Praveen Roadlines Pvt. ltd., New Delhi V. ITO, New Delhi

ITA 1933/DEL/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8902 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 12-02-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 19-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Assessee Lawyers: SUNIL BHATIA
• Keywords: Opportunity of being heard
• Section: 40A(3)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL IN (DELHI BENCH F NEW DELHI) BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER A ND SHRI C.M.GARG, JUDICIAL MEMBER ITA NO. 1933/DEL/2011 (ASSESSMENT YEAR: 2006-07) PRAVEEN ROADLINES PVT. LTD. VS. ITO C/O. BHATIA & CO., CA WARD-14(3) 608, PADMA TOWER-I, RAJINDRA PLACE NEW DELHI NE W DELHI PAN : AAACP5322P (APPLICANT) (RESPONDENT) ASSESSEE BY : SH. SUNIL BHATIA, C.A. REVENUE BY : SHRI VIKRAM SAHAY , SR. DR. ORDER PER C.M.GARG, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) XVII, NEW DELHI DATED 8.2.2011 IN THE APPEAL NO. 56 / CIT (A) XVII/ DEL/ 2010 / 2010- 11 FOR ASSESSMENT YEAR 2006-07. ITA NO. 1933/ DEL/2011 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN THIS APPEAL :- 1. THAT THE ORDER OF THE LD. ASSESSING OFFICER IS ARBITRARY, BEYOND THE FACTS AND REPLETE WITH PREJUD ICIAL OBSERVATION WHICH ARE EITHER UNFOUNDED OR ARE NOT SUSCEPTIBLE OF GIVING RISE TO ANY ADVERSE CONCLUSIO N. 2. THAT THE LD. ASSESSING OFFICER ERRED IN LAW AND ON FACTS IN MAKING THE ADDITION OF RS. 93,731/- U/S 40 A(3) OF THE INCOME TAX ACT AND THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 93,731/-. 3. THAT THE LD. ASSESSING OFFIC ER MISREPRESENTED HIMSELF IN INVOKING THE PROVISIONS OF SECTION 40A(3 ) OF THE INCOME TAX ACT. 4. THAT THE LD. ASSESSING OFFICE R MISREPRESENTED HIMSELF IN NOT ALLOWING THE EXEMPTION AVAILABLE UND ER RULE 6DDOF THE INCOME TAX RULES. 5. THAT THE LD. ASSESSING OFFICER AS WELL AS THE LD. CIT(A) OMITTED TO ANALYSE THE INDIVIDUAL TRANSACTIO NS. 3. BRIEFLY, STATED THE FACTS GIVING RIGHTS TO THIS APPEAL DURING THE ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER NOTE D THAT THE EXPENSES INCURRED BY THE ASSESSEE ABOVE PRESCRIBED LIMIT IN VIEW OF SECTION 40A (3) OF THE INCOME TAX ACT, 1961 (FOR SH ORT ACT) , 20% OF THE SAME HAVE TO BE DISALLOWED AND ADDED TO THE INC OME OF THE ASSESSE AND THE AO MADE ADDITION OF RS. 93,731/- BE ING 20% OF RS. 4,68,655/-. AGGRIEVED ASSESSEE PREFERRED AN APP EAL BEFORE CIT(A) ITA NO. 1933/ DEL/2011 3 WHICH WAS ALSO DISMISSED VIDE ORDER DATED 