M/s. Saha Medical, Jalpaiguri V. ITO, Ward-1(4), Jalpaiguri, Jalpaiguri

ITA 1247/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83082 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 28-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 28-08-2012
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Keywords: Opportunity of being heard; Corroborative evidences
• Section: 40A(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE S RI SHAMIM YAHYA, AM ] ITA NO.1247/KOL/2012 ASSESSMENT YEAR : 2009-10 ( APPELLANT ) (RESPONDENT) M/S.SAHA MEDICAL -VS- I.T.O., WARD-1(4), JALPAIGURI JALPAIGURI (PAN:AARFS 6217 L) FOR THE APPELLANT SHRI SUNIL SURANA, CA FOR THE RESPONDENT SHRI RAVI JAIN, CIT(DR) DATE OF HEARING : 02.09.2014 DATE OF PRONOUNCEMENT : 03. 09.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST ORDER OF LD. C.I.T.(A)- JALPAIGURI DATED 05.07.2012 AND PERTAINS TO ASSES SMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL RAISED IN THIS APPEAL REA D AS UNDER :- 1. FOR THAT THE ORDER OF THE LD.CIT(A) IS ARBITRAR Y, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.5,27,196/- UNDER SEC.40A(3) WHEN ALL THE PAYMENTS WERE MADE ON BANKI NG HOLIDAYS AND WERE NECESSITATED DUE TO URGENT BUSINESS NEEDS 3. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION U/S 40A(3) WHEN THE GENUINENESS OF THE PAYMENTS WERE NEVER DOUBTED AND DISPUTED BY THE AO. 4. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ORDER OF THE CIT(A) BE MODIFIED AND THE ASSESSEE BE GIVEN THE RELIEF PRAYE D FOR. 5. FOR THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUND BEFORE OR AT THE TIME OF HEARING. 3. IN THIS CASE THE AO NOTED THAT ASSESSEE DERIVE D INCOME FROM A RETAIL MEDICINE SHOP. WHILE EXAMINING THE CASH BOOK OF THE ASSESSEE THE AO FOUND THAT THE ASSESSEE FIRM MADE CASH PAYMENT EXCEEDING RS.20,000/- TO ONE OF ITS SUPPLIERS, NAMELY M/S.V.K.ENTERPRISES ON DIFFERENT DATES TOTALING RS. 5,27,196/-. THE ASSESSEE EXPLAINED THAT PAYMENTS WERE MADE IN A DAY BUT IN RESPECT OF MULTIPLE BILLS. HOWEVER AO OBSERVED THAT THIS CONTENTION DOES NOT MAKE THESE P AYMENTS OUTSIDE THE PURVIEW OF ITA NO.1247/K/2012 M/S.SAHA MEDICAL A.YR.2009-10 2 SECTION 40A(3) OF THE ACT. HENCE THE AO DISALLOWED THE ENTIRE PAYMENT OF RS.5,27,196/-. 4. UPON ASSESSEES APPEAL THE LD. CIT(A) HELD AS UN DER : I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD.AR AND ALSO PERUSED THE ASSESSMENT ORDER. AS STATED, IN COURSE OF HEARING D ATED 26.06.2012, THE ASSESSEE WAS REQUESTED TO MAKE WRITTEN SUBMISSION, IF ANY, ALONG WITH SUPPORTING EVIDENCE THAT THOSE PAYMENTS WERE MADE AGAINST MULTIPLE SMALL BILLS RAI SED ON EACH DATE SEPARATELY, BUT THE ASSESSEE DID NOT APPEAR ON THE NEXT DATE OF HEARING NEITHER MADE ANY ADJOURNMENT APPLICATION. THEREFORE, IT CAN BE PRESUMED THAT THE ASSESSEE WAS NOT IN A POSITION TO SUBSTANTIATE THE CLAIM MADE BY THEM. THE ASSESSEE A LSO FAILED TO FURNISH THE LEDGER A/C OF THE SELLER TO ESTABLISH THAT SEVERAL SMALL BILLS WERE RAISED ON EACH DATE AND SEPARATE CASH PAYMENTS WERE MADE AGAINST EACH BILL. AS SUCH, IT IS HELD THAT THE CONTENTION OF THE ASSESSEE HAS NO MERIT. PROVISIONS OF SEC.40A(3) WIL L APPLY IN CASE WHERE PAYMENTS WERE GENUINE BUT MADE IN CONTRAVENTION OF PROVISIONS OF THAT SECTION. THE AO FURTHER HELD THAT ALL THOSE PAYMENTS ARE NOT COVERED UNDER RULE 6DD OF THE IT RULES, NEITHER THE AR COULD ESTABLISH THAT UNDER EXCEPTIONAL CIRCUMSTANCE S, THE ASSESSEE HAD MADE THE CASH PAYMENTS. THEREFORE, THE AO HAS RIGHTLY DISALLOWED THE SAME. HER ACTION IS CONFIRMED. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL B EFORE US. 5. WE HAVE HEARD BOTH THE COUNSEL AND CAREFULLY PER USED THE RECORDS. THE LD. COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT MAJORITY OF THE PAYMENTS WERE MADE ON BANKING HOLIDAYS. HENCE HE CONTENDED THAT THESE PAY MENTS SHOULD NOT BE DISALLOWED. THE LD. COUNSEL OF THE ASSESSEE FURTHER CONTENDED T HAT GENUINENESS OF THE EXPENDITURE IS NOT IN DOUBT. HENCE THE DISALLOWANCE SHOULD NOT BE MADE. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND CAREFULLY PERUSED THE RECORDS. WE FIND THAT THE SUBMISSIONS OF THE ASSESS EE BEFORE US HAVE NOT AT ALL BEEN MADE BEFORE THE AUTHORITIES BELOW. IN FACT THE LD. CIT(A) HAS NOTED THAT THE ASSESSEE HAS FAILED TO MAKE ANY SUBMISSIONS BEFORE HIM. NOW SINCE THE ASSESSEE IS GIVING A DIFFERENT EXPLANATION BEFORE US WE DEEM IT PROPER T O REMIT TO THE FILE OF AO. AO IS DIRECTED TO DECIDE THE ISSUE AFRESH AFTER GIVING TH E ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. ITA NO.1247/K/2012 M/S.SAHA MEDICAL A.YR.2009-10 3 7. IN THE RESULT THE APPEAL OF ASSESSEE STANDS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 03.09.2014. SD/- SD/- [ MAHAVIR SINGH ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 03.09.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. M/S. SAHA MEDICAL, BINNAGURI BAZAR, JALPAIGURI, WES T BENGAL-735203. 2 I.T.O., WARD-1(4), JALPAIGURI 3 . CIT(A)-JALPAIGURI 4. CIT - KOLKATA. 5. CIT-DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES