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TMI Blog2016 (10) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T.A. No. 291/KOL/ 2014 - - - Dated:- 4-10-2016 - Shri P.M. Jagtap, Accountant Member and Shri K. Narasimha Chary, Judicial Member Shri A.K. Chakraborty, Advocate, Shri N.K. Chakraborty, Advocate and Miss Payel Verma, A.R., for the assessee Shri Sallong Yaden, Addl. CIT, D.R., for the Department ORDER Per Shri P.M. Jagtap, A.M. This appeal filed by the assessee is directed against the order of ld. Commissioner of Income Tax (Appeals), Asansol dated 17.12.2013 and the solitary issue involved therein relates to the disallowance of ₹ 56,76,743/- made by the Assessing Officer and confirmed by the ld. CIT(Appeals) under section 40A(3) of the Act. 2. The assessee in the present case is a partnership firm, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In regard to reliance to paragraph 4 of the order of Hon. Income Tax Appellate Tribunal in M/s Arpita Traders vs ITO Ward-2 Cooch Behar in ITA No.1542/KoI/2012 it can be seen that it is not a decision on law. It narrates a compulsive situation. A part of very same order is being relied upon by me. In paragraph 5 it is stated that when the Government makes is compulsory to pay in cash . Whether a compulsion exists or not is matter of fact and compulsion is a pre-requisite to be proved. The appellant is duty bound to explain the compulsion. In other words on facts and circumstances of case M/s. Arpita Traders may have established compulsion, but what is needed is that compulsion is established by the a appellant on the facts and circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax Appellate Tribunal referred to here helps his cause in no manner. 8. Upon going through the submission, I find that no case is made out to prove that any of sub-rules of rule 6DD applies. For applying rule 6DD(b) mandate that cash payment is compulsory is to be proved. For applying rule 6DD(k), not only the mandate that cash payment is compulsory it to be proved but also that the bottling plant, which as I had already stated is a private company with distinct status and PAN, is agent of Government. Just because tax is collected and remitted to Government the Private Company does not become Government for any purpose . Aggrieved by the order of the ld. CIT(Appeals), the assessee has filed this appeal before the Tribunal. 4. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusive privilege of supplying or selling country spirit by wholesale has been granted under section 22 of the Act, or of a licensed wholesale vendor of country spirit. The above definition 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 Commissioner of State Excise and as such is a State Government establishment. It is also pertinent to note that the expenditure in relation to such warehouse is borne by the State Government or by the licensee to whom the exclusive privilege is granted u/s 22 of the Bengal Excise Act, 1909. Hence there could be no doubt that the warehouse is establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to make payment in cash for goods or services on behalf of such person. The payment made by the assessee retail vendor to the Principal, Government of West Bengal through its wholesale agent. The relationship between the assessee (authorized retailer) and Government of West Bengal (the supplier) acting under West Bengal Excise Rules through its Authorised Wholesaler Licensee (Agent), both defacto 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 6DD(k) of the Rules . 5. As the issue involved in the present appeal as well as all the material facts relevant thereto are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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