M/s. Dutta Automobiles (P) Ltd (Appellant) vs Assistant Commissioner of Income-tax (Respondent)
Date of Order: 05-10-2015

ORDER

Per Shri Mahavir Singh, JM:
This appeal by assessee is arising out of order of CIT(A)-Durgapur in appeal No. 155/CIT(A)/DGP/2012-13 dated 26.03.2015. Assessment was framed by ACIT, Circle-

1, Durgapur u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for AY 2010-11 vide its order dated 19.03.2013.

2. The only issue in this appeal of assessee is against the order of CIT(A) sustaining the addition made by AO being the advances received from customers who booked vehicle for purchase and consequently the advances were also adjusted against sale of vehicle. For this, assessee has raised following ground no.1:

“ 1. That considering the facts and circumstances of the case and the law the Commissioner of Income Tax (Appeals), Durgapur has erred in sustaining the addition of Rs.3,99,54,051/- being advances received from customers who booked for purchase of Hero Honda Motor Cycles from the assessee and which advances are adjusted while raising tax invoice at the time of sale of vehicles. ”

3. Briefly stated facts are that the assessee company is a dealer in motor cycle of Hero Honda Motor Corporation Ltd. and also trading in spare parts and resale of two wheelers. The assessee during the course of assessment proceedings produced complete books of account and other supporting vouchers including sale and purchase bills and evidence regarding expenses. The AO examined the complete books of account and on perusal of audited Balance Sheet he observed that the assessee had declared the liability of Rs.3,99,54,051/- being “advances from customers”. The AO required the assessee to file the details of customers from whom advances received, which are as under:
“(a) Name & full postal addresses of the person from whom advance was taken,
(b) PAN of the person from whom advance was taken,
(c) Voter Id. Card No. of the person from whom the advance was taken,
(d) Chassis No. of the two wheeler supplied to the party,
(e) Total price of the two wheeler (on road price) and
(f) Amount received as advance from party with date.”

According to AO, the assessee could not produce the details in respect to customers numbering 1022. The AO also issued summons u/s. 131 of the Act to the Directors of the company viz. Mr. Kamalesh Dutta, Mr. Chandan Dutta and Mr. Manab Dutta to file the details of advances received from customers along with cash book and status of advance from customers. According to AO, the director could not produce the details called for. But one of the Directors in his deposition stated that they did not maintain detailed record of the customers but at the time of delivery of two wheelers they issue invoice to the customers and take back the money receipts of advance payments and adjust the advance against sale price of two wheelers. But the AO has not believed the explanation of the assessee and added the entire advance received from customers at Rs.3,99,54,051/-. Aggrieved, assessee preferred appeal before CIT(A), who confirmed the action of AO by applying the provision of section 68 of the Act by giving the following final finding at para 7 as under:

“ 7. Therefore taking into consideration the circumstances of the present case and the applicable legal position on the issue, it can be safely concluded that the A.O. was correct in law in resorting to the addition of Rs.3,99,54,051/- by applying the provisions of s. 68 of the Act since the criteria of identity, creditworthiness and the genuineness of the transaction in respect of advance from customers remained unproved and after due deliberation, I am inclined to uphold the same. ”

Aggrieved, now assessee is in second appeal before Tribunal.

4. We have heard rival submissions and gone through facts and circumstances of the case. We find that the assessee is a private limited company started its business for AY 2008-09 as a dealer of Hero Honda motor cycle manufactured by Hero Motor Corporation Ltd. having distributorship for Durgapur and surrounding areas. Being a private limited company, assessee’s accounts are audited under the provisions of Companies Act, 1956 as well as under the Income tax Act u/s. 44AB of the Act. The assessee is following mercantile system of accounting. All the purchases of assessee are supported by suppliers’ invoices and tax invoices, which are issued to customers for sale of motor cycles. The assessee explained before us that in case of motor cycle dealership, the product being of high demand and supplies are not matching thereto particularly in case of Hero Honda Motor Cycle. Accordingly, purchasers gave advance for the goods chosen but not available in stock, for which advances are credited to “advance from customers account” and as and when particular product is available i.e. motor cycle, that is delivered after taking balance amount after adjusting earlier advance against full invoice price. According to assessee, such advances are mainly remained unadjusted for last 2/3 months round the year and accordingly, in the relevant financial year 2009-10 relevant to AY 2010-11, the balance as on 31.03.2010 was Rs.3,99,54,051/-, which is the subject matter of present appeal as added by AO and confirmed by CIT(A). According to assessee, the advance was received by the assessee against booking of a particular make of motor cycle, which is not immediately available. As and when the same is received from Hero Motor Corporation Ltd. the same is delivered to customers after adjusting advance against full invoice price. The AO called for details viz., (a) Name & full postal addresses of the person from whom advance was taken, (b) PAN of the person from whom advance was taken, (c) Voter Id. Card No. of the person from whom the advance was taken, (d) Chassis No. of the two wheeler supplied to the party, (e) Total price of the two wheeler (on road price) and (f) Amount received as advance from party with date. The Ld. Counsel for the assessee before us explained that the above particulars asked for by the AO like asking information under KYC norms, which is not compulsory in case of Sale of Goods Act i.e. for sale of motor cycles or scooters. Ld. Counsel for the assessee filed complete paper book consists of pages 1 to 213, wherein the relevant information at Sl. No. 5 i.e. copies of money receipt issued to customers while booking and taking advance is given at pages 15 to 109, at Sl. No. 6 party wise details to whom motor cycle was delivered against advance given at pages 110 to 130, at Sl. No. 7 copies of invoice issued to parties on sale of motor cycle and adjustment of advance at pages 131 to 145, at Sl. No. 8 confirmation from few parties for deposit of advances at pages 146 to 187, at Sl. No. 10 party wise and motor cycle wise advances as on 31.03.2010 at pages 193 to 212 and also at Sl. No. 11 comparative chart of sales and advances from customers from FY 2007-08 to 2011-12. The last item i.e. comparative chart of sales and advances from customers is new evidence filed before the Tribunal for the first time otherwise all the evidence were before AO as well as before CIT(A), but this comparative chart is only compilation of sales and purchases as well the advances. It was explained that name of the customers with relevant receipt no. issued on receiving advance and amount of advance receipt were given. Even the addresses of customers therein relevant tax/sales invoices, which were produced before the AO as well as before CIT(A), contains full names, addresses, chassis and engine no. and total price of motor cycles sold under said invoice including the advance adjusted which was received from the customers. According to Ld. Counsel for the assessee, this is general practice in the trade where the demand is high and goods are in short supply and in such scenario, assessee is receiving money against future sales. Ld. Counsel for the assessee explained before us that the liability credited under the head “advance from customer account” and the same is squared up the moment motor cycle is delivered to the customer. According to Ld. Counsel, this can be verified from the books of account and AO has verified also. Ld. Counsel for the assessee particularly drew our attention to page 131 of the assessee’s paper book wherein the customer’s name and address is mentioned as Maya Gurung, A-Zone, Hostel Avenue, Durgapur-4, DT. Burdwan, invoice dated 23.04.2010 wherein advance of Rs.38,000/- was adjusted as under: “Break up of payment
Sl. No. Particulars                                Amount
1.         Super Splendor Cast               45,250.00
2.         Hero Honda Goodlife                    260.00
                                                             45,510.00
Less : Advance                                    38,000.00
                                                 Due        7,510.00
                                     Less Paid          7,510.00”

5. In this invoice, even the chassis no., colour, engine no., battery no. and key no etc. are also mentioned. From the above tax invoice/retail invoice, it is clear that the advance of Rs.38,000/- was adjusted against sale of motor cycle and similar is the practice in almost all the cases as is evident from the invoice attached in the paper book. The question arises whether the information called for by the AO in regard to PAN No., voter I. D Card etc. is required in the case of sale of goods. To this, our answer is ‘no’ because KYC norm does not apply to traders rather the assessee has complete name and address in the tax/retail invoice along with chassis no. of the two wheeler, engine no. and total price of two wheeler including the adjustment of advance received from the party. The assessee is consistently following this practice and he has filed the details at page 213 of assessee’s paper book and the relevant details reads as under:

Dutta Automobiles Pvt. Ltd.
Comparative Chart of Customers Advance from Asst. Year 2008-09 to 2012-13

6. In view of the above facts and circumstances of the case, we are of the view that the assessee is consistently following this system of accounting where advances received from customers kept under the head “advance from customer account” for two to three months till the delivery of motor cycle and after delivery this advance is adjusted against the sale price, is a trading receipt, which is included in the sale price of the product of the assessee and included in the books of account under the head ‘sales’. The assessee has produced complete details before the AO and before the CIT(A) also such as the receipt of cash as advance against future purchase of motor cycle, copies of tax invoice/retail invoice of sale of motor cycle wherein names, addresses of the parties including engine no. and chassis no. of the motor cycle is given.

7. We find that the assessee is following mercantile system of accounting, wherein it is receiving advance deposits from customers on account of sale of motor cycle being a dealer in automobile. Whenever the sale is taken place, within one to two months, these deposits are adjusted against sale price of the motor cycle. This fact is admitted by both the sides. The issue is whether the assessee is consistently following certain system of accounting which had been accepted by the department from the very beginning and even in future years. There is no change of system of accounting followed by the assessee. Allowing the department to adopt a different approach altogether in this assessment year in question would create an anomalous situation as far as the assessee is concerned. The issue that the dealer receiving advance money from customers where the item is in demand and there is scarcity of supply, it many a times happen that seller receives advance money from the purchaser and as and when supply is made the advance is adjusted against sale price. This is being done by the present assessee before us also. The advance money, in the present case before us, is adjusted the sale price of the motor cycle and sale is disclosed in the return of income i.e. the trading account of the assessee. Accordingly, we find no ambiguity in the system followed by the assessee.

8. From the details filed before us, Ld. DR could not point out the discrepancy in the same because these advances were adjusted against sales. When this was pointed out to Ld. Sr. DR, he stated that the assessee is unable to produce the PANs, names and addresses of the parties. He was specifically shown a tax/retail invoice wherein complete details were given except the PAN/Voter I. Card. In our view, PAN/Voter Identity Card is a KYC norm, which does not apply to the sale of goods under the Sale of Goods Act. In view of the above, we are of the view that the AO and CIT(A) both have erred in making and confirming this addition and accordingly, we delete the same.

The sole issue of assessee’s appeal is allowed.

9. In the result, appeal of assessee is allowed.

10. Order is pronounced in the open court on 05.10.2015