ITO, Wd-1(4), Durgapur, Durgapur V. Sri Sudhir Kumar Mondal, Burdwan

ITA 501/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1040 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOUMYAJIT DASGUPTA
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & SHRI S.S. VISWANETHRA RAVI, JM] I.T.A NO. 501/KOL/201 5 ASSESSMENT YEAR : 2010-1 1 ITO, WARD-1(4), DURGAPUR -VS- SHRI SUDHIR K UMAR MONDAL, L/H SMT. LAXMI RANI MONDAL [PAN: AKDPM 5623 Q] (APPELLANT) (RESPONDENT) C.O. NO. 24/KOL/2015 (ARISING OUT OF I.T.A NO. 501/KOL/2015) ASSESSMENT YEAR : 2010-1 1 SHRI SUDHIR KUMAR MONDAL , L/H SMT. LAXMI -VS- ITO, WARD-1(4), DURGAPUR RANI MONDAL [PAN: AKDPM 5623 Q] (APPELLANT) (RESPONDE NT) FOR THE APPELLANT : SHRI SOUMYAJIT DAS GUPTA, ADDL. CIT FOR THE RESPONDENT : NONE. DATE OF HEARING : 15.11.2017 DATE OF PRONOUNCEMENT : 22.11.2017 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE ARISE OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-DURGAPUR [IN SHORT THE LD CIT(A)] IN APPEAL NO.12/CIT(A)/DGP/201 3-14 DATED 17.02.2015 2 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 2 AGAINST THE ORDER PASSED BY THE ITO, WARD-1(4), DUR GAPUR [ IN SHORT THE LD AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (I N SHORT THE ACT) DATED 05.03.2013 FOR THE ASSESSMENT YEAR 2010-11. 2. THE ONLY ISSUE TO BE DECIDED IN THE APPEAL OF T HE REVENUE IS AS TO WHETHER THE LD CITA WAS JUSTIFIED IN DELETING THE DISALLOWANCE MADE U/S 40A(3) OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF RETAIL VENDING OF COUNTRY LIQUOR. THE COUNTRY LIQUOR IS AN EXCISABLE COMMODITY. ITS PURCHASE AND SALE ARE STRICTLY CONT ROLLED BY THE STATE GOVERNMENT. PREVIOUSLY, THE RETAIL DEALERS LIKE THE ASSESSEE US ED TO DEPOSIT THE COST PRICE, EXCISE DUTY, BOTTLING CHARGES ETC IN THE TREASURY A GAINST FORM TR-7 IN CASH FOR GETTING SUPPLIES FROM THE WHOLESALE LICENSEE. SUBS EQUENTLY, THE EXCISE DEPARTMENT BY A NOTIFICATION DATED 29.8.2005 CHANGE D THE PROCEDURE. AS PER THE REVISED PROCEDURE PRESCRIBED BY THE EXCISE DEPARTME NT, FOR LIFTING COUNTRY SPIRIT, THE ASSESSEE , WHO IS A RETAIL VENDOR, WAS REQUIRE D TO MAKE THE ENTIRE PAYMENT CONSISTING OF COST OF THE STOCK IN TRADE, EXCISE DU TY AND BOTTLING CHARGES ETC ONLY TO THE WHOLESALE LICENSEE APPOINTED BY THE STATE GO VERNMENT. FOLLOWING THE REVISED PROCEDURE, THE ASSESSEE MADE PAYMENTS TO M/ S IFB AGRO INDUSTRIES LTD TOWARDS PURCHASES OF COUNTRY LIQUOR. AGAINST THE AFORESAID PURCHASES, THE ASSESSEE MADE PAYMENTS IN CASH BY DEPOSITING MONEY DIRECTLY TO THE BANK ACCOUNT OF THE AFORESAID COMPANY. THE LD AO OBSERVED THAT THE PAYMENT FOR PURCHASE WAS EXCEEDING RS 20,000/- RESULTING IN VIOLATION OF PROVISIONS OF SECTION 40A(3) OF THE ACT AND ACCORDINGLY PROCEEDED TO DISALLOW A SUM OF RS 38,69,634/- IN THE 3 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 3 ASSESSMENT. THIS DISALLOWANCE WAS DELETED BY THE LD CITA IN FIRST APPEAL. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON TH E FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) WAS NOT RIGHT IN ALLOWING RELIEF AGAINST ADDITION MADE ON ACCOUNT OF VIOLATION OF SECTION 40A(3) DRAWING REFERENCE OF RULE 6DD(B) WITHOUT CONSIDERIN G THE FACT THAT CASH PAYMENT MADE BY ASSESSEE TO IFB AGRO INDUSTRIES LIM ITED, IN ANY WAY CANNOT BE TREATED AS PAYMENT MADE TO GOVERNMENT. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) FAILED TO APPRECIATE THAT NEITHER THE IMPUGNED CASH PAYMENT WAS RELATED TO ANY LEGAL TENDER NOR ANY BINDING WAS EVER FRAMED BY RULES WHICH COMPELLED TH E ASSESSEE TO MAKE CASH PURCHASE ONLY. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, A MEND, MODIFY, SUBSTITUTE, DELETE AND/OR RESCIND ALL OR ANY GROUNDS OF APPEAL ON OR B EFORE FINAL HEARING. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE. SINCE THIS IS A COVERED ISSUE, WE PROCEED TO DISPOSE OFF THIS APPEAL ON HEARING THE L D DR. THE LD DR VEHEMENTLY RELIED ON THE ORDER OF THE LD AO. WE HAVE HEARD T HE LD DR. WE FIND THAT THE ISSUE UNDER DISPUTE IS COVERED BY THE ORDER OF THIS TRIBUNAL IN THE CASE OF RAMNAGAR PACHAI & C.S. SHOP VS ITO IN ITA NO. 938/K OL/2016 FOR ASST YEAR 2011-12 DATED 18.11.2016 WHEREIN IT WAS HELD AS UND ER:- 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE HAVE ALSO GONE THROUGH THE PROVISION S OF THE WEST BENGAL EXCISE RULES 2005 AND THE BENGAL EXCISE ACT, 1909. THE FA CTS STATED HEREINABOVE REMAIN UNDISPUTED AND HENCE THE SAME ARE NOT REITER ATED FOR THE SAKE OF BREVITY. AT THE OUTSET, WE DEEM IT NECESSARY TO INCORPORATE THE FOLLOWING CLAUSES FROM THE NOTIFICATION ISSUED BY THE EXCISE DEPARTMENT, GOVER NMENT OF WEST BENGAL , DATED 29.8.2005 FOR THE SAKE OF BETTER UNDERSTANDIN G OF THE FACTS :- IN EXERCISE OF THE POWER CONFERRED BY SECTION 85 A ND SECTION 86 OF THE BENGAL EXCISE ACT, 1909 (BEN. ACT V OF 1909) AN D IN SUPERSESSION OF THE RULES PUBLISHED WITH THIS DEPAR TMENT NOTIFICATION NO. 122-EX/O/1R-1/2000 DATED 23.2.2000, AS SUBSEQUE NTLY AMENDED, THE GOVERNOR IS PLEASED HEREBY TO MAKE THE FOLLOWING 4 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 4 RULES REGULATING THE ISSUE AND REMOVAL OF COUNTRY S PIRIT ON PAYMENT OF DUTY IN LABELLED AND CAPSULED BOTTLES FROM COUNT RY SPIRIT BOTTLING PLANTS AND IN BULK FROM WAREHOUSES BY THE LICENSED WHOLESALE VENDORS OF THE SAME FOR THE PURPOSE OF SELLING COUN TRY SPIRIT BY WHOLESALE: RULES 1. SHORT TITLE AND COMMENCEMENT.