9911796707
TMI Blog2019 (9) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... tax evasion in the transactions, despite the fact that such exception or allowance on the ground of genuineness of business transactions has not been provided either in section 40A(3) or Rule 6DD. 2. That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in relying relied upon the decisions of the Jurisdictional ITAT in the cases of Motor Ch. Mondal v. Income Tax 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of section 40A(3) of the Act and added the same to the total income of the assessee. Aggrieved, assessee preferred an appeal before the Ld. CIT(A), who allowed the assessee's appeal holding that the payments would be covered by Rule 6DD(b) and Rule 6DD(k) of the Rules. Aggrieved revenue is before us. 3. At the time of hearing before us, the Ld. DR assailing the decision of the Ld. CIT(A) referred to the case of Attar Singh Gurmukh Singh (1991) 59 Taxman 11 (SC) to state that the decision of the Ld. CIT(A) is incorrect. According to Ld. DR, the assessee's case does not fall in the exceptions given under Rule 6DD. According to him, from a perusal of circular No. 1 of 2009 of CBDT dated 27.03.2009 reveals that the scope of the rigors of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the money after collecting the same after keeping it in their cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to him, there is no dispute that the assessee purchased country liquor from bonders/dealers from their bonded ware house appointed under the notification of the Govt. of West Bengal and these dealers are the agents of Govt. of West Bengal. It was pointed out by the Ld. AR that in the case of Ritwik Kumar Bera ITA No. 2316/K/2013 dated. 21.2.2014 that the payment is covered under Rule 6DD(b) and therefore the provisions of sec. 40A(3) are not applicable. The aforesaid decision of the ITAT has been confirmed by the Hon'ble Calcutta High Court vide its judgment dated 11.6.2018. It was submitted by Ld. AR that the ITAT in the case of Sarbari Supplementary CS Shop in ITA No. 858 and 860/K/2016 has held that payment made into the ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment was genuine. The following judgments are cited: 1. ITATs judgment in the case of Sharma Eng. Supplier ITA No. 1846/K/2018 dated 28.12.2018 it was held vide para 7 as under: "since the AO has no doubted the genuineness of the purchase made by cash by the assessee from Paul Eng. Center, by applying the ratio as held by the Jurisdictional High Court of the opinion that no disallowance warranted so. We order deletion of the addition". 2. The ITAT Kolkata Bench in the case of Binod Kurnar Burnwal in ITA No. 1864/K/2017 pronounced on 12.12.2018 after considering a number of judgments on the issue has held that if the purchase is genuine no disallowance can be made u/s. 40A(3). 3. The ITAT in the case of Nirmal Kumar Das in ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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