TaxTMI 
TaxTMI 
2016 (5) TMI 640
X X X X Extracts X X X X
X X X X Extracts X X X X
....or the Asst Years 2005-06 to 2009-10 u/s 206C(6)/206C(7) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act'). Since the issue involved in all the appeals of the revenue are identical in nature, they are taken up together and disposed off by this consolidated order for the sake of convenience. 2. The only issue to be decided in these appeals is as to whether the assessee could be said to have violated the provisions of section 206C of the Act in the facts and circumstances of the case. 3. The brief facts of this issue are that the Learned AO observed that the assessee is engaged in dealing in sawn timber from the previous year relevant to Asst Year 2005- 06. In the course of survey proceedings u/s 133A of the Act on 25.3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(1) is not applicable to the assessee. Aggrieved, the revenue is in appeal before us by raising the similar grounds for the asst years 2005-06 to 2009-10. The grounds raised for the Asst year 2005-06 are as below for the purpose of adjudication:- "That on the fact and circumstances of the case, the Ld. CIT(Appeal)-I, Kolkata has erred in holding that section 206C(1) & section 206C(6A) are not applicable in this case ignoring the following facts completely :- 1. The Provisions of section 206C (1) are very clear and unambiguous and provides for TCS on sale of all timber whether the same is obtained under the forest lease or other modes. Each and every timber which is obtained from tree is cut through by hand saw or mechanica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....actions were excluded from collection of tax at source u/s 206C(1A) of the Act. In respect of Cross objections of the assessee, the Learned AR without prejudice to his arguments above, argued that if the buyer of the sawn timber had filed his return of income u/s 139(1) of the Act ; had taken into account such amount for computing income in such return of income ; and had paid the tax due on the income declared by him in such return of income, then the seller of the sawn timber (assessee herein) shall not be treated as assessee in default. For this he placed reliance on the decision of the Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverage (P) Ltd vs CIT reported in 293 ITR 226 (SC). 5. The Learned DR vehemently relied ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for Timber , in para 14 under the caption "Restriction of Sale etc", it is mentioned as below:- 14. No purchaser shall sell timber purchased by him to another party while such timber is lying in the Corporation depot. No sawing or conversion of timber is to be permitted in the depot premises under any circumstances what so ever. This particular restrictive covenant in the tender document for timber proves that the term timber is different from sawn timber. 6.1. We find that when timbers are sawed out of logs or big size of timber, what is produced is a different thing for different uses. A new kind of commodity is manufactured because sawn timber made out of timber is not timber in its nascent state. We find that when a pers....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o manufacture. Hence it could be safely concluded that the timber is different from sawn timber and hence the provisions of section 206C of the Act would not be applicable to the assessee. 6.4. We find that the Learned CIT(A) had given a categorical finding that the sawn timber were sold by the assessee to the persons who were engaged in manufacturing and processing furniture and such other products. Hence the assessee's case falls under the exception provided in provisions of section 206C(1A) of the Act. This categorical finding given by the Learned CIT(A) is not controverted by the revenue before us. 6.5. We find that the Hon'ble Calcutta High Court in the case of Shaw Bros. and Co vs The State of West Bengal reported in 1963 14 ....