TaxTMI 
TaxTMI 
2019 (9) TMI 90
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.... Officer (2016) 48 CCH 008 (Kol Trib) and Ashok Kumar Mondal v. Income-tax Officer, Ward-2(2), Asansol (2016) 161 ITD 521 (Kolkata Trib), despite the fact that the cited cases pertain to retailers of country spirit in which the business is regulated by the "West Bengal Excise(Supply of Country Spirit on Payment of Duty) Rules, 2005", and that the instant case relates to an assessee who is a retailer of foreign liquor and none of the payees in default of section 40A(3) are covered by the Rules formulated for country spirit suppliers." 2. Briefly stated facts as observed by the AO are that the assessee firm is deriving income from business of foreign liquor under the name and style of M/s. English Bazar Foreign Liquor Shop No. 1. During the course of scrutiny proceedings the AO found that the assessee made cash purchase exceeding Rs. 20,000/- or more from different parties in a single day to the tune of Rs. 1,29,11,500/- during the assessment year under consideration. It was submitted on behalf of the assessee that cash payments were received by the bonders/distributors through their sales representatives for an amount of less than Rs. 20,000/- in a single day, who generally hold ....
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.... relief to the assessee and he, wants the decision of Ld. CIT(A) to be reversed and the AO's order to be upheld in this regard. 4. On the other hand, the Ld. AR submitted that the assessee purchased country liquor from Bonded Ware Houses under the license issued by the Department of Excise, Govt. of W.B. According to Ld. AR, in fact, nobody can sell country liquor unless so permitted under the notification of Government of West Bengal and the bonders (dealers) are considered as Agents of Government of West Bengal. According to him, the assessee had purchased country liquor from few of such bonders. It was pointed out by the Ld. AR that one of the conditions for purchase of the liquor is that without payment of the entire value including the Excise, V A T and other levies goods would not be allowed to be lifted. According to him, the bonders who sells the goods to the assessee appoint their field agents for collection of the money from the retailers (like assessee) and deposits the money into the bank account maintained by the dealer/bonder in the particular city /town. The assessee's case was that it had made each payment of Rs. 20000/- or less to such agents who deposited t....
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....to the State Government and therefore provisions of sec. 40A( 3) are not applicable. It was submitted by Ld. AR that in the case of Golkunda Pachwai CS Shop the decision of Amrai Pachwai and CS Shop was considered wherein also similar view as that of in the case of Ritwik Kumar Bera was taken. The decision in the case of Amrai Pachwai and CS Shop was also confirmed by the Hon'ble Calcutta High Court. It was brought to our notice that in the case of Birgiri CS Shop the Hon'ble ITAT relied on its decision in the case of Ashoke Mondal ITA No. 873/K/2012 for Assessment year 2009-10 dated 6.2.2014 wherein it was recognized that payment for country sprit or country liquor has to be made to the ware house run by the State Government and the case was covered by Rule 6DD ( b). Similar view has been taken in the following cases for which copy of judgments have been filed. EtheI Bari C.S. Shop, Jalpaiguri ITA No. 1322/Kol/2017 decided on 20.10.2018. In this case, it was pointed out by the Ld. AR that the sellers of the liquor included the parties for payment to whom the provisions of Sec. 40A(3) have been applied in the case of the assessee. Sarvari Supplementary C.S. Shop ITA No. ....
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.... Govt. of West Bengal in the case of Riktwik Kumar Bera, ITA No. 2316/Kol/20-13 dated 21.02.2014 that the payment is covered under Rule 6DD(b) and, therefore, the provisions of sec. 40A(3) are not applicable. We note that the aforesaid decision of the Tribunal has been confirmed by the Hon'ble Calcutta High Court vide its order dated 11.06.2018 in ITAT No. 103 of 2014, GA 2127 of 2014. We note that in a similar case the coordinate bench of this Tribunal in the cases of Ashok Mondal Vs. ITO, Asansol in ITA No. 873/Kol/2012 dated 06.02.2014 for AY 2009-10 and in the case of M/s. Amrai Pachwai & C.S. Shop, supra has held as under: From the discussion above and the judicial precedent (supra), we are of the opinion that the issue is squarely covered by the aforesaid decisions of the coordinate Bench of this Tribunal, respectfully following the said decisions of the coordinate bench of this Tribunal, the finding of the Ld. CIT(A) on this issue stands confirmed. Therefore, the grounds raised by the revenue are liable to be dismissed. 6. In the result, the appeal of revenue is dismissed. Order pronounced in the open court on 3rd June, 2019 ============= Document 1 "7. We have....
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.... 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 is realize the necessary amount of duty, cost price and bottling charge, if there be any, at the prescribed rate and such other imposition, as may be prescribed by law, from the retail vendor to whom the country spirit to be issued from the concerned warehouse. It is also specifically mentioned in section (2) of the said notification that no retail vendor of country spirit shall deposit duty direct into the local treasury for issue of country spirit to be taken by him from the warehouse concerned, which clearly shows that the warehouse is for the supply of the country liquor, specifically, the warehouse is under the direct control and custody of the State Govt. The State Government has closed its doors in so far as the local treasury is concern....