(1) THESE RULES MAY B E CALLED THE WEST BENGAL EXCISE (SUPPLY OF COUNTRY SPIRIT ON PAYMENT OF DUTY) RULES, 2005. (2) THESE RULES SHALL COME INTO FORCE FROM 19TH OCTOBER, 2005. 2. DEFINITIONS.(1) IN THESE RU LES, UNLESS THERE IS ANYTHING REPUGNANT IN THE SUBJECT OR CONTE XT (I) COMMISSIONER MEANS THE EXCISE COMMISSIONER; (II) REQUISITION MEANS THE REQUISITION SUBMITTED BY TH E AUTHORIZED REPRESENTATIVE OF LICENSED WHOLESALE VEN DOR OF COUNTRY SPIRIT IN FORM II APPENDED TO THESE RULES; (III) RETAIL VENDOR MEANS THE PERSON HOLDING LICENSE IN THE PRESCRIBED FORM FOR RETAIL VENDING OF COUNTRY SPIRI T, GRANTED BY THE COLLECTOR; 189; (IV) STATE GOVERNMENT MEANS THE GOVERNMENT OF WEST BEN GAL; (V) THE ACT MEANS THE BENGAL EXCISE ACT, 1909 (BEN. A CT V OF 1909); (VI) TRANSPORT PASS MEANS THE TRANSPORT PASS ISSUED IN FORM III APPENDED TO THESE RULES; (VII) WAREHOUSE MEANS THE WAREHOUSE FOR SUPPLY OF COUNT RY SPIRIT TO RETAIL VENDORS, ESTABLISHED AT CONVENIENT PLACES BY THE COMMISSIONER AT THE EXPENSE OF THE STATE GOVERN MENT, OR AT THE EXPENSE OF A PERSON TO WHOM THE EXCLUSIVE PR IVILEGE OF SUPPLYING OR SELLING COUNTRY SPIRIT BY WHOLESALE HA S BEEN GRANTED UNDER SECTION 22 OF THE ACT, OR OF A LICENS ED WHOLESALE VENDOR OF COUNTRY SPIRIT; (VIII) WHOLESALE LICENSEE MEANS THE WHOLESALE VENDOR OF COUNTRY SPIRIT TO WHOM LICENSE HAS BEEN GRANTED IN WEST BEN GAL EXCISE FORM NO. 26. 2. WORDS AND EXPRESSIONS USED IN THESE RULES AND NO T DEFINED, BUT DEFINED IN THE ACT, SHALL HAVE THE MEANINGS RESPECT IVELY ASSIGNED TO THEM IN THE ACT. 5 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 5 3. ISSUE ONLY ON PAYMENT OF DUTY.NO COUNTRY SPIRIT IN LABELLED AND CAPSULED BOTTLES SHALL BE ISSUED WITHOUT PAYMENT OF DUTY FROM A COUNTRY SPIRIT BOTTLING PLANT. NO COUNTRY SPIRIT IN BULK SHALL BE ISSUED WITHOUT PAYMENT OF DUTY FROM A COUNTRY SPIRIT WAREH OUSE. 4. PERSONAL LEDGER ACCOUNT TO BE MAINTAINED BY THE WHOLESALE LICENSEE.THE WHOLESALE LICENSEE SHALL MAINTAIN A P ERSONAL LEDGER ACCOUNT IN ACCORDANCE WITH THE DIRECTION ISSUED BY THE COMMISSIONER FROM TIME TO TIME FOR THE PURPOSE OF M AINTAINING AN ACCOUNTCURRENT OF THE DUTIES PAYABLE BY THE WHOLES ALE LICENSEE FOR THE ISSUES OF COUNTRY SPIRIT TO THE RETAIL VENDORS OR TRANSPORT ON PAYMENT OF DUTY FROM THE CONCERNED COUNTRY SPIRIT B OTTLING PLANT OR WAREHOUSE. 5. MINIMUM BALANCE IN PERSONAL LEDGER ACCOUNT.THE COLLECTOR SHALL ISSUE DIRECTIONS FOR MAINTAINING THE MINIMUM AMOUNT OF BALANCE IN THE AFORESAID PERSONAL LEDGER ACCOUNTS I N ORDER TO ENSURE THAT DUTY FOR DAILY ISSUES OF COUNTRY SPIRIT FROM THE COUNTRY SPIRIT BOTTLING PLANT OR WAREHOUSE MAY BE DEBITED F ROM THE SAID ACCOUNT, LEAVING SUFFICIENT BALANCE AS MAY BE DETER MINED BY HIM. 6. PROCEDURE OF ISSUE OF COUNTRY SPIRIT.(1) THE R ETAIL VENDOR OR HIS AUTHORIZED REPRESENTATIVE SHALL SUBMIT TO THE REPRE SENTATIVE OF THE WHOLESALE LICENSEE, THROUGH EXCISE OFFICER-IN-CHARG E OF THE WAREHOUSE, A DEMAND FOR ISSUE OF COUNTRY SPIRIT IN FORM I APPENDED TO THESE RULES IN DUPLICATE. THE DUPLICATE COPY SHA LL BE KEPT IN THE CUSTODY OF THE EXCISE OFFICER-IN-CHARGE FOR HIS OFF ICIAL RECORD. (2) NO RETAIL VENDOR OF COUNTRY SPIRIT SHALL DEPOSI T DUTY DIRECT INTO THE LOCAL TREASURY FOR ISSUE OF COUNTRY SPIRIT TO B E TAKEN BY HIM FROM THE WAREHOUSE CONCERNED. DUTY, COST PRICE, BOTTLING CHARGE, IF THERE BE ANY, AT THE PRESCRIBED RATE AND OTHER IMPOSITION , AS MAY BE PRESCRIBED BY LAW, SHALL BE PAID BY THE RETAIL VEND OR TO THE CREDIT OF THE WHOLESALE LICENSEE CONCERNED. (3) THE AUTHORIZED REPRESENTATIVE OF THE WHOLESALE LICENSEE SHALL REALIZE THE NECESSARY AMOUNT OF DUTY, COST PRICE AN D BOTTLING CHARGE, IF THERE BE ANY, AT THE PRESCRIBED RATE AND SUCH OT HER IMPOSITION, AS MAY BE PRESCRIBED BY LAW, FROM THE RETAIL VENDOR TO WHOM COUNTRY SPIRIT IS TO BE ISSUED FROM THE CONCERNED WAREHOUSE . THE AUTHORIZED REPRESENTATIVE AS ABOVE SHALL THEN SUBMIT REQUISITI ON IN DUPLICATE IN FORM II APPENDED TO THESE RULES TO THE EXCISE OFFIC ER-IN-CHARGE OF 6 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 6 THE WAREHOUSE SEPARATELY FOR EACH OF THE RETAIL VEN DORS TO WHOM COUNTRY SPIRIT IS TO BE ISSUED ON THE DAY. (4) ON RECEIPT OF THE REQUISITION IN FORM II, THE EXCISE OFFICER-IN- CHARGE OF THE WAREHOUSE SHALL ALLOW ISSUE OF COUNTR Y SPIRIT FROM THE WAREHOUSE. DUPLICATE COPY OF THE REQUISITION SHALL BE RETURNED TO THE AUTHORIZED REPRESENTATIVE OF THE WHOLESALE LICENSEE AFTER THE ISSUE HAS BEEN MADE. (5) THE EXCISE OFFICER-IN-CHARGE OF THE WAREHOUSE SHALL ISSUE TRANSPORT PASS TO THE RETAIL VENDOR IN FORM III APP ENDED TO THESE RULES. (6) NOTWITHSTANDING ANYTHING CONTAINED IN ANY PROVI SIONS OF THE RULES, ORDERS AND NOTIFICATIONS IN THIS CONTEXT, TH E WHOLESALE SUPPLIERS OF COUNTRY SPIRIT IN LABELLED AND CAPSULE D BOTTLES SHALL ALLOW A REBATE OF FIVE PAISE PER BOTTLE IRRESPECTIV E OF MEASURE FROM THE BOTTLING CHARGE TO THE RETAIL COUNTRY SPIRIT LI CENSEES WHOSE LICENSED PREMISES ARE LOCATED AT A DISTANCE OF 50 K ILOMETRES OR MORE BY THE SHORTEST ROUTE FROM THE ISSUING WAREHOUSE ON THE BASIS OF A CERTIFICATE TO BE ISSUED BY THE COLLECTOR IN RESPEC T OF DISTANCE. AT THE END OF THE MONTH, THE WHOLESALER SHALL SUBMI T A BILL IN DUPLICATE TO THE OFFICER-IN-CHARGE OF THE WAREHOUSE CLAIMING REFUND OF THE AMOUNT GRANTED AS REBATE. THE OFFICER-IN-CHARGE SHALL, ON RECEIPT OF THE BILL , REFUND THE AMOUNT CLAIMED AFTER VERIFYING HIS RECORDS THROUGH ADJUSTM ENT IN THE PERSONAL LEDGER ACCOUNT MAINTAINED FOR THE PURPOSE OF PRIVILEGE FEE. IN CASE THERE IS NO PERSONAL LEDGER ACCOUNT FO R PRIVILEGE FEE AT THE WAREHOUSE, THE OFFICER-IN-CHARGE SHALL SEND A C OPY OF THE CLAIM WITH HIS COMMENTS TO THE OFFICER-IN-CHARGE OF THE S UPPLIER BOTTLING PLANT, WHO SHALL REFUND THE AMOUNT RECOMMENDED TO T HE WHOLESALER THROUGH ADJUSTMENT IN THE PERSONAL LEDGER ACCOUNT M AINTAINED FOR PRIVILEGE FEE. 7. WE FIND THAT THE RELIANCE PLACED ON THE DECISI ON OF CO-ORDINATE BENCH OF BANGALORE TRIBUNAL IN THE CASE OF SRI RENUKESWARA R ICE MILLS VS ITO REPORTED IN 93 ITD 263 (BANG TRIB.) IS WELL FOUNDED , WHEREIN, IT WAS HELD THAT THE C ASH PAYMENT IN THE BANK ACCOUNT OF THE PAYEE IS SUFFIC IENT TO GET EXEMPTION IN TERMS OF RULE 6DD IN AS MUCH IT IS ENSURED THAT THE PAYEE AND PAYEE ALONE RECEIVES 7 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 7 THE PAYMENT AND THE ORIGIN AND CONCLUSION OF THE TR ANSACTION IS TRACEABLE THEREBY FULFILLING THE CRITERION FOR ENSURING THE OBJECT OF INTRODUCTION OF SECTION 40A(3) OF THE ACT. 8. WE FIND THAT THE PAYMENTS WERE MADE TO THE M/S ASANSOL BOTTLING & PACKAGING CO. PVT. LTD (WHOLESALE LICENSEE) BY DIRE CTLY DEPOSITING THE CASH IN THEIR BANK ACCOUNT. MOREOVER, THE REGULATIONS OF TH E WEST BENGAL GOVERNMENT PURSUANT TO NOTIFICATION FROM ITS EXCISE DEPARTMENT DATED 29.8.2005 ALSO MANDATES THE PAYMENT TO BE MADE BY WAY OF DIRECT DE POSIT INTO THE BANK ACCOUNT OF THE WHOLESALE LICENSEE. THIS FACT IS ALSO NOT D ISPUTED BY THE REVENUE. 9. WE FIND THAT THIS TRIBUNAL HAD IN THE CASE RELI ED UPON BY THE LD AR SUPRA HAD ELABORATELY DEALT WITH THE IMPUGNED ISSUE WITH SPECIFIC REFERENCE TO THE WEST BENGAL EXCISE RULES AND BENGAL EXCISE ACT, CASE LAW S ON THE IMPUGNED ISSUE AND ULTIMATELY HELD AS BELOW:- 21. WE FIND THAT M/S ASANSOL BOTTLING & PACKAGING CO. PVT LTD IS A BOTTLING PLANT CUM WAREHOUSE UNDER RULE 2(VII) OF T HE WEST BENGAL EXCISE RULES 2005 WITH PRIVILEGE GRANTED U/S 22 OF THE BENGAL EXCISE ACT, 1909. AT THIS JUNCTURE, IT WOULD BE RELEVANT TO GO INTO THE DEFINITION OF WAREHOUSE AS PROVIDED UNDER THE STATE EXCISE RULES 2005 AS BELOW:- WAREHOUSE , UNDER RULE 2(VII) OF THE W.B.EXCISE R ULES 2005 , MEANS THE WAREHOUSE FOR SUPPLY OF COUNTRY SPIRIT TO RETAI L VENDORS, ESTABLISHED AT CONVENIENT PLACES BY THE COMMISSIONER AT THE EXPENS E OF THE STATE GOVERNMENT, OR AT THE EXPENSE OF A PERSON TO WHOM T HE EXCLUSIVE PRIVILEGE OF SUPPLYING OR SELLING COUNTRY SPIRIT BY WHOLESALE HAS BEEN GRANTED UNDER SECTION 22 OF THE ACT, OR OF A LICENSED WHOLESALE V ENDOR OF COUNTRY SPIRIT. THE ABOVE DEFINITION MAKES IT CLEAR THAT THE WAREH OUSE REFERRED TO UNDER THE STATE EXCISE RULES IS UNDER THE DIRECT CONTROL AND AUTHORITY OF THE COMMISSIONER OF STATE EXCISE BECAUSE IT IS ESTABLIS HED BY THE COMMISSIONER OF STATE EXCISE AND AS SUCH IS A STATE GOVERNMENT ESTABLISHMENT. IT IS ALSO PERTINENT TO NOTE THAT T HE EXPENDITURE IN RELATION TO SUCH WAREHOUSE IS BORNE BY THE STATE GOVERNMENT OR BY THE LICENSEE TO WHOM THE EXCLUSIVE PRIVILEGE IS GRANTED U/S 22 OF T HE BENGAL EXCISE ACT, 1909. HENCE THERE COULD BE NO DOUBT THAT THE WAREH OUSE IS ESTABLISHED BY THE STATE EXCISE COMMISSIONER. HENCE IT COULD BE S AFELY CONCLUDED THAT THE WAREHOUSE SO ESTABLISHED BY THE STATE EXCISE CO MMISSIONER IS A STATE GOVERNMENT ESTABLISHMENT. IT WOULD ALSO BE PERTIN ENT TO NOTE THAT THE SAID WAREHOUSE HAS BEEN SPECIFICALLY ESTABLISHED FO R SUPPLY OF COUNTRY SPIRIT TO RETAIL VENDORS (ASSESSEE HEREIN) ONLY AND NOT TO ANYBODY ELSE. 8 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 8 IT WOULD BE PERTINENT TO LOOK INTO THE DEFINITION O F WHOLESALE LICENSEE AS PER RULE 2(VIII) OF THE EXCISE RULES 2005 AS BEL OW:- RULE 2(VIII) WHOLESALE LICENSEE MEANS THE WHOLE SALE VENDOR OF COUNTRY SPIRIT TO WHOM LICENCE HAS BEEN GRANTED IN WEST BENGAL EXCISE FORM NO. 26. IT WOULD BE PERTINENT TO LOOK INTO SECTION 22 OF TH E BENGAL EXCISE ACT, 1909 AT THIS JUNCTURE AS BELOW:- SECTION 22 GRANT OF EXCLUSIVE PRIVILEGE OF MANUFA CTURE AND SALE OF COUNTRY LIQUOR OR INTOXICATING DRUGS (1) THE STATE GOVERNMENT MAY GRANT TO ANY PERSON, ON SU CH CONDITIONS AND FOR SUCH PERIOD AS IT MAY THINK FIT, THE EXCLUSIVE PRIVILEGE (A) OF MANUFACTURING, OR SUPPLYING BY WHOLESALE, OR (B) OF MANUFACTURING, AND SUPPLYING BY WHOLESALE, OR (C) OF SELLING, BY WHOLESALE OR RETAIL, OR (D) OF MANUFACTURING OR SUPPLYING BY WHOLESALE AND SELL ING RETAIL, OR (E) OF MANUFACTURING AND SUPPLYING BY WHOLESALE AND SEL LING RETAIL, ANY COUNTRY LIQUOR OR INTOXICATING DRUG WITHIN ANY SPECIFIED LOCAL AREA: PROVIDED THAT PUBLIC NOTICE SHALL BE GIVEN TO THE I NTENTION TO GRANT ANY SUCH EXCLUSIVE PRIVILEGE, AND THAT ANY OBJECTIONS MADE B Y ANY PERSON RESIDING WITHIN THE AREA AFFECTED SHALL BE CONSIDERED BEFORE AN EXCLUSIVE PRIVILEGE IS GRANTED. (2) NO GRANTEE OF ANY PRIVILEGE UNDER SUB-SECTION ( 1) SHALL EXERCISE THE SAME UNLESS OR UNTIL HE HAS RECEIVED A LICENSE IN THAT B EHALF FROM THE COLLECTOR OR THE EXCISE COMMISSIONER. HENCE IT COULD BE SAFELY CONCLUDED THAT M/S ASANSOL BOTTLING & PACKAGING CO. PVT LTD (BOTTLING PLANT) IS A WAREHOUSE WITHIN THE MEANING OF RULE 2(VII) OF THE EXCISE RULES 2005 AND SAID WAREHOUSE IS A ST ATE GOVERNMENT ESTABLISHMENT, ESTABLISHED AND CONTROLLED BY THE EX CISE COMMISSIONER . IT WOULD BE RELEVANT TO REPRODUCE RULE 6DD(B) OF THE I T RULES AT THIS JUNCTURE :- 9 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 9 (B) WHERE THE PAYMENT IS MADE TO THE GOVERNMENT AND , UNDER THE RULES FRAMED BY IT, SUCH PAYMENT IS REQUIRED TO BE MADE IN LEGAL TENDER. IN THE INSTANT CASE, THE ASSESSEE (RETAIL VENDOR) H AD MADE CASH PAYMENTS FOR PURCHASE OF COUNTRY SPIRIT BY DEPOSITING CASH D IRECTLY INTO THE BANK ACCOUNT OF M/S ABPL AS PER RULE 6(2) OF THE EXCISE RULES 2005 , IT HAS TO BE CONSTRUED AS PAYMENT MADE TO THE STATE GOVERNMEN T AUTHORITY AND ACCORDINGLY FALLS UNDER THE EXCEPTION PROVIDED IN R ULE 6DD(B) OF THE IT RULES. 22. IT IS NOT IN DISPUTE THAT M/S ASANSOL BOTTLIN G & PACKAGING CO. PVT LTD HAVE BEEN GRANTED LICENCE TO ACT AS A WHOLESALE R FOR SUPPLY OF COUNTRY LIQUOR TO THE RETAIL VENDOR AS PER THE REGULATIONS OF THE EXCISE DEPARTMENT , GOVERNMENT OF WEST BENGAL. AT THE COST OF REPETI TION, WE WOULD LIKE TO STATE THAT THE SAID REGULATION MANDATED THE PAYMENT S TO BE MADE DIRECTLY INTO THE BANK ACCOUNT OF THE SAID WHOLESALE LICENSE E BY THE RETAIL VENDOR (I.E ASSESSEE HEREIN) FOR STRICT AND EFFECTIVE REGU LATION OF THE COUNTRY LIQUOR AND FOR PREVENTION OF SPURIOUS STOCKS AND BL ACK MARKETING TRANSACTIONS FROM THE SAME. HENCE IT COULD BE SAFE LY CONCLUDED THAT THE SAID WHOLESALE LICENSEE HAD ACTED AT THE INSTANCE O F THE STATE GOVERNMENT. ONCE THIS IS SO, THEN THE SAID WHOLESALE LICENSEE COULD BE CONSTRUED AS AN AGENT OF THE STATE GOVERNMENT. FOR THE SAKE OF CO NVENIENCE, THE RELEVANT RULE IS REPRODUCED HEREUNDER:- RULE 6DD(K) WHERE THE PAYMENT IS MADE BY ANY PERS ON TO HIS AGENT WHO IS REQUIRED TO MAKE PAYMENT IN CASH FOR G OODS OR SERVICES ON BEHALF OF SUCH PERSON. THE PAYMENT MADE BY THE ASSESSEE RETAIL VENDOR TO T HE PRINCIPAL, GOVERNMENT OF WEST BENGAL THROUGH ITS WHOLESALE AGE NT. THE RELATIONSHIP BETWEEN THE ASSESSEE (AUTHORIZED RETAI LER) AND GOVERNMENT OF WEST BENGAL (THE SUPPLIER) ACTING UNDER WEST BENGAL EXCISE RULES THROUGH ITS AUTHORISED WHOLESALER LICENSEE (AGENT), BOTH DEFACTO AND DEJURE , IS ONE OF PRINCIPAL AND AGENT. WE HO LD THAT THE ASSESSEE RETAIL VENDOR HAD MADE PAYMENT TO THE SAID AGENT (W HOLSESALE LICENSEE) WOULD FALL UNDER THE EXCEPTION PROVIDED IN RULE 6DD (K) OF THE RULES. 