Nithali Ram Sah, Katihar V. ITO, Ward-Katihar, Katihar

ITA 161/PAT/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9155 (ITAT-PATNA)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 03-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYA BISWAS
• Section: 40A(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , SMC BENCH, PATNA BEFORE SHRI CHANDRA MOHAN GARG, J UDICIAL MEMBER ./ ITA NO. 161 / PAT /201 8 ( / ASSESSMENT YEAR : 20 0 9 - 20 10 ) NITHALI RAM SAH (HUF) , PROP: M/S NITHALI CONSTRUCTION, ROSHNA, KATIHAR - 854117 VS. ITO, WARD - KATIHAR ./ PAN NO. : A ADHS 6031 G ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : NONE /REVENUE BY : SHRI SUPRIYA BISWA S, JCIT - DR / DATE OF HEARING : 1 6 /0 9 /2019 / DATE OF PRONOUNCEMENT : 18 /0 9 /2019 / O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY LEARNED CIT(A), BHAGALPUR , DATED 14.12.2011 FOR THE ASSESSMENT YEAR 20 0 9 - 20 10 . 2. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THE CASE WAS CALLED FOR SECOND ROUND OF HEARING. THEREFORE, I PROCEEDED TO DISPOSE OFF THE APPEAL OF THE ASSESSEE AFTER CONSIDERING THE SUBMISSIONS OF LD.DR AND THE MATERIAL EVIDENC E AVAILABLE ON RECORD. 3 . THE ONLY ISSUE AGITATED BY THE ASSESSEE IS THAT THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER U/S.40A(3) OF THE ACT. FURTHER IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS SUBMITTED THAT THE PAYMENTS W ERE MADE TO THE TRUCK DRIVERS AGAINST DELIVERY OF GOODS (COAL) AT THE ASSESSEES PREMISES AT KATIHAR ON THE DATES WHEN ITA NO . 161 / PAT /201 8 2 THERE WERE SUNDAYS AND BANK HOLIDAYS , THEREFORE, THE TRANSACTI ONS ARE COVERED UNDER RULE 6DD(J ) AND ( K ) OF THE INCOME TAX RULES 1962. 4 . FACTS IN BRIEF ARE THAT ASSESSEE IS AN INDIVIDUAL, PROPRIETOR OF M/S. NITHALI CONSTRUCTIONS, ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF THE BRICKS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO OBSERVED THAT FROM THE 8 BILLS FOR PURCHASE S OF COAL PERTAINING TO THE YEAR, ONE PARTICULAR BILL OF RS. 1,17, 150/ - OF M/S. MAA KALI COAL SUPPLIERS, GAWAHATI DID NOT PERTAIN TO THE YEAR UNDER CONSIDERATION AND HENCE THE SAME WAS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME. THEREAFTER, FROM THE REMA INING 7 PURCHASE BILLS, HE OBSERVED THAT THE PAYMENTS FOR PURCHASES WERE MADE IN CASH, IN EXCESS OF RS.20,00 / - EACH AGAINST 4 BILLS. ACCORDINGLY, T HE AO DISALLOWED THE CORRESPONDING AMOUNT OF RS .4,13,145/ - BY INVOKING THE PROVISIONS OF SECTION 40A(3) OF TH E ACT. 5 . IN APPEAL, THE CIT(A) ALLOWED THE GROUND RAISED BY THE ASSESSEE WITH REGARD TO ADDITION OF RS.1,17,150/ - SUBJECT TO VERIFICATION BY THE AO, HOWEVER, UPHELD THE ADDITION MADE U/S.40A(3) OF THE ACT. NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE TH E TRIBUNAL. 6 . NONE APPEARED ON BEHALF OF THE ASSESSEE, WHEREAS L D.DR STRONGLY RELIED ON THE ORDERS OF AUTHORITIES BELOW. 7 . ON CAREFUL CONSIDERATIONS OF THE ABOVE RIVAL SUBMISSIONS OF BOTH THE PARTIES AS WELL AS THE ORDERS OF BOTH THE AUTHORITIES BELOW, I FIND THAT THE ASSESSEE HAS PAID THE AMOUNTS OF RS.4,13,145/ - ON THE DELIVERY OF GOODS TO THE AGENT OF THE SELLER, I.E. THE TRUCK DRIVER/OWNER, HOWEVER, THE GOODS WERE RECEIVED IN ALL THE EIGHT OCCASIONS ON A HOLIDAY, THEREFORE, THE ITA NO . 161 / PAT /201 8 3 ASSESSEE COULD NOT MADE PAYMENT BY WAY OF ANY DD OR CROSSED CHEQUE. ON BEING ASKED BY THE ASSESSING OFFICER, THE ASSESSEE SUBMITTED THE ENTRY DATE AFTER ONE, TWO OR 8 DAYS AFTER THE DATE OF ISSUE OF BILLS. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. BEFORE THE CIT(A) THE ASSESSEE HAS ALSO REITERATED THE SUBMISSIONS AS WAS MADE BEFORE THE ASSESSING OFFICER, HOWEVER, THE CIT(A) OBSERVED THAT THERE IS A CONSIDERABLE TIME GAP BETWEEN THE DATE OF BILL ING AND THE DATE OF RECEIPT OF THE GOODS AND UPHELD THE ACTION OF ASSESSING OFFICER. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS SUBMITTED THAT THE TRUCK OWNERS SUPPLIED THE COAL IN THE EVENING AND ACTUAL DATE OF RECEIPT WAS ONE OR TWO DAYS LATER WHICH FALL S ON EITHER SATURDAY, SUNDAY OR BANK HOLIDAYS, THEREFORE, THE PAYMENTS MADE BY THE ASSESSEE FALLS UNDER THE PROVISIONS OF RULE 6DD(J ) & ( K ) OF THE INCOME TAX RULES 1962 . FOR THE SAKE OF COMPLETENESS OF THE ORDER, I WOULD LIKE TO REPRODUCE PROVISIONS OF RUL E 6DD(J ) & ( K ) OF THE INCOME TAX RULES 1962 , WHICH READ AS UNDER : - 6DD . (J) WHERE THE PAYMENT WAS REQUIRED TO BE MADE ON A DAY ON WHICH THE BANKS WERE CLOSED EITHER ON ACCOUNT OF HOLIDAY OR STRIKE; (K) WHERE THE PAYMENT IS MADE BY ANY PERSON TO HIS AGE NT WHO IS REQUIRED TO MAKE PAYMENT IN CASH FOR GOODS OR SERVICES ON BEHALF OF SUCH PERSON; 8 . IT IS CLEAR FROM THE ABOVE PROVISIONS OF RULE 6DD(J ) & ( K ) OF THE INCOME TAX RULES 1962 , THAT IF THE PAYMENT HAS BEEN MADE ON A DAY WHICH THE BANKS WERE CLOSED E ITHER ON ACCOUNT OF HOLIDAY OR STRIKE, SUCH PAYMENT MADE BY ANY PERSON TO HIS AGENT WHO IS REQUIRED TO MAKE PAYMENT IN CASH FOR GOODS OR SERVICE ON BEHALF OF SUCH PERSON, NO ITA NO . 161 / PAT /201 8 4 DISALLOWANCE SHALL BE MADE U/S.40A(3) OF THE ACT . IN THE PRESENT CASE IN HAND, THE ASSESSEE HAS SUBMITTED BEFORE BOTH THE AUTHORITIES BELOW THAT THE TRUCK OWNERS SUPPLIED THE COAL IN THE EVENING AND THE ACTUAL DATE OF RECEIPT WAS ONE OR TWO DAYS LATER WHICH FALLS ON EITHER SATURDAY, SUNDAY OR BANK HOLIDAYS. IT IS ALSO NOT DISPUTED BY BO TH THE AUTHORITIES BELOW IN THEIR RESPECTIVE ORDERS THAT THE ASSESSEE HAS NOT MADE ANY PAYMENT TO THE TRUCK DRIVERS AGAINST DELIVERY OF GOODS(COAL) AT THE ASSESSEES PREMISES ON ANY HOLIDAYS . THEREFORE, IN VIEW OF THE ABOVE OBSERVATIONS AND THE PROVISIONS OF RULE 6DD(J ) AND ( K ) OF THE INCOME TAX RULES 1962 , I AM OF THE CONSIDERED VIEW THAT THE ADDITION MADE BY THE ASSESSING OFFICER U/S.40A(3) OF THE ACT AND CONFIRMED BY THE CIT(A) DESERVES TO BE DELETED AND I HOLD SO. ACCORDINGLY, THE SOLE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED . 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 /0 9 /201 9 . SD/ - ( C.M.GARG ) / JUDICIAL MEMBER /PATNA ; DATED 18 / 0 9 /201 9 PRAKASH KUMAR MISHRA , S R.P.S. (ON TOUR) / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE S ECRETARY ) , / ITAT, PATNA 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, PATNA 6. / GUARD FILE. //TRUE COPY//