Shri Sadhan Paul, Siliguri V. DCIT, CIR-2, SILIGURI, Siliguri

ITA 34/KOL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8577 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 06-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Keywords: Unexplained cash credit; Retrospective amendment; TDS; Set aside
• Section: 40(a)(ia); 194C; 68

Judgement Text

1 ITA NO. 34/KOL/2016 SHRI SADHAN PAUL, AY. 2012-13 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 34/KOL/2016 ASSESSMENT YEAR: 2012-13 SHRI SADHAN PAUL (PAN: ASOPP2841G) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-2, SILIGURI APPELLANT RESPONDENT DATE OF HEARING 22.01.2019 DATE OF PRONOUNCEMENT 11.04.2019 FOR THE APPELLANT SHRI SUBASH AGARWAL, ADVOCATE FOR THE ASSESSEE SHRI ROBIN CHOUDHURY, ADDL. CIT, S R. DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF LD. CIT(A), SILIGURI DATED 23.11.2015 FOR AY 2012-13. 2. AT THE OUTSET ITSELF, THE ASSESSEE HAS NOT PRES SED GROUND NOS. 2 AND 5, THEREFORE, THE SAME STAND DISMISSED. 3. COMING TO GROUND NO.1 OF THE APPEAL OF ASSESS EE IS AGAINST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF RS.36,66,4 41/- MADE BY AO BY INVOKING PROVISION OF SEC. 40(A)(IA) READ WITH SECTION 194H OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 4. BRIEF FACTS OF THE CASE AS NOTED BY THE AO ARE THAT THE ASSESSEE WAS THE SOLE DISTRIBUTOR OF M/S. UNITECH WIRELESS (P) LTD. (TAMI LNADU) (IN SHORT M/S. UWPL) WHEREIN 2 ITA NO. 34/KOL/2016 SHRI SADHAN PAUL, AY. 2012-13 HE WAS THE SOLE DISTRIBUTOR OF SELLING OF CELLULAR RE-CHARGE VOUCHERS ETC. IN AND AROUND SILIGURI. ACCORDING TO AO, IN THE PROCESS OF SELLI NG DISTRIBUTORSHIP OF RE-CHARGE VOUCHERS, THE COMPANY HAD ALLOWED THE ASSESSEE CERTAIN COMMIS SION AND THROUGHOUT THE YEAR THE ASSESSEE HAD EARNED COMMISSION AMOUNTING TO RS.69,5 0,644/- AND THE COMPANY HAD DEDUCTED TAX AT SOURCE ON THE SAID COMMISSION PAYME NT. THEREAFTER, THE AO NOTED THAT THE ASSESSEE HAD DEBITED TWO SUMS OF RS.34,40,341/- AND RS.2,26,100/- RESPECTIVELY AS EXPENSES AND TERMED THOSE AS INCENTIVE ALLOWED TO THE RETAIL SELLERS OF THE RE-CHARGE VOUCHERS. HOWEVER, ACCORDING TO AO, THE ASSESSEE HA D FAILED TO DEDUCT ANY TAX AT SOURCE ON THOSE COMMISSION PAYMENTS (THOUGH THE ASSESSEE HAD TERMED IT AS INCENTIVE) NATURE OF PAYMENT CANNOT BE DETERMINED BY THE NOMENCLATURE AD OPTED BY THE ASSESSEE AND, THEREFORE, AO WAS OF THE OPINION THAT ASSESSEE FAILED TO DEDUC T TAX AT SOURCE ON THE SAID PAYMENT AGAINST SECTION 194H OF THE ACT AND, THEREFORE, HE INVOKED SECTION 40(A)(IA) OF THE ACT AND DISALLOWED THE EXPENDITURE OF RS.36,66,441/-. AGGR IEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO WAS PLEASED TO UPHOLD TH E ACTION OF THE AO. AGGRIEVED, THE ASSESSEE IS BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE ISSUE RAISED IN THIS GR OUND OF APPEAL