TaxTMI 
TaxTMI 
2018 (9) TMI 865
X X X X Extracts X X X X
X X X X Extracts X X X X
....t be made u/s.40A(3) of the Act. 4. On the other hand, the ld. DR did not controvert the above submissions of the ld.AR. 5. After hearing both the parties and perused the record including the order dt. 05-08-2016, we find that the issue raised in this appeal of assesse is in favour of assesse, which has rightly been pointed out by the ld.AR of assesse. On perusal of order dt. 05-08-2016, we find that this Tribunal discussed the issue in detail analyzing with various case laws available in the said order and held that cash payments made by the assesse, who is retail vendor to the Principal, Govt. of West Bengal through its wholesale agent. The assesse i.e retail vendor had made payment to the said agent (wholesale licensee) would fall under the exception provided in Rule 6DD(k) of the IT Rules. Relevant portion of such order is reproduced herein below:- "13. We have heard the rival submissions and perused the materials available on record including the paper book filed by the assessee comprising of various orders of lower authorities vide pages 1 to 42 of the Paper Book, copy of Notification No. 1208-Ex dated 29.08.2005 issued by the Excise Department, Government of West Bengal ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2 of the Act, or of a licensed wholesale vendor of country spirit; (viii) "wholesale licensee" means the wholesale vendor of country spirit to whom license has been granted in West Bengal Excise Form No. 26. (2) Words and expressions used in these rules and not defined, but defined in the Act, shall have the meanings respectively assigned to them in the Act. 3. Issue only on payment of duty.-No country spirit in labelled and capsuled bottles shall be issued without payment of duty from a country spirit bottling plant. No country spirit in bulk shall be issued without payment of duty from a country spirit warehouse. 4. Personal Ledger Account to be maintained by the wholesale licensee.-The wholesale licensee shall maintain a Personal Ledger Account in accordance with the direction issued by the Commissioner from time to time for the purpose of maintaining an account-current of the duties payable by the wholesale licensee for the issues of country spirit to the retail vendors or transport on payment of duty from the concerned country spirit bottling plant or warehouse. 5. Minimum balance in Personal Ledger Account.-The Collector shall issue directions for maintaining t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....censees whose licensed premises are located at a distance of 50 kilometres or more by the shortest route from the issuing warehouse on the basis of a certificate to be issued by the Collector in respect of distance. At the end of the month, the wholesaler shall submit a bill in duplicate to the Officer-in-Charge of the warehouse claiming refund of the amount granted as rebate. The Officer-in-Charge shall, on receipt of the bill, refund the amount claimed after verifying his records through adjustment in the Personal Ledger Account maintained for the purpose of privilege fee. In case there is no Personal Ledger Account for privilege fee at the warehouse, the Officer-in-Charge shall send a copy of the claim with his comments to the Officer-in-Charge of the supplier bottling plant, who shall refund the amount recommended to the wholesaler through adjustment in the Personal Ledger Account maintained for privilege fee." 14. We find that the reliance placed on the decision of Co-ordinate Bench of Bangalore Tribunal in the case of Sri Renukeswara Rice Mills vs ITO reported in 93 ITD 263 (Bang Trib.) is well founded , wherein, it was held that the cash payment in the bank account ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fied cases) is not arbitrary and does not amount to a restriction on the fundamental right to carry on business. If read together with Rule 6DD of the Income-tax Rules, 1962, it will be clear that the provisions are not intended to restrict business activities. There is no restriction on the assessee in his trading activities. Section 40A(3) only empowers the Assessing Officer to disallow the deduction claimed as expenditure in respect of which payment is not made by crossed-cheque or crossed-bank draft. The payment by crossed-cheque or crossed bankdraft is insisted upon to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of income from undisclosed sources. The terms of section 40A(3) are not absolute. Consideration of business expediency and other relevant factors are not excluded. Genuine and bona fide transactions are not taken out of the sweep of the section. It is open to the assessee to furnish to the satisfaction of the Assessing officer the circumstances under which the payment in the manner prescribed in section 40A(3) was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the CIT (Appeal) has disbelieved the genuineness of the transaction. There was no dispute that the purchases were genuine." Anupam Tele Services vs ITO in (2014) 43 taxmann.com 199 (Guj) "Section 40A(3) of the Income-tax Act, 1961, read with rule 6DD of the Income-tax Rules, 1962 - Business disallowance - Cash payment exceeding prescribed limits Rule 6DD(j) Assessment year 2006-07 - Assessee was working as an agent of Tata Tele Services Limited for distributing mobile cards and recharge vouchers - Principal company Tata insisted that cheque payment from assessee's co-operative bank would not do, since realization took longer time and such payments should be made only in cash in their bank account - If assessee would not make cash payment and make cheque payments alone, it would have received recharge vouchers delayed by 4/5 days which would severely affect its business operation - Assessee, therefore, made cash payment - Whether in view of above, no disallowance under section 40A (3) was to be made in respect of payment made to principal - Held, yes [Paras 21 to 23] [in favour of the assessee]" Sri Laxmi Satyanarayana Oil Mill vs CIT reported in (2014) 49 taxmann.com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ways reported in (2004) 3 SCC 640 had held that the consequences of non-compliance of Madhyapradesh Sales Tax Act , which were intended to check the evasion and avoidance of sales tax were significantly harsh. The court while upholding the constitutional validity negated the existence of a mens rea as a condition necessary for levy of penalty for noncompliance with such technical provisions required held that "in the consequence to follow there must be nexus between the consequence that befall for non-compliance with such provisions intended for preventing the tax evasion with the object of provision before the consequence can be inflicted upon the defaulter." The Supreme Court has opined that the existence of nexus between the tax evasion by the owner of the goods and the failure of C & F agent to furnish information required by the Commissioner is implicit in section 57(2) and the assessing authority concerned has to necessarily record a finding to this effect before levying penalty u/s 57(2). Though in the instant case, the issue involved is not with regard to the levy of penalty, but the requirement of law to be followed by the assessee was of as technical nature as was in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and the payments made are to the Government. It also makes it categorically required that the payment is to be made before lifting of the country spirit. Consequently we are of the view that the issue is squarely covered by the decision of the Coordinate Bench of this Tribunal in the case of M/s.Amrai Pachwai & C.S.Shop referred to supra wherein it has been held as follows :- "6. We have considered the rival submissions. At the outset a perusal of the assessment order clearly shows that the AO has recognized the assessee's business in trading of country spirit and country liquor. Copy of Form of Licence issued by Durgapur Municipal Corporation and copy of Form III issued 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stances, we are of the view that the payment made by the assessee for the purchase of country liquor and country spirit from the territorial licensee bottling plant, IFB Agro Industries Ltd., City Centre, Durgapur is protected by the exemption in terms of Rule 6DD(b) of the 1.T.Rules 1962. In the circumstances, the addition as made by the AO and as confirmed by the Id. CIT(A) by invoking the provisions of section 40A(3) of the I. T.Act 1961 stands deleted. 8. In the result the addition as confirmed by the Id. CIT(A) stands deleted. We find that this decision was rendered by placing reliance on its earlier decision in the case of M/s Amrai Pachwai & C.S.Shop in ITA No. 1251/Kol/2011 dated 15.1.2014 and after considering the contrary decisions rendered in the case of Pushpalata Mondal in ITA No. 965/Kol/2010 dated 28.7.2011 and Hon'ble Kerala High Court in the case of CIT vs K Abdu & Co (170 Taxman 297). We find that the Co-ordinate Bench decision in the case of M/s Amrai Pachwai & C.S.Shop in ITA No. 1251/Kol/2011 dated 15.1.2014 and the held portion is reproduced hereinabove. 21. We find that M/s Asansol Bottling & Packaging Co. Pvt Ltd is a bottling plant cum warehouse un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le or retail, or (d) of manufacturing or supplying by wholesale and selling retail, or (e) of manufacturing and supplying by wholesale and selling retail, any country liquor or intoxicating drug within any specified local area: Provided that public notice shall be given to the intention to grant any such exclusive privilege, and that any objections made by any person residing within the area affected shall be considered before an exclusive privilege is granted. (2) No grantee of any privilege under sub-section (1) shall exercise the same unless or until he has received a license in that behalf from the Collector or the Excise Commissioner. Hence it could be safely concluded that M/s 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 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 is required to be made in legal tender. In the instant case, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he aforesaid findings that the assessee's case falls under the exceptions provided in Rule 6DD(b) and Rule 6DD(k) of the Rules. In view of the aforesaid facts and circumstances and respectfully following the judicial precedents relied upon hereinabove, we have no hesitation in deleting the disallowance made u/s 40A(3) of the Act in all the years under appeal. Accordingly, the grounds raised by the assessee for all the years under appeal are allowed. " 6. In view of the above, finding of Co-ordinate Bench in the case of supra on similar set of facts and identical issue and discussion made herein above in para no. 5.1, we set aside the order of CIT-A and delete the addition made by the AO. Ground nos. 1 to 4 raised by the assesse are allowed. 7. Ground no. 5 is relating to confirmation of addition of Rs. 6,76,294/- made on account of alleged purchase out of books of assesse. 8. The contention of ld.AR is that the assesse made purchases and the AO could not trace out the payments made from bank statements of assesse. The cash payment was made by one of the partners, Shri Sudip Kr.Chatterjee and referred to bank statements placed at pages 28-30 of the paper book and argued that sai....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... relating to confirmation of addition of Rs. 28,97,668/- on account of undisclosed purchase in the facts and circumstances of the case. 12. The ld.AR submits that the assesse and its partner, Sri Sudip Kr. Chatterjee both are engaged in the same business of alcohol and referred to trading, Profit & Loss account filed for the A.Y under consideration placed at pages 21-27 of the paper book. He further referred to pages 19-20 of paper book and argued that TCS was collected during the A.Y under consideration. The entire purchase amount of Rs. 28,81,522/- was reflected in Sh. Sudip Kr. Chatterjee's Profit & Loss account and referred to return of income at pages 24-27 of paper book. The ld. AR argued that without considering all these submission of assessee, the CIT-A confirmed the addition made by the AO on this issue, which is not at all justified. The addition made by the AO and confirmed by the CIT-A should be deleted. 13. On the other hand, the ld. DR relied on the orders of AO & CITA 14. Heard both the parties and perused the record including the details available in the paper book. We find during the course of assessment proceedings the AO found from an information received fro....