23.12.200 9 AND THE ADDITION MADE BY THE AO WAS CONFIRMED. THE ASSESSEE CARRIED THE MATTER TO TH E ITAT IN ITA NO. 308/DEL/2010 WHICH WAS ALLOWED FOR STATISTICAL PURP OSES RESTORING THE MATTER TO THE FILE OF CIT(A) FOR DE NOVO ADJUDICATI ON BY PASSING SPEAKING ORDER. AS PER DIRECTIONS OF THE TRIBUNAL IN ORDER DATED 22.06.2010 (SUPRA) CIT(A) AGAIN DISMISSED THE APPEA L OF THE ASSESSEE BY PASSING THE IMPUGNED ORDER DATED 08.02. 2011 (SUPRA). NOW THE ASSESSEE IS BEFORE THIS TRIBUNAL WITH THE G ROUNDS AS REPRODUCED HERE IN ABOVE. 4. APPLICATION OF THE ASSESSEE FOR ADDITIONAL GROUNDS :- APPEAL OF THE ASSESSEE UNDER RULE 11 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 DATED 28.2.2012 WE HAVE HEARD ARGUMENT OF BOTH THE SIDES AND CAREFULLY PERUSED THE RELEVANT M ATERIAL PLACED ON THE RECORD TO SUPPORT APPLICATION OF THE ASSESSEE F OR ADMISSION OF ADDITIONAL GROUNDS. THE LD. ASSESSEES REPRESENTATI VE (AR) SUBMITTED THAT THE ADDITIONAL GROUNDS PERTAINING TO THE POSITION OF LAW IN FAVOUR OF THE ASSESSEE MAY KINDLY BE ADMITTED AS THESE ARE ITA NO. 1933/ DEL/2011 4 NECESSARY FOR PROPER ADJUDICATION OF THE ISSUE IN A DDITION TO THE GROUNDS RAISED BY THE ASSESSEE IN THE MEMORANDUM OF APPEAL FILED ON 19.4.2011. THE LD. DEPARTMENTAL REPRESENTATIVE R EPLIED THAT THIS IS A 2 ND ROUND ON LITIGATION BEFORE TRIBUNAL AND THE ASSESS EE DID NOT BOTHER TO RAISE THIS GROUND DURING EARLIER ROUND OF PROCEEDINGS NEITHER BEFORE AUTHORITIES BELOW NOR BEFORE THE TRIBUNAL. T HEREFORE, THE SAME CANNOT BE ADMITTED FOR ADJUDICATION. HOWEVER, THE L D. DR ALTERNATIVELY SUBMITTED THAT IF IT IS FOUND JUST AN D PROPER THEN THE LEGAL OBJECTION OF THE ASSESSEE MAY BE CONSIDERED. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, WE ARE OF THE VIEW THAT THE ASSESSEE WISH TO RAISE ADDITIONAL GROUNDS IN ADDITION TO GROUNDS SUBMITTED RAISED BY THE ASSESSEE IN THE MEM - ORANDUM OF APPEAL FILED ON DATED 19.04.2011 BY WAY OF APPLICATION IN HAND.THE ASSESSEE HAS SOUGHT TO RAISE FOLLOWING ADD ITIONAL GROUNDS :- ADDITIONAL GROUND : 1. THAT THE LD. AO COMPLETED THE ASSESSMENT WITH OUT AFFORDING THE ASSESSEE SUFFICIENT OPPORTUNITY OF BE ING HEARD. 2. THAT THE LD. CIT(A) ERRED ON FACTS IN CONCLUD ING THAT THE CASE OF THE ASSESSEE WAS NOT COVERED UNDER RULE 6DD OF THE INCOME TAX RULES. ITA NO. 1933/ DEL/2011 5 ON CAREFUL CONSIDERATION ON ABOVE SUBMISSION S OF BOTH THE PARTIES AND PERUSAL OF THE RELEVANT MATERIAL PLACED ON RECORD, INTER ALIA, ORDERS OF THE AUTHORITIES BELOW & ORDER OF TH E TRIBUNAL DURING FIRST ROUND OF LITIGATION, IMPUGNED ORDER THE CIT(A) AND THE GROUNDS RAISED BY THE ASSESSEE IN THE MEMORANDUM APPEAL FILED ON 1 9.04.2011 AND ADDITIONAL GROUNDS AS REPRODUCED ON ABOVE. WE ARE O F THE VIEW THAT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ARE R ELATED TO THE MAIN ISSUE OF LAW AND FACTS WHICH ARE ALREADY ON RECORD AND WITHOUT EXPRESSING ANY VIEW ON MERITS WE DEEM IT PROPER TO ADMIT THESE ADDITIONAL GROUNDS FOR CONSIDERATION AND HENCE, ADD ITIONAL GROUND RAISED BY THE ASSESSEE ARE ADMITTED FOR CONSIDERATI ON AND ADJUDICATION. ACCORDINGLY, APPLICATION OF THE ASSE SSEE IN THIS REGARD IS ALLOWED. 5. ADDITIONAL GROUND NO. 1 OF THE ASSESSEE :- THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER COMPLETED THE ASSESSMENT PROCEEDINGS WITHOUT AFFORDING THE ASSESSEE SUFFICIE NT OPPORTUNITY OF BEING HEARD. THE LD. AR SUBMITTED THAT THE RELEVANT MATERIAL TO SUPPORT THE CONTENTION OF THE ASSESSEE WAS PLACED B EFORE THE ITA NO. 1933/ DEL/2011 6 AUTHORITIES BELOW WHICH WAS NOT CONSIDERED P ROPERLY AND THE ASSESSEE WAS DEPRIVED OF OPPORTUNITIES OF BEING HEA RD. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) DRAWN OUR ATTENTIO N TOWARDS ASSESSMENT ORDER DATED 15.12.2008 AND SUBMITTED THA T THE ASSESSING OFFICER GRANTED DUE OPPORTUNITY OF HEARIN G FOR THE ASSESSEE AND AFTER DUE CONSIDERATION OF THE EXPLANA TION AND SUBMISSION OF THE ASSESSEE, THE ISSUE HAS BEEN ADJ UDICATED AS PER PROVISIONS OF THE ACT AND THEREFORE, IT CANNOT BE S AID THAT THE ASSESSING OFFICER COMPLETED THE ASSESSMENT WITHOUT AFFORDING THE ASSESSEE DUE OR SUFFICIENT OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. 6. ON CAREFUL CONSIDERATION ON ABOVE AND V IGILANT PERUSAL OF THE ASSESSMENT ORDER DATED 15.12.2008, WE NOTE THAT AS PER ORDER SHEET ENTRY DATED 12.12.2008. THE ASSESSING OFFICER ASKED THE ASSESSEE THAT BY THE CASH PAYMENTS EXCEEDING RS. 20,000/- MA DE TO KESHAV MOTORS MAY NOT BE ADDED. AND IN COMPLIANCE TO THIS LETTER THE ASSESSEE FILED REPLY VIDE LETTER DATED 8.12.2008 AN D SUBMITTED EXPLANATION WHICH WAS CONSIDERED AND THE ASSESSING OFFICER RECORDED ITA NO. 1933/ DEL/2011 7 HIS CONCLUSION ON THE ISSUE AFTER MENTIONIN G EXPLANATION AND SUBMISSION OF THE ASSESSEE AND THE RELEVANT PROVISI ONS OF THE ACT. THEREFORE, UNDER THESE FACTS AND CIRCUMSTANCES, IT CANNOT BE HELD THAT THE ASSESSING OFFICER COMPLETE ASSESSMENT PROC EEDINGS WITHOUT AFFORDING THE ASSESSEE SUFFICIENT OPPORTUNITY OF BE ING HEARD. ACCORDINGLY ADDITIONAL GROUND NO. 1 OF THE ASSESSEE IS DISMISSED. 7. ADDITIONAL GROUND NO. 2 & GROUND NO. 1 TO 5 OF THE ASSESSEE :- HAVING HEARD ARGUMENT OF BOTH THE SIDES AN D CAREFUL PERUSAL OF THE RELEVANT MATERIAL PLACED ON THE RECO RD, INTER ALIA, RATIO OF THE DECISION RELIED BY BOTH THE PARTIES. AT THE VERY OUTSET, WE FIND IT NECESSARY RELEVANT TO REPRODUCED PROVISION OF SECTI ON 40A(3) OF THE ACT AND RULE 6DD OF THE (G), (J) & (K) INCOME TAX R ULES, 1962 WHICH READ AS UNDER :- SECTION 40A(3) :- WHERE THE ASSESSEE INCURS ANY EXPENDITURE IN RESPECT OF WHICH A PAYMENT OR AGGREGATE OF PAYMENTS MADE TO A PERSON IN A DAY, OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT, EXCEEDS TWENTY THOUSAND RUPEES, NO DEDUCTION SHALL BE ALLOWED IN RESPECT OF SUCH EXPENDITURE. ITA NO. 1933/ DEL/2011 8 6DD. NO DISALLOWANCE UNDER SUB-SECTION (3) OF SECTION 40A SHALL BE MADE AND NO PAYMENT SHALL BE DEEMED TO BE THE PROFITS AND GAINS OF BUSINESS OR PROFESSION UND ER SUB- SECTION (3A) OF SECTION 40A WHERE A PAYMENT OR AGGR EGATE OF PAYMENTS MADE TO A PERSON IN A DAY, OTHERWISE TH AN BY AN ACCOUNT PAYEE CHEQUE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT, EXCEEDS TWENTY THOUSAND RUPEES IN THE CASES AND CIRCUMSTANCES SPECIFIED HEREUNDER, NAMELY : ( G ) WHERE THE PAYMENT IS MADE IN A VILLAGE OR TOWN, WHICH ON THE DATE OF SUCH PAYMENT IS NOT SERVED BY ANY BANK, TO ANY PERSON WHO ORDINARILY RESIDES, OR IS CARRYING ON ANY BUSINESS, PROFESSION OR VOCATION, I N ANY SUCH VILLAGE OR TOWN; ( 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 AGENT WHO IS REQUIRED TO MAKE PAYMENT IN CASH FOR GOODS OR SERVICES ON BEHALF OF SUCH PERSON; 8. THE LD. AR SUBMITTED THAT THE ASSESSING OF FICER WENT BEYOND THE FACTS AND CIRCUMSTANCES OF THE CASE AND ACTED A RBITRARILY WITH PREJUDICIALLY OBSERVATION WHICH WERE ERROR UNFOUNDE D OR WERE NOT SUSTAINABLE OF GIVING RISE TO ANY ADVERSE CONCLUSIO N AGAINST THE ASSESSEE IN MAKING THE ADDITION OF RS. 93,731/- U/ S 40A(3) OF THE ACT. THE LD. AR, FURTHER, CONTENDED THAT THE ASSESS ING OFFICER MISREPRESENTED HIMSELF INVOKING THE PROVISIONS OF S ECTION 40A(3) OF THE ACT AND IN NOT ALLOWING EXEMPTION AVAILABLE FOR THE ASSESSEE ITA NO. 1933/ DEL/2011 9 UNDER RULE 6 DD (G), (J) & (K) OF THE INCOME TAX RU LES, 1962. THE LD. AR VEHEMENTLY CONTENDED THAT THE ASSESSING OFFI CER AS WELL AS THE CIT(A) OMITTED TO ANALYSE THE INDIVIDUAL TRANSA CTIONS AND THE PLAUSIBLE AND ACCEPTABLE EXPLANATION OF THE ASSESSE E THAT