2018 (6) TMI 1463

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....f section 40A(3) of the Income Tax Act, 1961 (Act). 3. The ld. DR relied on the order of the AO. The ld. AR submits that the issue in hand is covered by the decision of this Tribunal in assessee's own case for A.Y.2008-09 and 2009-10 passed by the Coordinate bench of this Tribunal. The ld. AR referred to the relevant portion in CIT(A)'s order and argued that cash payments made to M/s. Asansol Bottling and Packaging Co.Ltd is a warehouse under Rule 2 (vii) of West Bengal Excise Rule 2005 and the addition made by the AO on account of violation of section 40A(3) of the Act is not maintainable and CIT(A) rightly deleted by placing reliance on the order of this Tribunal in assessee's own case. 4. Heard the rival submissions and perused the....

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....on makes it clear that the 'warehouse ' referred to under the State Excise Rules is under the direct control and authority of the Commissioner of State Excise because it is established by the State Government or by the licensee to whom the exclusive privilege is granted under section 22 of the Bengal Excise Act, 1909. Hence there could be no doubt that the warehouse is established by the State Excise Commissioner. Hence it could be safely concluded that the warehouse so established by the State Excise Commissioner is a State Government establishment. It would also be pertinent to note that the said warehouse has been specifically established for supply of country spirit to retail vendors (assessee herein) only and not to anybody else. ....

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....ner. Hence it could be safely concluded that Mls Asansol Bottling & Packaging Co. Pvt. Ltd. (Bottling Plant) is a warehouse within the meaning of Rule 2(vii) of the Excise Rules 2005 and said warehouse is a State Government establishment, established and controlled by the Excise Commissioner. It would be relevant to reproduce Rule Rule 6DD(b) of the IT Rules at this juncture. (b) where the payment is made to the Government and, under the rules framed by it, such payment required to be made in legal tender. In the instant case, the assessee (retail vendor) had made cash payments for purchase of country spirit by depositing cash directly into the bank account of M/s ABPL as per Rule 6(2) of the Excise Rules 2005, it....

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....es through its Authorised wholesaler Licensee (Agent), both de facto and dejure, is one of 'Principal' and 'Agent '. We hold that the assessee retail vendor had made payment to the said agent (wholesale licensee) would fall under the exception provided in Rule Rule 6DD(k) of the Rules. The Ld. Authorised Representative had advanced another argument that the payment is made by the assessee to State Bank of India and accordingly the same would fall under the exception provided in Rule Rule 6DD(a) of the Rules. We find that the assessee had made payments only to the customer of State Bank India and not to State Bank of India. Hence the assessee's case does not fall under the exception provided in Rule Rule 6DD (a) of the Rules. ....