OF THE ASSESSEE IS REGARDING DISALLOWANCE MADE BY AO U/S. 40(A)(IA) OF THE ACT F OR WANT OF DEDUCTION OF TAX AT SOURCE IN RESPECT OF COMMISSION/INCENTIVE/DISCOUNT TO THE RET AILERS OF RE-CHARGE VOUCHERS/COUPON. THE ASSESSEE IS A SOLE PROPRIETOR IN THE BUSINESS O F DISTRIBUTION OF M/S. UWPL RECHARGES CARDS DURING THE YEAR UNDER CONSIDERATION. THE ASS ESSEE HAD DEBITED THE EXPENSES OF RS.36,66,441/- ON ACCOUNT OF INCENTIVE DISBURSED TO THE RETAILERS. THE AO DISALLOWED THE CLAIM OF DEDUCTION AS THE ASSESSEE HAS NOT DEDUCTED TAX FOR THE AMOUNT IN QUESTION AND NOMENCLATURE ADOPTED BY ASSESSEE (INCENTIVE) WAS NO T ACCEPTABLE TO THE AO, SINCE, ACCORDING TO HIM, IT PARTAKES THE CHARACTER OF COMM ISSION, THE ASSESSEE HAD FAILED TO DEDUCT TAX AT SOURCE AS PER SEC. 194H OF THE ACT, THEREFOR E, HE DISALLOWED RS.36,66,441/- ON ACCOUNT OF COMMISSION EXPENSES U/S. 40(A)(IA) OF TH E ACT. THOUGH IT WAS BROUGHT TO THE 3 ITA NO. 34/KOL/2016 SHRI SADHAN PAUL, AY. 2012-13 NOTICE OF THE LD. CIT(A) THAT RS.34,40,341/- WERE N OT PAYMENT OF COMMISSION BUT WERE THE DIRECT STOCK TRANSFER OF LAFU (ELECTRONIC RECHARGE) FROM THE PRINCIPAL COMPANY, M/S. UWPL TO THE RETAILERS AND SINCE THERE WAS NO PAYMENT, DE DUCTION OF TDS FROM PAYMENT DID NOT ARISE. THIS CONTENTION OF THE ASSESSEE WAS NOT ACC EPTED BY THE LD. CIT(A) AND HE CONFIRMED THE ORDER OF THE AO. BEFORE US IT HAS BE EN URGED BY THE ASSESSEE THAT M/S. UWPL PROVIDES THE SERVICES AND IS THE SERVICE PROVI DER AND THE ASSESSEE IS ONLY A DISTRIBUTOR AND AN INTERMEDIARY BETWEEN THE SERVICE PROVIDER AND THE RETAILER. IN THAT SCENARIO, THE TAX LIABILITY FOR PAYING THE COMMISSI ON, IF ANY, IS ATTRACTED U/S. 194H OF THE ACT IS ONLY AGAINST THE PERSON RESPONSIBLE FOR PAYI NG THE COMMISSION AND NOT ON ASSESSEE. IN OTHER WORDS, IN THE CASE ON HAND, THE ASSESSEE I S NOT PAYING ANY COMMISSION TO THE RETAILERS BUT IT IS INCENTIVE OR SO-CALLED DISCOUNT IS PAID BY THE SERVICE PROVIDER M/S. UWPL AND THE ASSESSEE BEING AN INTERMEDIARY ONLY POSSESS ON THE INCENTIVE/COMMISSION/DISCOUNT GIVEN BY M/S. UWPL. SINCE THE ROLE OF THE ASSESSEE IS AN INTERMEDIARY ONLY AND IT RECORDS THIS TRANSACTION IN THE BOOKS OF ACCOUNT FOR THE PU RPOSE OF COMPLETENESS, THE ASSESSEE IS NOT RESPONSIBLE FOR PAYING ANY COMMISSION TO THE RETAIL ER ON SALE OF RE-CHARGE COUPONS, THEN THE OBLIGATION TO DEDUCT TAX U/S. 194H IS NOT ATTRACTED AND AT BEST CAN ONLY BE ON M/S. UWPL AND NOT AGAINST THE ASSESSEE WHO IS ONLY A DISTRIBU TOR AND RECEIVING HIS SHARE OF COMMISSION/MARGIN PROVIDED BY THE SERVICE PROVIDER. WE NOTE THAT THE DETERMINATION OF SALE PRICE OF RE-CHARGE COUPONS IS IN THE SOLE DOMA IN OF THE SERVICE PROVIDER AND THE ASSESSEE HAS NO ROLE IN DETERMINING THE RETAIL PRIC E AT WHICH THE RETAILER IS SELLING THE RE- CHARGE COUPON TO THE CUSTOMER OR THE END USER OF TH E SERVICE. AND AS