M/s. Pasupati Feeds, Cuttack V. ACIT, Circle-2(1), Cuttack, Cuttack

ITA 112/CTK/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2644 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 05-06-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2013
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: P R MOHANTY

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND , HONBLE SHRI GEORGE MATHAN, JUDICIAL MEMBER / I.T.A.NO. 112/CTK/2013 / ASSESSMENT YEAR 2009 - 10 M/S.PASUPATI FEEDS, AT:TANGI, KOTASAHI, CUTTACK. PAN: AAEFP 4117 F - - - VERSUS - ACIT, CIRCLE 2(1), CUTTACK. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI P.R.MOHANTY, AR / FOR THE RESPONDENT: / S MT. PARAMITA TRIPATHY, CIT - DR / DATE OF HEARING: 05.06.2013 / DATE OF PRONOUNCEMENT: 05.06 .2013 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THE ASSESSEE IS IN APPEAL ON THE SOLITARY ISSUE THAT THE DISALLOWANCE U/S.40A(3) OF THE I.T.ACT AMOUNTING TO RS.58,85,136 HAS BEEN CONFIRMED BY THE LEARNED CIT(A) INSPI TE THE ISSUE HAVING BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE ITAT, CUTTACK BENCH IN ASSESSEES OWN CASE FOR THE AYS 2006 - 07 AND 2008 - 09 WHICH COPY OF THE ORDER DT.14.8.2012 IS BEING PLACED ON RECORD. THE COPY OF THE LEARNED CIT(A)S ORDER FORMING PART OF THE APPEAL MEMO IS DT.28.12.2012. 2. AT THE OUTSET THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE ITAT IN ASSESSEES OWN CASE INSOFAR AS IN THE EARLIER ASSESSMENT YEAR WHICH COPY OF THE TRIBUNAL ORDER HAS BEEN PLACED ON RECORD , RELATES TO PART CONFIRMATION OF THE DISALLOWANCE U/S.40A(3) WHICH WAS ADJUDICATED BY THE TRIBUNAL CANNOT 2 I.T.A.NO. 112/CTK/2013 STAND THE TEST OF LAW WHEN THE TRIBUNAL WAS APPRISED OF THE FACT THAT THE DISALLOWANCE U/S.40(A) (IA) CANNOT BE CO - TERMINUS FOR DISALLOWANCE U/S.40A(3). 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LEARNED DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. SIMILAR ISSUE, AS BRIEFLY STATE BY THE LEARNED COUNSEL OF THE ASSESSEE, WAS BEFORE US AS NOTED BY THE TRIBUNAL IN ASSESSEES OWN CASE ON PAGE 12 OF THE ORDER WHEN PART OF THE COST OF GOODS WERE TO BE PAID FOR ALONG WITH THE FREIGHT CHARGES WHEN THE MOOT QUESTION WAS WHETHER THE PURCHASE OF GOODS BEING THE RAW MATERIALS COULD BE PURCHASED IN CASH AND WA S CONSIDERED BY THE TRIBUNAL TO BE ALLOWABLE INSOFAR AS IT IS COVERED BY THE EXCEPTION PROVIDED U/R.6DD. IT WAS NOT THE CASE OF THE ASSESSING OFFICER TO DISALLOW PART OF TRANSPORTATION COST HAVING BEEN BORNE BY THE ASSESSEE UNDER A CONTRACT WITH THE TRANSP ORTERS TO BE CONSIDERED FOR DISALLOWANCE U/S.40(A)(IA) WHEN SIMULTANEOUSLY THE TRANSPORTATION FREIGHT WHICH HAS BEEN CLAIMED EXCEED RS.20,000 AS PART OF THE GOODS AS WELL. WE DO FIND THAT THE ASSESSING OFFICERS ENDEAVOR TO DISALLOW THE CASH PAYMENT TO TRA NSPORTERS DOES NOT STAND THE TEST INSOFAR AS THE LEARNED CIT - DR HAS NOT BEEN ABLE TO POINT OUT THAT THE TRANSPORTATION WHICH HAS BEEN SEPARATELY CLAIMED WAS NOT PART OF THE COST OF GOODS PURCHAS ED BY THE ASSESSEE BEING MANUFACTURER OF CATTLE FEEDS FOR WHI CH INGREDIENTS ALONE COULD HAVE BEEN PURCHASED IN CASH WAS DULY COVERED BY RULE 6DD AS A MATTER OF PAYMENT TO AN AGENT WHETHER BEING TRANSPORTER COULD BE CONSIDERED FOR THE PAYMENT FOR TRANSPORTATION OR GOODS CARRIED BY THE TRANSPORTERS WHICH GOODS DEFINI TELY HAVE TO BE PURCHASED IN CASH OR TRANSPORTED WHEN THE OWNER OF THE GOODS TOOK THE PAYMENT FOR THE GOODS ALONG WITH THE FREIGHT PAID TO THE TRUCK DRIVERS. THEREFORE, WE ARE OF THE 3 I.T.A.NO. 112/CTK/2013 CONSIDERED VIEW THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWA NCE AS MADE BY THE ASSESSING OFFICER U/S.40A(3) INSPITE OF THE UNDISPUTED FACTS BROUGHT O N RECORD BY THE ASSESSEE BEFORE THE ASSESSING OFFICER WHICH HAVE BEEN CONFIRMED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL EARLIER DO NOT REQUIRE REVISIT INSOFAR AS TH E LEARNED CIT(A) REQUIRED THE ASSESSEE TO FURTHER PROVE SUCH DISTINCTION OF GOODS BEING PAID FOR ALONG WITH THE TRANSPORT COST. IN THIS VIEW OF THE MATTER, THE DISALLOWANCE AS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT(A) IS DIRECTED TO BE DELETED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. SD/ - SD/ - ( ) , (GEORGE MATHAN),JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 05.06.2013 (ORDER PRONOU NCED IN THE OPEN COURT) - COPY OF THE ORDER FORWARDED TO: 1. / THE APPELLANT : M/S.PASUPATI FEEDS, AT:TANGI, KOTASA HI, CUTTACK. 2 / THE RESPONDENT: ACIT, CIRCLE 2(1), CUTTACK. 3. / THE CIT, 4. ( ) / THE CIT(A), 5. / DR, CUTTACK BENCH 6. GUARD FILE . / TRUE COPY, / BY ORDER, ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. 4 I.T.A.NO. 112/CTK/2013 APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 05.06.2013 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06.06.2013 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 07.06.2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..