24. WE HOLD FROM THE AFORESAID FINDINGS THAT THE ASSESSEES CASE FALLS UNDER THE EXCEPTIONS PROVIDED IN RULE 6DD(B) AND RU LE 6DD(K) OF THE RULES. IN VIEW OF THE AFORESAID FACTS AND CIRCUM STANCES AND RESPECTFULLY 10 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 10 FOLLOWING THE JUDICIAL PRECEDENTS RELIED UPON HEREI NABOVE, WE HAVE NO HESITATION IN DELETING THE DISALLOWANCE MADE U/S 40 A(3) OF THE ACT IN ALL THE YEARS UNDER APPEAL. ACCORDINGLY, THE GROUNDS RA ISED BY THE ASSESSEE FOR ALL THE YEARS UNDER APPEAL ARE ALLOWED. 10. RESPECTFULLY FOLLOWING THE AFORESAID DECISION, WE HOLD THAT THE ASSESSEES CASE FALLS UNDER THE EXCEPTIONS PROVIDED IN RULE 6D D(B) AND (K) OF THE RULES AND ACCORDINGLY, NO DISALLOWANCE U/S 40A(3) OF THE ACT COULD BE MADE IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO THE TUNE OF RS. 29 ,73,086/-. ACCORDINGLY, THE GROUND RAISED IN THIS REGARD IS ALLOWED. HOWEVER, W ITH REGARD TO ANOTHER CASH PAYMENT TO THE TUNE OF RS. 3,48,392/- MADE TO M/S U NITED SPIRITS LTD TOWARDS PURCHASE OF BEER, AS FAIRLY CONCEDED BY THE LD AR , THE SAME IS IN VIOLATION OF SECTION 40A(3) OF THE ACT AND HENCE THE GROUND RAIS ED IN THIS REGARD IS DISMISSED. 5. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THIS TRIBUNAL, WE HOLD THAT THERE COULD BE NO DISALLOWANCE U/S 40A(3) OF THE AC T IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND ACCORDINGLY WE DIRECT THE LD AO TO DELETE THE SAME. ACCORDINGLY THE GROUNDS RAISED BY THE REVENUE ARE D ISMISSED. 6. THE CROSS OBJECTION RAISED BY THE ASSESSEE ARE O NLY SUPPORTIVE OF THE ORDER OF THE LD CITA AND DOES NOT REQUIRE ANY SPECIFIC ADJUD ICATION. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AND CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 22.11.2017 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BALAGA NESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 22.11.2017 SB, SR. PS 11 ITA NO.501/KOL/2015& C.O. NO. 24/KOL/2015 SUDHIR KUMAR MONDAL A.YR.2010-11 11 COPY OF THE ORDER FORWARDED TO: 1. INCOME TAX OFFICER, WARD-1(4), DURGAPUR, AAYAKAR BHAWAN, CITY CENTRE, DURGAPUR-16. 2. SHRI SUDHIR KUMAR MONDAL, L/H SMT. LAXMI RANI MO NDAL, NUTANDANGA, C.S. SHOP, BURDWAN-713363. 3..C.I.T.- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S