SUCH, WE NOTE THAT ASSESSEES ROLE IS ONLY THAT OF AN INTERMEDIARY AND PASSING THE SERVICE FROM ONE HAND TO OTHER HAND AND THE ASSESSEE HAS SHOWN THE AMOUNT OF COMMISSION/INCENTIVE/DISCOUNT IN THE BOOKS OF ACCOUNT FOR COMPLETENESS OF ACCOUNTS AND T HE SAID TRANSACTION WILL NOT DEPICT ANY LIABILITY FOR DEDUCTING TAX AT SOURCE. FOR THE AFO RESAID VIEW, WE RELY ON THE DECISION OF COORDINATE BENCH OF ITAT JAIPUR IN THE CASE OF M/S . CHOCOPOACK ENTERPRISES VS. ITO, ITA NO. 821/JP/2016 FOR AY 2011-12, DATED 13.10.2017. IN A SIMILAR CASE DECIDED BY THE ITAT, CUTTACK BENCH IN THE CASE OF PAREEK ELECTRICA LS VS. ACIT, 27 TAXMANN.COM 219 4 ITA NO. 34/KOL/2016 SHRI SADHAN PAUL, AY. 2012-13 WHEREIN THE FACTS OF THAT CASE WAS THAT THE ASSESSE E WAS A FRANCHISE OF BSNL AND IT RECEIVED COMMISSION ON GROSS VALUE OF PURCHASE AND ON SUCH COMMISSION, BSNL HAD DEDUCTED TAX AT SOURCE U/S. 194H OF THE ACT. THE A SSESSEE IN TURN HAD ALSO APPOINTED SUB- FRANCHISEES FOR SELLING PRODUCT OF BSNL. FROM ITS OWN COMMISSION IT RECEIVED FROM BSNL, THE ASSESSEE ALLOWED TRADE DISCOUNT TO SUB-FR ANCHISEES. THE AO TREATED THE TRADE DISCOUNT AS COMMISSION AND DISALLOWED THE SAME BY A PPLYING SEC. 40(A)(IA) OF THE ACT ON THE PLEA THAT ASSESSEE HAS NOT DEDUCTED TAX AT SOUR CE U/S. 194H. THE QUESTION BEFORE THE BENCH WAS WHETHER TRADE DISCOUNT MADE AVAILABLE TO SUB-FRANCHISEES WAS A COMPENSATION BY FOREGOING PART OF THE COMMISSION ALREADY SUBJECT ED TO TAX AT SOURCE BY BSNL AND IT COULD NOT HAVE SUFFERED TAXATION U/S. 194H. AND WH ETHER, THEREFORE, DISALLOWANCE U/S. 40(A)(IA) OF THE ACT WAS UNJUSTIFIED. FOR BOTH THE QUESTIONS THE TRIBUNAL ANSWERED IN THE AFFIRMATIVE IN FAVOUR OF ASSESSEE, THEREFORE, RELYI NG ON THE RATIO DECIDENDI OF BOTH THESE DECISIONS AND THE DELHI TRIBUNALS ORDER IN RAKESH KUMAR VS. CIT, ITA NO. 3386/DEL/2014 DATED 13.08.2018, WE ALLOW THIS GROUN D OF APPEAL OF THE ASSESSEE. 6. THE NEXT GROUND I.E. GROUND NO. 3 OF APPEAL OF A SSESSEE IS AGAINST THE ACTION OF LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF RS.4,52,17 0/- MADE BY THE AO ON ACCOUNT OF CONTRACTUAL PAYMENT MADE TO M/S. ADEECO FLEXION BY INVOKING SEC. 40(A)(IA) OF THE ACT. 7. BRIEF FACTS OF THE CASE AS NOTED BY THE AO ARE T HAT THE ASSESSEE HAS PAID A SUM OF RS.4,52,170/- TO M/S. ADEECO FLEXION AND TERMED THE SAME AS SALARY. ACCORDING TO AO, FROM THE NAME ITSELF M/S. ADEECO FLEXION CANNOT BE AN EMPLOYEE SINCE IT IS A PRIVATE LIMITED COMPANY. ACCORDING TO AO, M/S. ADEECO FLEX ION IS A SERVICE PROVIDER WHICH LOOKED AFTER THE CELL PHONE CONNECTIVITY AFTER SALE S SERVICES, FIXES SNAG IN CONNECTIONS AND OTHER COMPLAINTS RELATING TO PERFORMANCES OF M/S. U WPL. THUS, ACCORDING TO AO, THE ASSESSEE HAS MADE PAYMENT TO THE SAID CONCERN AND T HAT PAYMENT WAS NOTHING BUT A CONTRACTUAL PAYMENT, WHICH ATTRACTED SEC. 194C OF T HE ACT SO, WITHOUT DEDUCTION OF TDS 5 ITA NO. 34/KOL/2016 SHRI SADHAN PAUL, AY. 2012-13 THIS AMOUNT CANNOT BE ALLOWED. AGGRIEVED, THE ASSE SSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ACTION OF THE AO. AGGRIEV ED, ASSESSEE IS BEFORE US. 8. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT M/S. ADEECO FLEXION HAS BEE N PAID RS.4,52,170/- FOR SUPPLY OF MANPOWER AS DIRECTED BY M/S. UWPL. ACCORDING TO AS SESSEE, SINCE M/S. UWPL HAD INFORMED THE ASSESSEE THAT THE PAYEE M/S. ADEECO FL EXION WORK FORCE SOLUTION POSSESSED CERTIFICATE FOR NON-DEDUCTION OF TDS U/S. 197 OF TH E ACT, THE ASSESSEE HAD NOT MADE ANY ENDEAVOUR TO DEDUCT TAX AT SOURCE (TDS). HOWEVER, AS AN ALTERNATIVE GROUND, WITHOUT PREJUDICE TO THE AFORESAID SUBMISSION SUBMITTED THA T IN THE LIGHT OF THE RECENT AMENDMENT OF THE TDS PROVISIONS IN THE LIGHT OF THE FINANCE ACT , 2012 WHEREIN AMENDMENT IN SEC. 201 AND SEC. 40(A)(IA) OF THE ACT HAS BEEN MADE, IT CAN BE VERIFIED BY THE AO WHETHER THE PAYEES HAVE DISCLOSED THIS PAYMENT IN THEIR RETURN OF INCOME AND HAS PAID THE DUE TAX IN THEIR RETURNED INCOME. WE FIND FORCE IN THE ALTERN ATIVE SUBMISSION OF THE ASSESSEE AND TAKING NOTE OF THE AMENDMENT IN FINANCE ACT, 2012 M ADE IN SECTION 201 AND SEC. 40(A)(IA) OF THE ACT THE PAYER ASSESSEE WOULD NOT BE DEEMED T O BE IN DEFAULT IF THE RECIPIENT OF INCOME HAS TAKEN INTO ACCOUNT THE AMOUNT RECEIVED F ROM THE PAYER IN COMPUTING INCOME AND DECLARED IT IN THEIR RETURN AND HAS PAID TAXES ON THE RETURNED INCOME. WE NOTE THAT THE TRIBUNAL HAS HELD IN A PLETHORA OF DECISIONS THAT I NSERTION OF 2 ND PROVISO TO SEC. 40(A)(IA) OF THE ACT IS CURATIVE. 9. WE NOTE THAT THE FINANCE ACT 2012 MADE AN AMENDM ENT OF SECTION 201 & 40(A)(IA) OF THE ACT. IN ACCORDANCE WITH THIS AMENDMENT, THE PAY ER ASSESSEE WOULD NOT BE DEEMED TO BE IN DEFAULT IF THE RECIPIENT OF INCOME, HAS TAKEN IN TO ACCOUNT THE AMOUNT RECEIVED FROM THE PAYER IN COMPUTING INCOME AS DECLARED IN THE RETURN AND HAS PAID DUE TAX ON THE RETURNED INCOME. WE NOTE THAT THE TRIBUNAL HAS HELD THAT THE INSERTION OF SECOND PROVISO TO SEC. 40(A)(IA) OF THE ACT IS CURATIVE AND IT HAS RETROSP ECTIVE EFFECT W.E.F. 1ST APRIL, 2005, BEING A DATE FROM WHICH SEC. 40(A)(IA) OF THE ACT WAS INSER TED BY THE FINANCE (NO. 2) ACT, 2004. IN 6 ITA NO. 34/KOL/2016 SHRI SADHAN PAUL, AY. 2012-13 VIEW OF THIS, WE ARE OF THE VIEW THAT MATTER NEEDS FRESH ADJUDICATION IN THE LIGHT OF THE FACT THAT THE AO WILL CARRY OUT NECESSARY VERIFICATION. IN CIT V. ANSAL LAND MARK TOWNSHIP PVT. LIMITED [ITA 160/2015 & 161/2015, DATED 26/08/2015] , HIGH THE HON'BLE DELHI HIGH COURT HELD THAT THE 2ND PROVISO TO SECTION 40(A)(IA ) HAS RETROSPECTIVE EFFECT FROM 01/04/2005: 14. THE COURT IS OF THE VIEW THAT THE ABOVE REASON ING OF THE AGRA BENCH OF ITAT AS REGARDS THE RATIONALE BEHIND THE INSERTION OF THE S ECOND PROVISO TO SECTION 40(A) (IA) OF THE ACT AND ITS CONCLUSION THAT THE SAID PROVISO IS DEC LARATORY AND CURATIVE AND HAS RETROSPECTIVE EFFECT FROM 1ST APRIL 2005, MERITS AC CEPTANCE. 15. IN THAT VIEW OF THE MATTER, THE COURT IS UNABLE TO FIND ANY LEGAL INFIRMITY IN THE IMPUGNED ORDER OF THE ITAT IN ADOPTING THE RATIO OF THE DECISION OF THE AGRA BENCH, ITAT IN RAJIV KUMAR AGARWAL V. ACIT.' THE ASSESSEE MADE PAYMENT TO THAT M/S. ADEECO FLEXI ON. CONSIDERING THE JUDICIAL DECISIONS AS CITED ABOVE, WE SET ASIDE THE IMPUGNED ORDER OF LD CIT(A) AND REMAND THE ISSUE BACK TO AO AND THE AO IS DIRECTED TO VERIFY THE FACT REGARD ING THE PAYMENT OF THE TAX BY THE RECIPIENT AND IF THE AO FINDS THAT THE RECIPIENT HA S INCLUDED THE AMOUNT IN THE TOTAL INCOME IN ITS RETURN OF INCOME AND PAID TAXES THEREON, THE N THE DISALLOWANCE MADE BY THE AO BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT BE DELETED. WE CONFIRM THE ORDER OF LD. CIT(A) AND DISMISS THIS GROUND OF APPEAL OF REV ENUE. FOR THE AFORESAID DECISION OF OURSELVES, WE RELY ON THE DECISION OF THE HONBLE C ALCUTTA HIGH COURT IN THE CASE OF PR. CIT VS. M/S. TIRUPATI CONSTRUCTION IN GA 2146 OF 2016 I N ITAT NO.287 OF 2016 PASSED ON 23.08.2016. 10. GROUND NO. 4 OF THE ASSESSEE IS AGAINST THE ACT ION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.2,78,825/- MADE BY AO ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDIT. 11. BRIEF FACTS OF THE CASE ARE THAT THE AO NOTED T HAT WHILE EXAMINING THE ASSESSEES BOOKS OF ACCOUNT I.E. LEDGER ACCOUNT HE FOUND THAT THE ASSESSEE HAS SHOWN TO HAVE RECEIVED A SUM OF RS.2,78,825/- AS LOAN FROM ONE M/S. TISHITA CELLULAR OUT OF THE SAID AMOUNT OF RS.2,78,825/-, THE ASSESSEE HAS SHOWN TO HAVE RECEI VED TOTAL SUM OF RS.1,52,000/- IN CASH. ACCORDING TO AO, SINCE THE ASSESSEE FAILED TO PROVE THE IDENTITY, GENUINENESS AND 7 ITA NO. 34/KOL/2016 SHRI SADHAN PAUL, AY. 2012-13 CREDITWORTHINESS OF THE PERSON WHO HAS LENT THE MON EY, HE MADE THE ADDITION. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT (A) WHO CONFIRMED THE SAME. 12. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT BEFORE THE LD. CIT(A) IT WAS BRO UGHT TO HIS NOTICE THAT M/S. TRISHITA CELLULAR HAS PAID THE MONEY FOR PURCHASE OF GOODS A ND ULTIMATELY THE SAID DEALER HAS NOT PURCHASED THE GOODS WITHIN THE FINANCIAL YEAR 2011- 12 AND FINALLY THE DEALER PURCHASED GOODS IN THE NEXT YEAR AND THE ENTIRE AMOUNT WAS AD JUSTED WITH THE GOODS PURCHASED WITHIN THE FINANCIAL YEAR 2012-13. SO, IT WAS PLEADED BEF ORE THE LD. CIT(A) THAT THE SAID AMOUNT CANNOT BE TREATED AS INCOME OF THE ASSESSEE BECAUSE THE ENTIRE AMOUNT IS ADJUSTED WITH THE SALE MADE BY THE ASSESSEE WITHIN THE NEXT AY 2013-1 4. HOWEVER, THE LD. CIT(A) DID NOT GIVE ANY HEED TO THE PLEA OF THE ASSESSEE. FROM TH E FACTS NARRATED ABOVE, WE NOTE THAT THERE IS A DIFFERENCE BETWEEN