ruled in favor of the assessee regarding the disallowance of expenses under Section 40(a)(ia) read with Section 194H, recognizing the payments as trade discounts. However, the ITAT upheld the addition under Section 68 due to the lack of evidence for the 'incentive payable to retailers'. The judgment emphasized the importance of proper documentation and the distinction between trade discounts and commissions for TDS applicability.