SINCE CHEQUES ISSUED THE KESHAV MOTORS HAS BOUNCED, THE S AID SUPPLIER M/S KESHAV MOTORS ON CERTAIN OCCASIONS REFUSED TO PROVIDE DIESEL TO OUT GOING VEHICLES AND INSISTED FOR CASH PAYMENT I N LIEU OF THE BOUNCED CHEQUES AND THEREFORE, THE ASSESSEE MADE IM PUGNED CASH PAYMENTS. THE LD. AR, FURTHER, CONTENDED THAT THE C ASE OF THE ASSESSEE IS COVERED UNDER RULE 6DD (G), (J) & (K) O F THE IT RULES 1962 WHICH STIPULATES THE CERTAIN CIRCUMSTANCES IN WHICH A PAYMENT OR AGGREGATE OF PAYMENTS EXCEEDING RS. 20,000/- WAS MADE BY THE ASSESSEE, OTHERWISE THEN BY AN ACCOUNT PAYEE CHEQUE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT HAS BEEN MADE THEN NO DISALLOWANCE CAN BE MADE U/S 6 DD OF THE RULES AS T HE CIRCUMSTANCES SPECIFIED IN SUB RULE (G), (J) AND (K ) ARE SQUARELY APPLICABLE TO THE CASE OF ASSESSEE AND THEREFORE, ADDITION MADE BY THE AUTHORITIES BELOW IS NOT SUSTAINABLE. ITA NO. 1933/ DEL/2011 10 9. THE LD. AR, FURTHER, REITERATING ITS SUBM ISSIONS BEFORE CIT(A) ( AVAILABLE ON PAGE NO. 1 TO 6 OF THE PAPER BOOK) S UBMITTED THAT THE PAYMENTS WERE MADE GENERALLY AFTER 9.00 P.M AS IT I S NOTIFIED THAT THE PLYING OF HEAVY VEHICLES ON MOST OF THE ROADS IN D ELHI IS NOT PERMITTED BETWEEN 7.30 A.M. TO 9.30 P.M. AND AS PER PREVAILING RATES OF THE DIESEL DURING FINANCIAL YEAR 2005-06 THE AVE RAGE PURCHASE OF DIESEL FOR VEHICLE WAS NOT MORE THAN RS. 20,000/- A ND THE PAYMENT WAS ALWAYS MADE FOR MORE THAN ONE VEHICLE. THE LD. AR SUBMITTED THAT THE ASSESSEE USED TO PAY CASH TO THE DRIVERS O F VEHICLES TO MAKE PAYMENTS TO SUPPLIER I.E. KESHAV MOTORS, THEREFORE, PAYMENT MADE TO THE AGENT IS WITHIN THE AMBIT OF SUB RULE (K) OF RU LE 8DD OF THE IT RULES, 1962 AND THEREFORE, THE ASSESSEE WAS ALSO EN TITLED FOR THE EXEMPTION AVAILABLE UNDER SUB RULE (G) & (J) OF S AID RULE. 10. REPLYING TO THE ABOVE, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) PLACING RELIANCE ON THE DECISION OF ITAT, PUNE BENCH A IN THE CASE OF DCIT VS. VIJAY KUMAR RAMESH CHAND & CO. (2 007) 108 ITD 626 (PUNE TRIB.) SUBMITTED THAT SUB RULE (J) OF RULE 6 DD OF THE IT RULES, PROVIDING THE EXCEPTION TO SECTION 40A(3) O F THE ACT, HAS A ITA NO. 1933/ DEL/2011 11 LIMITED SCOPE AND PRESCRIBED EXCEPTION ONLY IN RESP ECT OF AGENT AND DOES NOT COVERED AN EMPLOYEE FOR SUCH AN EXCEPTION AND THEREFORE, PAYMENT BY THE ASSESSEE COMPANY THROUGH ITS DRIVERS OF THE VEHICLES TO THE SUPPLIER I.E. KESHAV MOTORS DOES NOT FALL UN DER SAID EXCEPTION. 11. THE LD. DR, FURTHER, PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ATTAR SINGH GURMUKH SI NGH VS. ITO (1991) 191 ITR 667 (SC) SUBMITTED THAT THE CASH PAYMENTS MADE BY THE ASSESSEE EXCEEDING PRIOR PRESCRIBED LIMIT IN CO NTRAVENTION OF TERMS OF SECTION 40A(3) OF THE ACT READ WITH RULE 6 DD OF THE RULES IS NOT PERMISSIBLE UNTIL AND UNLESS ASSESSEE IS ABLE T O SUBSTANTIATE THAT THE PAYMENTS SO MADE FALLS UNDER EXCEPTIONS AS STI PULATED IN RULE 6 DD OF IT RULES, 1962. THE LD. DR, FURTHER, CONTENDE D THAT THE PAYMENTS MADE BY THE ASSESSEE COMPANY IN CASH EXCE EDING THE PRESCRIBED LIMIT THROUGH ITS DRIVERS OF VEHICLES TO THE SUPPLIER I.E. KESHAV MOTORS DOES NOT FALL ANY EXCEPTIONS AS MENTI ONED IN RULE 6 DD OF THE RULES AND THEREFORE, ACTION OF THE AUTHOR ITIES BELOW MAKING ADDITION OF 20% OF SAID PAYMENT IS QUITE JUSTIFIED AND DESERVE TO BE UPHELD. THE LD. DR ALSO CONTENDED THAT THE BENEFIT OF THE RATIO OF THE ITA NO. 1933/ DEL/2011 12 DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF ANUPAM TELE SERVICES VS. ITO, (2014) 366 ITR, 122 (GUJARAT), AS RELIED BY THE ASSESSEE, IS NOT AVAILABLE FOR THE ASSESSEE AS IN T HAT CASH PAYMENT WAS MADE BY THE AGENT OF THE ASSESSEE IN THE BANK A CCOUNT OF THE PRINCIPAL WAS ALLOWED WHICH NOT THE FACT OF THE PRESENT CA SE. 12. ON CAREFUL CONSIDERATION ON ABOVE SUBMISS IONS, WE NOTE THAT THE CIT(A) UPHELD THE ORDER OF THE AO WITH FOLLOWIN G OBSERVATIONS AND CONCLUSIONS :- 4.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. AR AND PERUSED THE ASSESSMENT ORDER PASSED BY T HE AO. IT IS AN ADMITTED FACT THAT THE APPELLANT HAS M ADE PAYMENT OF RS. 4,68,655/- IN CASH IN VIOLATION OF P ROVISION OF SECTION 40A(3). RULE 6DD OF THE I.T. RULES, 196 2, PROVIDES CERTAIN CIRCUMSTANCES UNDER WHICH THE PAYM ENT CAN BE MADE IN CASH. THE WORDS USED IN RULE 6DD ARE IN THE CASES AND CIRCUMSTANCES SPECIFIED HEREUNDER. T HUS, THE CASES AND CIRCUMSTANCES SPECIFIED IN THE RULE A RE EXHAUSTIVE. NO CASE OR CIRCUMSTANCE CAN BE IMPLIED OR INTERPRETED, WHICH IS NOT SPECIFICALLY PROVIDED IN RULE 6DD. ADMITTEDLY, THE APPELLANTS CASE DOES NOT FALL IN A NY OF THE CLAUSES SPECIFIED IN RULE 6DD. THE APPELLANT AND M/ S. KESHAV MOTORS BOTH ARE LOCATED IN DELHI, BOTH ARE H AVING BANK ACCOUNTS IN DELHI, THERE WAS REGULAR CHEQUE TRANSACTION BETWEEN THE TWO THROUGHOUT THE YEAR. THEREFORE, IT CANNOT BE SAID THAT THERE WERE ANY CIRCUMSTANCES WHICH ARE COVERED BY RULE 6DD. THE WORDS USED IN RULE 6DD ARE VERY CLEAR AND UNAMBIGUO US. IF THE LEGISLATURE INTENDED TO PROVIDE FOR ANY OTHE R ITA NO. 1933/ DEL/2011 13 CIRCUMSTANCES THAN THOSE MENTIONED IN RULE 6DD, THE Y WOULD HAVE PROVIDED FOR THE SAME. BUT THE LEGISLATU RE IN THEIR WISDOM HAVE NOT PROVIDED FOR ANY OTHER CIRCUMSTANCES. 4.1.1. IN THE CASE OF NARAYAN BIJOY KUMAR VS. CIT (PAT) 163 ITR, 695, IT WAS HELD THAT EVEN WHERE THE ASSES SEE SHOWED A CERTIFICATE FROM THE OTHER PARTY INSISTING FOR CASH PAYMENT, THE SAME WAS NOT SUFFICIENT TO JUSTIFY CAS H PAYMENT. SIMILARLY, IN THE CASE OF JAI TALKIES STEE L TRADERS VS. CIT (P & H) 250 ITR 738, IT WAS HELD T HAT THE ASSESSEE MUST PRODUCE CONFIRMATORY LETTER FROM OTHE R PARTY AS PROOF FOR INSISTING CASH PAYMENT. THE JURISDICTIONAL ITAT IN THE CASE OF JAI TALKIES VS. INCOME TAX OFFICER (ITAT, DELHI) 57 TTJ 745 HAS HELD THAT MAKING PAYMENT ON BANK HOLIDAY DO NOT IPSO FACTO PERMIT ASSESSEE TO MAKE CASH PAYMENTS. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE , LEGAL PROVISIONS AND JUDICIAL PRONOUNCEMENTS ON THE ISSUE , I HOLD THAT THE AO WAS FULLY JUSTIFIED IN MAKING THE DISALLOWANCE U/S 40A(3) OF THE ACT, 1961. THEREFORE , THE ADDITION MADE BY THE AO IS CONFIRMED. THE GROUNDS O F APPEAL ARE REJECTED. 13. UNDER FACTS AND CIRCUMSTANCES OF RIVAL SU BMISSIONS OF BOTH THE SIDES, WE NOTE THAT THE ASSESSEE HAS RAISED TW O CONTENTIONS TO THE ACTION OF THE AUTHORITIES BELOW FIRST, THE PAYM ENT WAS MADE IN CASH EXCEEDING THE PRESCRIBED LIMIT BECAUSE THE CHE QUES ISSUED TO M/S KESHAV MOTORS BY THE ASSESSEE HAD BOUNCED AND T HE SAID SUPPLIER ON CERTAIN OCCASIONS REFUSED TO PROVIDE DI ESEL TO OUT GONE VEHICLES AND INSISTED FOR CASH PAYMENT IN LIEU OF T HE BOUNCED ITA NO. 1933/ DEL/2011 14 CHEQUES AND UNDER THESE EXCEPTIONAL CIRCUMSTANCES D RIVER/PERSON AS ACCOMPANYING THE VEHICLE ON SOME OCCASIONS HAD TO M AKE PAYMENT IN CASH. THE 2 ND CONTENTION OF THE ASSESSEE COMPANY IS THAT THE PAYMENT SO MADE BY THE ASSESSEE EXCEEDING PRESCRIBE D LIMIT PRESCRIBED BY THE ACT FALLS UNDER EXCEPTION (G), ( J) & (K) OF RULE 6 DD OF THE RULES. 14. AT THE JUNCTURE, FIRST OF ALL, WE RESPEC TFULLY CONSIDER THE RATIO OF THE DECISION OF HONBLE HIGH COURT OF GUJARAT IN T HE CASE OF ANUPAM TELE SERVICES VS. ITO (SUPRA) WHEREIN IT WAS HELD T HAT WHERE THE PRINCIPAL COMPANY INSISTED THAT ON THE PAYMENT MADE BY CHEQUE SUPPLY WOULD BE DELETED, THEN THE CASH PAYMENT MADE BY THE AGENT DIRECTLY IN THE BANK ACCOUNT ON THE PRINCIPAL HAD T O BE ALLOWED. BUT WE RESPECTFULLY NOTE THAT THE BENEFIT OF THE RATIO OF THIS DECISION IS NOT AVAILABLE FOR THE ASSESSEE AS THE FACTS AND CIRCUMS TANCES OF THE PRESENT CASE ARE CLEARLY DISTINGUISHABLE AS IN THE PRESENT CASE THE ASSESSEE COMPANY IS RELATED TO THE IMPUGNED PAYMENT S MADE TO THE SUPPLIER OF DIESEL ETC. THROUGH ITS DRIVER / PERSON ACCOMPANYING ON THE ITA NO. 1933/ DEL/2011 15 VEHICLE. THEREFORE, DECISION OF HONBLE GUJARAT HIG H COURT DOES NOT SUPPORT THE CONTENTION OF THE ASSESSEE. 15. COMING TO THE ISSUE OF PAYMENT AGAINST BOUNCED CHEQUES IS CONCERNED, WE NOTE THAT THE COPY OF THE BANK STA TEMENT AVAILABLE ON PAGE NO. 12 TO 19 OF THE PAPER BOOK OF THE ASSES SEE. WE NOTE THAT AS MANY AS FIVE CHEQUES HAS BEEN RETURNED / BOUNCED AND THE ASSESSEE HAS MADE PAYMENT OF RS. 4,68,655/- IN CASH IN VIOLATION OF PROVISIONS OF THE ACT ON NUMBER OF OCCASIONS AND TH E PAYMENT MADE IN CASH DOES NOT MATCH WITH THE AMOUNT OF CHEQUES B OUNCED. BE THAT AS IT MAY, WE ALSO NOTE THAT THE PAYMENT MADE BY THE ASSESSEE DOES NOT FALL ANY CIRCUMSTANCES PRESCRIBED IN RULE 6 DD OF THE IT RULES, 1962. WE MAY NOTE THAT THE WORDS USED RULE 6 DD ARE SPECIFIED THE CASES ON CIRCUMSTANCES AND NO CASE OR CIRCUMSTANCE CAN BE EMPLOYED OR INTERPRETED WHICH IS NOT SPECIFI CALLY PROVIDED IN RULE 6DD. ON THE BASIS OF FOREGOING DISCUSSION, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEES CASE DOES NOT F ALL IN ANY OF THE CLAUSES SPECIFIED IN RULE 8 RULE 6DD OF THE ACT RUL E WHICH OF PROVIDES THAT AN ASSESSEE CAN BE EXEMPTED FROM THE REQUIREMENT OF PAYMENT BY CROSS-CHEQUE OR A CROSS BANK DRAFT BEYON D PRESCRIBED ITA NO. 1933/ DEL/2011 16 LIMIT WHERE THE CIRCUMSTANCES IN WHICH SUCH PAYMENT HAS BEEN MADE FALLS UNDER EXCEPTIONS AS MENTIONED IN RULE 6 DD OF THE ACT. 16. ON THE BASIS OF FOREGOING DISCUSSION, WE RE ACH THE CONCLUSION THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, LEGAL PROVISIONS AND JURISDICTIONAL PRONOUNCE OF THE ISSU E THE AO AS WELL AS THE CIT(A) WERE FULLY JUSTIFIED IN MAKING DISALLOW ANCE U/S 40A(3) OF THE ACT AND WE ARE UNABLE TO SEE ANY PERVERSITY OR ANY OTHER VALID REASON TO INTERFERE WITH THE SAME. ACCORDINGLY ADDI TIONAL GROUND NO. 2 AND GROUND NO. 1 TO 5 OF THE ASSESSEE BEING DEVOID OF MERITS ARE DISMISSED. 20. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 24 TH FEBRUARY, 2015. SD/- SD/- (R.S.SYAL) (C.M.GARG) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED 24 TH FEB. 2015 B.RUKHAIYAR COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT (ITAT), NEW DELHI. AR,ITAT NEW DELHI. ITA NO. 1933/ DEL/2011 17