ITO, WARD - 1(2),, JALPAIGURI vs M/S. ETHELBARI C.S. SHOP, JALPAIGURI

Income Tax Appellate Tribunal, KOLKATA ‘C’ BENCH, KOLKATA

Before: Sri J. Sudhakar Reddy & Sri S.S. Godara

order : February 19th, 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.

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.

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 :-

Assessment Year: 2015-16 M/s. Ethelbari C.S. Shop In view of the above, we find that the assessee has a commercial expediency In view of the above, we find that the assessee has a commercial expediency 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 under Rule 6(2) of the West Bengal Rules referred to above to make payments e payments to the credit of M/s. Asansol Bottling and Packaging Pvt. Ltd., Burdman and to the credit of M/s. Asansol Bottling and Packaging Pvt. Ltd., Burdman and 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 M/s. Asansol Bottling and Packaging Pvt. Limited, Burdman who is deemed to 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 be an agent of the State Government, as such in terms of Rule 6DD(b) and Rule be an agent of the State Government, as such in terms of Rule 6DD(b) and Rule 6DD(k) of the Income Tax Rules, they are exempted and the disallowance made come Tax Rules, they are exempted and the disallowance made come Tax Rules, they are exempted and the disallowance made under section 40A(3) of the Act cannot be sustained. We, therefore answer this under section 40A(3) of the Act cannot be sustained. We, therefore answer this 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 issue in favour of the assessee and that the order of the authorities below issue in favour of the assessee and that the order of the authorities below cannot be sustained. cannot be sustained. In view of the abo In view of the above binding judgment of Hon. ITAT, the addition made u/s ve binding judgment of Hon. ITAT, the addition made u/s 40A(3) does not survive. In the result, this ground is allowed. " 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 In view of the decision of my Ld. Predecessor on the same issue in case of assessee 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 16 and the decision of Hon’ble ITAT in the case of Ashok Kr. Mondal, ’ble ITAT in the case of Ashok Kr. Mondal, Burdman vs. Income Tax Officer, Ward Burdman vs. Income Tax Officer, Ward-2(2), Asansol dated 16.09.2016 vide 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 163/Kol/2014, the addition made by the A.O. cannot be sustained and the ground of appeal 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 Consistent with the view taken by the Co-ordinate Bench of the Tribunal in ordinate Bench of the Tribunal in similar cases, we uphold the order of the ld. CIT(A) and dismiss this appeal of the similar cases, we uphold the order of the ld. CIT(A) and dismiss this appeal of the similar cases, we uphold the order of the ld. CIT(A) and dismiss this appeal of the revenue.

In the result, appeal of the revenue is dismissed. In the result, appeal of the revenue is dismissed.

Kolkata, the Kolkata, the 19th day of February, 2020 0.

Sd/- Sd/- [S.S. Godara] [J. Sudhakar Reddy J. Sudhakar Reddy] Judicial Member Accountant Member Accountant Member Dated : 19.02.2020 {SC SPS} Assessment Year: 2015-16 M/s. Ethelbari C.S. Shop Copy of the order forwarded to:

1. 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 1(2), Jalpaiguri 3.CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata.

5. CIT(DR), Kolkata Benches, Kolkata.

ITO, WARD - 1(2),, JALPAIGURI vs. M/S. ETHELBARI C.S. SHOP, JALPAIGURI