Smt. Sarla Singh, Hardoi V. The I.T.O., Hardoi

ITA 710/LKW/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0878 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 06-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 40A(3); 133(6)

Judgement Text

I.T.A. NO.710/LKW/2017 ASSESSMENT YEAR:2014-15 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.710/LKW/2017 ASSESSMENT YEAR:2014-15 SMT. SARLA SINGH, GAUSGANJ, SANDILA, HARDOI. PAN:BCKPS 4797 M VS. INCOME TAX OFFICER-3(3), HARDOI. (APPELLANT) (RESPONDENT) O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A), BAREILLY DATED 17/08/2017. THE ONLY GROUND TAKEN BY THE ASSESSEE IS THE ACTION OF LEARNED CIT(A) BY WHICH HE HAS CON FIRMED A DISALLOWANCE OF RS.41,19,400/- WHICH THE ASSESSING OFFICER HAD MADE U/S 40A(3) OF THE I.T. ACT. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT ASSE SSEE IS ENGAGED IN THE BUSINESS OF LIQUOR FOR WHICH IT HAD TO PURCHASE LIQUOR FROM THE AUTHORIZED DEALERS APPOINTED BY EXCISE DEPARTMENT A ND DURING THE YEAR THE ASSESSEE HAD TO MAKE CERTAIN CASH PAYMENTS EXCEEDIN G THE LIMITS PRESCRIBED U/S 40A(3) OF THE ACT FOR WHICH THE AUTHORITIES BEL OW HAVE MADE AND CONFIRMED THE ADDITION. IT WAS SUBMITTED THAT THE PARTY FROM WHOM THE PURCHASES WERE MADE HAD CONFIRMED OF HAVING RECEIVE D CASH PAYMENTS BY SUBMITTING COPY OF ACCOUNT WHICH THE ASSESSING OFFI CER HAD PROCURED U/S APPELLANT BY SHRI SANJAY SAXENA, C.A. RESPONDENT BY S HRI C. K. SINGH, D. R. DATE OF HEARING 12/11/2018 DATE OF PRONOUNCEMENT 16/11/2018 I.T.A. NO.710/LKW/2017 ASSESSMENT YEAR:2014-15 2 133(6) AND IN THIS RESPECT OUR ATTENTION WAS INVITE D TO PAPER BOOK PAGES 3 TO 11 WHERE THE COPY OF ACCOUNT WAS PLACED. IT WAS FURTHER SUBMITTED THAT PURCHASES AGAINST WHOM PAYMENTS WERE MADE IN CASH W ERE ALSO SUBJECTED TO TCS AND WHICH THE ASSESSEE HAD DEDUCTED AND IN T HIS RESPECT OUR ATTENTION WAS INVITED TO PAPER BOOK PAGE 12 WHERE A COPY OF FORM-26AS WAS PLACED. IT WAS SUBMITTED THAT CONFIRMATION BY THE PAYEE ALONG WITH THE FACT OF HAVING DEDUCTED TCS PROVES THE GENUINEN ESS OF TRANSACTION AND IDENTITY OF THE PAYEE IS ALSO PROVED. LEARNED A. R . SUBMITTED THAT IN A NUMBER OF JUDICIAL PRONOUNCEMENTS THE HON'BLE COURT S HAVE HELD THAT WHERE THE GENUINENESS OF THE TRANSACTION IS NOT DOUBTED A ND PAYEE IS IDENTIFIED, NO DISALLOWANCE CAN BE MADE U/S 40A(3) OF THE ACT. RELIANCE IN THIS RESPECT WAS PLACED ON THE DECISION OF HON'BLE CHANDIGARH BE NCH OF THE TRIBUNAL IN THE CASE OF DHURI WINE VS. DCIT IN I.T.A. NO.1155/C HD/2013 DATED 09/10/2015 AND SARBARI SUPPLIMENTARY C.S. SHOP VS. INCOME TAX OFFICER IN I.T.A. NO.858 & 860/KOL/2016 DECIDED BY HON'BLE KOL KATA TRIBUNAL. RELIANCE WAS ALSO PLACED ON A NUMBER OF CASE LAWS INCLUDING THE CASE LAWS OF HON'BLE SUPREME COURT IN THE CASE OF ATTAR SINGH GURMUKH SI NGH VS. INCOME TAX OFFICER AND OUR ATTENTION WAS INVITED TO COPIES OF PAPER BOOK WHERE THE COPIES OF SUCH JUDGMENTS WERE PLACED. 3. LEARNED D. R., ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THR OUGH THE MATERIAL PLACED ON RECORD. I FIND THAT IT IS FACT THAT THE ASSESSEE IS ENGAGED IN THE TRADING OF LIQUOR AND DURING THE YEAR UNDER CONSIDE RATION IT HAD MADE CASH PAYMENTS TO THE TUNE OF RS.41,19,400/- TO ONE M/S F LORA & FAUNA HOUSING AND LAND DEV. PVT. LTD. THE ASSESSING OFFICER DISA LLOWED THE CASH PAYMENTS U/S 40A(3) OF THE ACT. THE LEARNED CIT(A) ALSO UPHELD THE ADDITION. HOWEVER, I FIND THAT CASH PAYMENTS WERE ACCEPTED BY THE PAYEE I.T.A. NO.710/LKW/2017 ASSESSMENT YEAR:2014-15 3 WHICH IS APPARENT FROM THE COPY OF ACCOUNT PLACED A T PAPER BOOK PAGES 3 TO 11 AND FURTHER THE PURCHASES FROM THE PAYEE WERE SU BJECTED TO TCS, A COPY OF FORM-26AS WAS PLACED AT PAGE 12 OF THE PAPER BOO K. HON'BLE CHANDIGARH TRIBUNAL IN THE CASE OF DHURI WINE VS. D CIT (SUPRA) HAS ALLOWED RELIEF TO THE ASSESSEE UNDER SIMILAR FACTS AND CIRC UMSTANCES. SIMILARLY VARIOUS TRIBUNALS AND HIGH COURTS HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE DEPENDING UPON THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE. LEARNED A. R. HAS ALSO ARGUED THAT ASSESSEE WAS BOU ND TO PURCHASE GOODS FROM THE SAME PARTY AS IT WAS APPOINTED BY U.P. GOV ERNMENT AND SELLING RATE WAS ALSO FIXED BY U.P. GOVERNMENT. LEARNED A. R. DURING ARGUMENTS HAD ALSO REFERRED TO A LETTER FROM THE WHOLE SELLER PLACED AT PAGE 21 OF THE PAPER BOOK INSISTING FOR MAKING CASH PAYMENTS. THE REFORE, KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES AND THE JUDICIAL PR ECEDENTS, I FIND IT APPROPRIATE TO REMIT THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHOULD READJUDICATE ON THE ISSUE AFTER TAKING INTO ACCOUNT THE FACTS AND CIRCUMSTANCES OF THE CASE AND VARIOUS JUDICIAL PRON OUNCEMENTS RELIED ON BY THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 16/11 /2018) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:16/11/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW