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IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH: KOLKATA Before:

Shri P.M.Jagtap, Accountant Member and Shri S.S. Viswanethra Ravi, Judicial Member I.T.A No. 732/Kol/2015 Assessment Year: 2010-11

Narayan Rice Mill PAN: AAHFN2436L [ Appellant] For the Appellant For the Respondent

Vs.

Commissioner of Income-tax of Income-tax,Burdwan [Respondent]

: Shri Soumitra Choudhury, Advocate, ld.AR : None appeared/Adj. Petition filed, but rejected

Date of hearing : Date of pronouncement :

03-05-2017 07-06-2017

ORDER Shri S.S.Viswanethra Ravi, JM: This appeal by Assessee is against the impugned order dt. 27-032015 passed u/s. 263 of the Act by the CIT(A), Burdwan for the assessment year 2010-11. 2.

It is noticed that none appeared for the respondent Revenue, but,

however, an application dt. 1-5-2017 filed seeking adjournment. The ld. AR of the assessee before us submits that

the issue involved in this

appeal is covered by an order dt. 29-02-2016 of ITAT Pune Bench, Pune and urged to dispose of the present appeal in terms of the said order. Therefore, on perusal of the record and the issue involved in this appeal is covered by the said decision as relied on by the ld.AR of the assessee proceed to hear the ld.AR and dispose of the same on the basis of material available on record and on merits. Therefore, the adjournment application dt. 1-5-2017 filed by the revenue is rejected.

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3.

The only issue in this appeal is to be decided by us as to whether

the CIT has rightly exercised his jurisdiction u/s. 263 of the Act in declaring the assessment order dt. 17-12-2012 passed u/s. 143(3) of the Act is erroneous and prejudicial to the interest of the revenue in respect of cash payments made by the assessee to West Bengal State Electricity Distribution Company Limited (WBSEDCL) exceeding the prescribed limits in terms of Rule 6DD(b) of the I.T Rules 1962 r.w.s 40A(3) of the Act in the facts and circumstances of the case.

4.

Brief facts of the case are that the assessee is a partnership firm

engaged in the business of rice mill and selling of rice. The assessee filed its return of income for the A.Y 2010-11 i.e the year under consideration declaring at Rs.29,221/-. The AO determined the income of assessee at Rs.1,63,030/- u/s. 143(3) of the Act by an order dt. 17-12-2012.

5.

The CIT by exercising his power u/s. 263 of the Act on a reference

from the JCIT, Range-2, Burdwan under revision found that the assessee has debited Rs.3,03,957/- towards power charges payment made to West Bengal State Electricity Distribution Company Limited (WBSEDCL) in the P & L account. According to CIT the said payments were made in cash to West Bengal State Electricity Distribution Company Limited (WBSEDCL) in contravention of the provisions contemplated in Section 40A(3) of the Act. Under show cause, the assessee submitted that the revision initiated u/s. 263 by the CIT is barred by limitation and West Bengal State Electricity Distribution Company Limited (WBSEDCL) is controlled by Govt. of West Bengal and is functioning under the Department of Electricity, Govt. of West Bengal. The Govt. of W.B is the owner of West Bengal State Electricity Distribution Company Limited (WBSEDCL) and submitted that there was no violation of S. 40A(3) of the Act. The CIT, however, not found acceptable the submissions of assessee. He observed that while declaring the assessment order is erroneous as well as prejudicial to the interest of revenue that the AO completely overlooked the payments 2 ITA No.732/Kol/2015 Narayan Rice Mill

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made

in cash to West Bengal State Electricity Distribution Company

Limited (WBSEDCL)

in the assessment proceedings

and the said

payments on different dates are in contravention of provisions of section 40A(3) of the Act and as such it did not fall under the exception provided under Rule 6DD(b) of the I.T Rules 1962. Relevant portion of finding of the CIT is reproduced herein below:“ It may further be mentioned that in the assessment order u/s. 143(3) the AO has completely overlooked this issue and therefore, it is erroneous in nature. The payment made to West Bengal State Electricity Distribution Company Limited on different dates is in contravention of the provision of section 40A(3) as these payment on different dates do not fall in any exception clause of Rule 6DD. It may be mentioned that the A/R was given opportunity to clarify the specific section/rule clause under which such payment is outside the proviso of Section 40A(3). The assessee failed to make any submission on this point. In view of the above stated discussions the order passed by the AO is erroneous as well as prejudicial to the interest of Revenue. Therefore, proceedings initiated u/s. 263 is as per law. It may be mentioned here that under Rule 6DD(b) payment made to the Government and, under the rules framed by it, such payment is required to be made in legal tender. The payment made to West Bengal State Electricity Distribution Company Limited does not appear to fall under this exclusion clause as such. However, the A.O is directed to re-assure himself by making further enquiry and investigation whether such payment falls under rule 6DD(b) or any other exclusion clause of rule 6DD and then to take action as per law.”

6.

Before us the ld.AR reiterated the same submissions as made before

the CIT and also argued that the

Government of West Bengal is the

owner of West Bengal State Electricity Distribution Company Limited (WBSEDCL) and the issue is covered by exception provided under Rule 6DD(b) of the IT Rules 1962 r.w.s 40A(3) of the Act. In support of the contention, the ld.AR of the assessee placed his reliance on the order of the ITAT Pune Bench, Pune reported in (2016) 70 Taxmann. Com 7 (Pune) (Trib) in the case of Smt. Sapna Sanjay Raisoni Vs. ITO, Ward 2(1) Pune and

submitted that the assessee therein

has made cash payment

exceeding Rs. 20,000/- for the purpose of purchase of scrap from MSRTC(Maharashtra State Transport Corporation, MSEB(Mahatrashtra State Electricity Board and other Government organizations and the AO disallowed the same in terms of violation of section 40A(3) of the Act. The CIT confirmed the same. The Tribunal (ITAT Pune) while relying on the decision of the Hon’ble Supreme Court in the case of Jaswant Sing Charan Singh reported in (1967) AIR 1454 in Civil Appeal No. 2011 of 1966 held that the

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MSRTC is a State and cash payment made therein is covered by 6DD(b) of the IT Rules r.w.s 40A(3) of the Act.

7.

Heard the ld,AR and perused the material available on record. We

find that there is no dispute in respect of said West Bengal State Electricity Distribution Company Limited (WBSEDCL) is controlled and owned by the Govt. of West Bengal. We also find that there is no dispute with regard to genuineness of such payments made to West Bengal State Electricity Distribution Company Limited (WBSEDCL). We find that the CIT assumed his jurisdiction only on the ground that the said cash payments were made on different dates and the same do not fall under any of the exceptions of Rule 6DD of the IT Rules. The CIT also found that inspite of opportunities availed by the assessee, the assessee did not point out any specific section/rule clause on which such payment is outside the proviso of Section 40A(3). Admittedly, the assessee paid such cash payments towards power charges to West Bengal State Electricity Distribution Company Limited (WBSEDCL) and debited the same to its P & L account on different dates from April‘09 to Feb’10. In such circumstances, the question arises before us for our consideration whether West Bengal State Electricity Distribution Company Limited (WBSEDCL)

is a State amenable

to the article 12 of the Constitution. The decision as relied on by the ld.AR of the assessee of the Co-ordinate Bench, ITAT Pune in the case of supra, the ITAT Pune has relied on the decision of the Hon’ble Supreme Court in the case of supra for the purpose of interpretation of expression of other authorities. The Co-ordinate Bench discussed the tests that if a state holds entire capital, control over the corporation can be a state agency or instrumentality of a state. If such corporation enjoys monopoly status and the functions of which are public importance can be termed as State instrumentality. Relevant portion of which is reproduced herein below:12. If these tests are applied on the MSRTC, we observe that the Corporation satisfies majority of the conditions. The entire share capital of MSRTC is owned by State and Central Government. The State has full control over the working, policies and the framework of the Corporation. The Corporation is providing public transport facility to the subjects of the State, even in for remote areas, where ITA Nos.1270 to 1272PN/2014 and others of Raisoni Group sometimes it is not

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economically viable to provide transport service. Thus, it is providing vital function of public importance. 13. The Hon'ble Bombay High Court in the case of Maharashtra State Road Transport Corporation Vs. Diwakar Madhukarrao Malkapure and Others in Writ Petition No.2762/2012 decided on 12-112013 while dealing with an issue relating to payment of compensation to one of the employee of MSRTC has observed as under : "The Petitioner employer is a body Corporate and is State within the meaning of Article 12 of the Constitution of India and therefore it has to act as a Model Employer." 14. Thus, in view of the facts of the case and in the light of observations of the Hon'ble Bombay High Court, we are of the considered opinion that the CIT(A) has erred in holding that MSRTC is not a "State" and cash payments made to MSRTC are hit by the provisions of section 40A(3) of the Act. 15. In so far as genuineness of the payments to MSRTC by the assessees, they are not disputed by the department. Once it has been held that MSRTC is a "State" within the meaning of Article 12 of the Constitution of India, the payments cannot be disallowed u/s.40A(3). The provisions of Rule 6DD would protect the assessee from such disallowance. The assessees have explained that cash payments have been made to MSRTC on successful bid of scrap auction. The payments are made in cash immediately to guard against the pilferage of scrap. Thus, cash payments are also made out of business expediency. Therefore, in our considered view, no ITA Nos.1270 to 1272PN/2014 and others of Raisoni Group disallowance can be made u/s.40A(3) in the facts of the present case. 16. Our view is fortified by the decision rendered in the case of Sri Laxmi Satyanarayan Oil Mill Vs. CIT (Supra). The Hon'ble High Court has held that no disallowance can be made u/s.40A(3) where genuineness of payment is not doubted. The relevant extract of the observation of the Hon'ble Court are as under : "18. . . . . . . . . . . Section 40A(3) must not be read in isolation or to the exclusion of rule 6DD. The section must be read along with the rule. If read together, it will be clear that the provisions are not intended to restrict the business activities. There is no restriction on the assessee in his trading activities. Section 40A(3) only empowers the Assessing Officer to disallow the deduction claimed as expenditure in respect of which payment is not made by crossed cheque 0n crossed bank draft. The payment by crossed cheque or crossed bank draft is insisted on to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of the income from undisclosed sources. The terms of section 40A(3) are not absolute. Considerations of business expediency and other relevant factors are not excluded. Genuine and bona fide transactions are no taken out of the sweep of the section. It is open to the assessee to furnish to the satisfaction of the Assessing Officer the circumstances under which the payment in the manner prescribed in section 40A(3) was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee to identify the person who has received the cash payment. Rule 6DD provides that an assessee can be exempted from the requirement of payment by a crossed cheque or crossed bank draft in the circumstances specified under the rule. It will be clear from the provisions of section 40A(3) and rule 6DD that they are intended to regulate business transactions and to prevent the use of unaccounted money or reduce the chances to use black money for business transactions." 17. In the case of Gurudev Garg Vs. CIT the Hon'ble Punjab & Haryana High Court has held that where genuineness of transaction made in cash in excess of Rs.20,000/- was not disbelieved by the authorities, the same cannot be disallowed u/s.40A(3) of the Act. 18. In view of the facts of the case and the case laws discussed above, we are of the considered view that the provisions of section 40A(3) are not attracted on the cash payments made by the ITA Nos.1270 to 1272PN/2014 and others of Raisoni Group assessees to MSRTC. The provisions of Rule 6DD (b) provide exception to Section 40A(3) where cash payments are made to Government. The aforesaid exception will operate in the case of the assessee. Thus, the CIT(A) has erred in holding that disallowance u/s.40A(3) is to be made in respect of cash payments made by assessees to MSRTC. The impugned orders are set aside and the AO is directed to delete the disallowing made u/s.40A(3) in the impugned assessment years. Accordingly, ground Nos. 1 to 5 raised in the appeals are allowed.

Respectfully following the above, we hold that cash payments made to West Bengal State Electricity Distribution Company Limited (WBSEDCL) is covered by the exception Rule 6DD(b) of the IT Rules and as such no 5 ITA No.732/Kol/2015 Narayan Rice Mill

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disallowance u/s. 40A(3) of the Act can be made. Therefore, the grounds raised by the assessee are allowed.

8.

In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 07-06-2017

Sd/P.M.Jagtap Accountant Member

Sd/S.S. Viswanethra Ravi Judicial Member

Dated :07-06-2017 PP(Sr.P.S.) Copy of the order forwarded to: 1. Appellant – Narayan Rice Mill 72 G.T Road, Chotonilpur More, Sripally, Dist-Burdwan-713103. 2 Respondent – The Commissioner of Income Tax, Aaykar Bhawan, Court Compound, Burdwan-713101. The CIT(A), Kolkata 4. The CIT Kolkata 3. 5.DR,ITAT,Kol 6. Guard File True Copy By Order Sr.PS, H.O.O ITAT Kolkata

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