2014 (3) TMI 259

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.... filed by the assessee in the revenue's appeal in ITA No. 2316/Kol/2013 for the assessment year 2010-11. 2. Shri Vivek Verma, learned JCIT/Sr.DR represented on behalf of the revenue and Shri Somnath Ghosh, Advocate, learned AR represented on behalf of the assessee. 3. At the time of hearing before us the learned AR for the assessee has submitted that he did not wish to press the Cross Objection filed by the assessee. Consequently, the same stands dismissed being not pressed. 4. In the revenue's appeal in ITA No. 2316/Kol/2013 for the A.Y 2010-11, the revenue has raised the following grounds of appeal:- I. The ld. CIT(A)-XXXVI, Kolkata has erred in deleting the addition of Rs.56,66,094/- made u/s. 40A(3) holding that the ....

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....2009-10 as also the decision of the co-ordinate bench of this tribunal in the case of M/s. Amrai Pachwai & C.S Shop Vs. DCIT, Cir-1, Durgapur in ITA No.1251/Kol/2011 dated 15-01-2014 for the assessment year 2008-09. 7. We have considered the rival submissions. At the outset a perusal of the submissions of the learned Sr.DR that the assessee has raised his exception claiming under Rule 6DD(a) of the I.T Rules and the Tribunal and the ld.CIT(A) both have considered the Rule 6DD(b), would not hold water in so far as exemption provided is in Rule 6DD. The various clauses of the said Rule would have to be considered. Even other wise, the said Rule is not exhaustive. Further, a perusal of the decisions of the co-ordinate bench of this tribunal....

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....by Department of Excise, Govt. of W.B were also found at pages 177 and 179 of the assessee's paper book. In any case the validity of licence of the assessee to trade in country spirit and country liquor is not the issue before us. The issue is whether the payments made by the assessee for the purchase of country spirit from the territorial licensee bottling plant, IFB Agro Industries Ltd, City Centre, Durgapur. falls within the exemption provided under rule 6DD(b) of the I.T Rules 1962. Admittedly, the AO has recognised that the provision of Rule 6DD(b) of the I.T Rules 1962 is applicable in case of payments made to government directly. This is found in page 2 of the assessment order. A perusal of the Kolkata Gazette Tuesday dated 20th ....

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....t. This shows that any payment made to the warehouse, which is under the direct control of the state government, is a payment made directly to the government. Once, this is accepted then the provisions of Rule 6DD(b) of the I.T Rules 1962 which clearly spells out that the payment made to the government in legal tender under the rules framed by the Government, is exempted from the rigours of section 40A(3) of the Act. Here, it is noticed that the payments made by the assessee for purchase of country spirit and country liquor is to the government as per the notification issued by the government and is in legal tender specified by the notification. In the circumstances, we are of the view that the payment made by the assessee for the purchase ....