2014 (2) TMI 979

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....jendra Prasad, learned JCIT/Sr.DR represented on behalf of the revenue. 3. In the assessee's appeal, the assessee has raised the following grounds of appeal:- 1. FOR THAT the Ld. Commissioner of Income Tax (Appeals) Durgapur failed to appreciate that none of the conditions precedent for the assumption of jurisdiction u/s. 40A(3) of the Income Tax Act, 1961 existed and/or has been complied with and/or fulfilled in the instant case by the Ld. Deputy Commissioner of Income Tax. Circle .1, Durgapur and the impugned disallowance made in the sum of ITA No.1251/Kol/11A- Amrai Pachwai & C.S Shop 2 Rs. 1,11,11,235/- without any infringement on that behalf is ab initlo void, ultra vires and exfacie null in law. 2. FOR THAT under the circumst....

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.... for an amount of Rs.1,11,11,235/- from the territorial licensee bottling plant, IFB Agro Industries Ltd, City Centre, Durgapur. It was the submission that purchase considerations were deposited in cash into the bank account of the said seller. It was the submission that as the payments were made in cash for the purchases, the AO had invoked the provisions of section 40A(3) of the Act. It was submitted that the AO had failed to appreciate that the payments had been made for purchases from the government authorised licensee agent covered by the provisions of Rule 6DD(b) of the I.T Rules 1962 as also exception of Rule 6DD(k) of the I.T Rules 1962. It was the submission that consequently the AO had disallowed the purchase in its entirety by in....

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....irit gets his payment from sale of country spirit in cash and as the assessee has to purchase the country spirit from the government authorised whole sale licensee, the same has to be made by cash. It was the further submission that no body would be willing to sell liquor more specifically country liquor on credit or cheque in so far as once the product leaves the control of the seller and the same is consumed, then recovery would be practically impossible. It was the submission that the assessee having purchased the country spirit from the government, the payment in cash being legal tender to the accounts of the government was within the exemption provided in Rule 6DD(b) of the I.T Rules 1962. The learned AR for the assessee has further su....

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.... page 2 of the assessment order. A perusal of the Kolkata Gazette Tuesday dated 20th Sept 2005 shows that the Government of West Bengal, Department of Excise has issued a notification, wherein the warehouse has been identified to mean the warehouse for supply of country spirit to the retail vendors, established at convenient places by the Commissioner at the expense of the State Government, or at the expense of a person to whom the exclusive privilege of supplying or selling country spirit by wholesale has been granted u/s. 22 of the Act of a licensed wholesale vendor of country spirit. Further, it has been specifically identified that the authorised representative of the wholesale licensee shall realize the necessary amount of duty, cost p....