CREDIT REPRESENTING TRADE A DVANCES AND LIABILITY TO GIVE GOODS BY THE ASSESSEE IN ASSESSEES NORMAL BUSINESS ACTIVITY; AN D A CREDIT REPRESENTING MONIES RECEIVED FROM ANOTHER PERSON. IT IS BECAUSE OF THIS DISTINC TION, A LIABILITY WHICH ARISES AS A RESULT OF ANY PURCHASE RELATING TO ANY CORRESPONDING CREDIT T O THE ACCOUNT OF THE SUPPLIER CANNOT BE ADDED U/S. 68 OF THE ACT. MORE SO, WHEN THE PURCHA SE HAS BEEN CARRIED OUT IN THE NEXT ASSESSMENT YEARS AND HAS NOT BEEN FOUND TO BE FALSE EVEN THOUGH THE FACT OF SQUARING UP THE SAME WAS BROUGHT TO THE NOTICE OF THE LD. CIT(A) BY BRINGING TO HIS NOTICE THAT THE ASSESSEE HAD INFACT SOLD THE GOODS IN THE NEXT ASSESSMENT YE AR FOR THE AMOUNT ADVANCED TO IT AS A TRADE ADVANCE. 13. THUS, WE NOTE THAT ASSESSEE HAS BROUGHT TO THE NOTICE OF THE AO THE SOURCE FROM WHICH IT HAS RECEIVED THE AMOUNT IN QUESTION. THE ADDRESS OF THE ENTITY WHICH HAS GIVEN MONEY TO THE ASSESSEE HAS ALSO BEEN GIVEN AS M/S. T RISHITA CELLULAR, I.E. SHIVMANDIR, P.O. KADAMTALA, DIST. DARJEELING. THUS, THE ASSESSEE HA S GIVEN THE ADDRESS AND IDENTITY OF THE PAYEE OF THE AMOUNT IN QUESTION. IT WAS ALSO BROUGH T TO THE NOTICE OF THE LD. CIT(A) THE NATURE OF THE AMOUNT BY STATING THAT M/S. TRISHITA CELLULAR HAS PAID MONEY FOR PURCHASE OF GOODS FROM ASSESSEE WHICH IS NOTHING BUT A TRADE AD VANCE; AND THIS FACT OF TRADE ADVANCE 8 ITA NO. 34/KOL/2016 SHRI SADHAN PAUL, AY. 2012-13 MADE BY THE PAYER IN THIS RELEVANT ASSESSMENT YEAR AS WELL AS THE FACT THAT THE GOODS FOR THE AMOUNT IN QUESTION HAS BEEN SOLD BY THE ASSESSEE AN D THE ENTIRE AMOUNT WAS ADJUSTED IN THE NEXT ASSESSMENT YEAR HAS NOT BEEN FOUND TO BE FALSE EVEN THOUGH BROUGHT TO THE NOTICE OF THE DEPARTMENT THE ASSESSEE HAS DISCHARGED THE ONUS CAS TED UPON IT U/S. 68 OF THE ACT. THE FACTS NARRATED ABOVE HAS BEEN CORROBORATED BY THE ASSESSE E BY PLACING THESE DOCUMENTS BEFORE US IN THE PAPER BOOK BY PRODUCING THE LEDGER ACCOUNT O F M/S. TRISITA CELLULAR WHICH HAS BEEN FOUND PLACED AT PAGE 59 OF THE PAPER BOOK AND LEDGE R ACCOUNT OF M/S. TRISITA CELLULAR FOR AY 2013-14 ALONG WITH COPIES OF INVOICE RAISED BY T HE ASSESSEE FOUND PLACED AT PAGES 60 TO 84 WHICH GOES ON TO SHOW THAT THE ASSESSEE HAS SQUA RED UP BY ADJUSTING THE SALES OF THE GOODS FOR THE AMOUNT WHICH IT HAS RECEIVED AS ADVAN CE, THEREFORE, NO ADDITION U/S. 68 OF THE ACT IS WARRANTED AND THE SAME IS DIRECTED TO BE DE LETED. 14. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 11.04.2018 SD/- SD/- (DR. A. L. SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11TH APRIL, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT SHRI SADHAN PAUL, PROP. TAPAS MARKETING , BALASON COLONY, NEW PAULPARA, MATIGARA, SILIGURI-734010. 2 RESPONDENT DCIT, CIRCLE-2, SILIGURI 3 4 5 CIT (A), SILIGURI. CIT, SILIGURI DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR