ITO, Ward - 1(2), Jalpaiguri V. M/s. Ethelbari C.S. Shop, Jalpaiguri

ITA 2035/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5172 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 26-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Commercial expediency
• Section: 40A(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) ITA NO. 2035/KOL/2018 ASSESSMENT YEAR: 2015-16 INCOME TAX OFFICER, WARD-1(2), JALPAIGURI..........................................................APPELLANT VS. M/S. ETHELBARI C.S. SHOP..........................................RESPONDENT C/O. SUNIL KUMAR GHOSH P.O. ETHELBARI JALPAIGURI PIN- 735 204 [PAN : AACFE 0037 F] APPEARANCES BY: SHRI SUPRIYO PAL, JCIT SR. D/R, APPEARING ON BEHALF OF THE REVENUE. NONE, APPEARED ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : JANUARY 23 RD , 2020 DATE OF PRONOUNCING THE ORDER : FEBRUARY 19 TH , 2020 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) JALPAIGURI, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 04/07/2018, FOR THE ASSESSMENT YEAR 2015-16. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. THERE IS NO PETITION FOR ADJOURNMENT EITHER. UNDER THESE CIRCUMSTANCES, WE DISPOSE OFF THE CASE EX-PARTE ON MERITS QUA THE ASSESSEE AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 3. HEARD THE LD. D/R. THE SOLE ISSUE THAT ARISES FOR OUR ADJUDICATION IN THIS APPEAL IS THE DISALLOWANCE U/S 40A(3) OF THE ACT. THE LD. CIT(A) AT PARA 4.5.3. & 4.5.4., HELD AS FOLLOWS:- 4.5.3. I HAVE PERUSED THE FINDING OF THE AO AND SUBMISSION MADE BY THE APPELLANT ON THIS GROUND. I HAVE ALSO PERUSED THE ORDER OF MY PREDECESSOR FOR A.Y. 2014-15 DATED 27.04.2017 PASSED IN THE CASE OF THE SAME ASSESSEE. IN THAT CASE, WHILE ALLOWING THE GROUND OF APPEAL, LD. CIT(A) HAS HELD AS UNDER:- 'PARA 3. FINDINGS OF CIT(A) I HAVE PERUSED THE ASSESSMENT ORDER, SUBMISSION OF THE LD. AIR AND THE CASE LAWS RELIED BY LD. A/R. IT IS SEEN THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY HON. ITAT'S DECISION IN THE CASE OF ASHOK KUMAR MONDAL, BURDMAN VS. INCOME TAX OFFICER, WARD-2(2), ASANSOL DATED 16.09.2016 VIDE ITA NO. 163/KOL/2014. THE CONCLUSION IN THE DECISION IS REPRODUCED BELOW :- IN VIEW OF THE ABOVE, WE FIND THAT THE ASSESSEE HAS A COMMERCIAL EXPEDIENCY UNDER RULE 6(2) OF THE WEST BENGAL RULES REFERRED TO ABOVE TO MAK TO THE CREDIT OF M/S. ASANSOL BOTTLING AND PACKAGING PVT. LTD., BURDMAN AND M/S. ASANSOL BOTTLING AND PACKAGING PVT. LIMITED, BURDMAN WHO IS DEEMED TO BE AN AGENT OF THE STATE GOVERNMENT, AS SUCH IN TERMS OF RULE 6DD(B) AND RULE 6DD(K) OF THE IN COME TAX RULES, THEY ARE EXEMPTED AND THE DISALLOWANCE MADE UNDER SECTION 40A(3) OF THE ACT CANNOT BE SUSTAINED. WE, THEREFORE ANSWER THIS ISSUE IN FAVOUR OF THE ASSESSEE AND THAT THE ORDER OF THE AUTHORITIES BELOW CANNOT BE SUSTAINED. IN VIEW OF THE ABO 40A(3) DOES NOT SURVIVE. IN THE RESULT, THIS GROUND IS ALLOWED. ' 4.5.4. IN VIEW OF THE DECISION OF MY LD. PREDECESSOR ON THE SAME ISSUE IN CASE OF ASSESSEE FOR A.Y. 2015- 16 AND THE DECISION OF HON BURDMAN VS. INCOME TAX OFFICER, WARD 163/KOL/2014, THE ADDITION MADE BY THE A.O. CANNOT BE SUSTAINED AND THE GROUND OF APPEAL IS ALLOWED. 4. CONSISTENT WITH THE VIEW TAKEN BY THE CO SIMILAR CASES, WE UPHOLD THE ORDER OF THE LD. CIT(A) AND DISMISS THIS APPEAL OF THE REVENUE. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE SD/- [S.S. GODARA] JUDICIAL MEMBER DATED : 19.02.2020 {SC SPS} 2 IN VIEW OF THE ABOVE, WE FIND THAT THE ASSESSEE HAS A COMMERCIAL EXPEDIENCY UNDER RULE 6(2) OF THE WEST BENGAL RULES REFERRED TO ABOVE TO MAK E PAYMENTS TO THE CREDIT OF M/S. ASANSOL BOTTLING AND PACKAGING PVT. LTD., BURDMAN AND M/S. ASANSOL BOTTLING AND PACKAGING PVT. LIMITED, BURDMAN WHO IS DEEMED TO BE AN AGENT OF THE STATE GOVERNMENT, AS SUCH IN TERMS OF RULE 6DD(B) AND RULE COME TAX RULES, THEY ARE EXEMPTED AND THE DISALLOWANCE MADE UNDER SECTION 40A(3) OF THE ACT CANNOT BE SUSTAINED. WE, THEREFORE ANSWER THIS ISSUE IN FAVOUR OF THE ASSESSEE AND THAT THE ORDER OF THE AUTHORITIES BELOW CANNOT BE SUSTAINED. IN VIEW OF THE ABO VE BINDING JUDGMENT OF HON. ITAT, THE ADDITION MADE U/S 40A(3) DOES NOT SURVIVE. IN THE RESULT, THIS GROUND IS ALLOWED. ' IN VIEW OF THE DECISION OF MY LD. PREDECESSOR ON THE SAME ISSUE IN CASE OF ASSESSEE 16 AND THE DECISION OF HON BLE ITAT IN THE CASE OF ASHOK KR. MONDAL, BURDMAN VS. INCOME TAX OFFICER, WARD - 2(2), ASANSOL DATED 16.09.2016 VIDE ITA NO. 163/KOL/2014, THE ADDITION MADE BY THE A.O. CANNOT BE SUSTAINED AND THE GROUND OF APPEAL CONSISTENT WITH THE VIEW TAKEN BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN SIMILAR CASES, WE UPHOLD THE ORDER OF THE LD. CIT(A) AND DISMISS THIS APPEAL OF THE IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE 19 TH DAY OF FEBRUARY, 202 0 [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER ITA NO. 2035/KOL/2018 ASSESSMENT YEAR: 2015-16 M/S. ETHELBARI C.S. SHOP IN VIEW OF THE ABOVE, WE FIND THAT THE ASSESSEE HAS A COMMERCIAL EXPEDIENCY E PAYMENTS TO THE CREDIT OF M/S. ASANSOL BOTTLING AND PACKAGING PVT. LTD., BURDMAN AND M/S. ASANSOL BOTTLING AND PACKAGING PVT. LIMITED, BURDMAN WHO IS DEEMED TO BE AN AGENT OF THE STATE GOVERNMENT, AS SUCH IN TERMS OF RULE 6DD(B) AND RULE COME TAX RULES, THEY ARE EXEMPTED AND THE DISALLOWANCE MADE UNDER SECTION 40A(3) OF THE ACT CANNOT BE SUSTAINED. WE, THEREFORE ANSWER THIS ISSUE IN FAVOUR OF THE ASSESSEE AND THAT THE ORDER OF THE AUTHORITIES BELOW VE BINDING JUDGMENT OF HON. ITAT, THE ADDITION MADE U/S IN VIEW OF THE DECISION OF MY LD. PREDECESSOR ON THE SAME ISSUE IN CASE OF ASSESSEE BLE ITAT IN THE CASE OF ASHOK KR. MONDAL, 2(2), ASANSOL DATED 16.09.2016 VIDE ITA NO. 163/KOL/2014, THE ADDITION MADE BY THE A.O. CANNOT BE SUSTAINED AND THE GROUND OF APPEAL ORDINATE BENCH OF THE TRIBUNAL IN SIMILAR CASES, WE UPHOLD THE ORDER OF THE LD. CIT(A) AND DISMISS THIS APPEAL OF THE 0 . SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. M/S. ETHELBARI C.S. SHOP C/O. SUNIL KUMAR GHOSH P.O. ETHELBARI JALPAIGURI PIN- 735 204 2. INCOME TAX OFFICER, WARD- 1(2), JALPAIGURI 3.CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 3 1(2), JALPAIGURI 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 2035/KOL/2018 ASSESSMENT YEAR: 2015-16 M/S. ETHELBARI C.S. SHOP TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES