TRIDIP DAS,HOWRAH vs. I.T.O.,WARD-46(4), KOLKATA

The assessee in the present case is an individual, who is engaged in the business of trading in country liquor. The return of income for the year under consideration was filed by him on 30.09.2015 declaring total income of Rs.3,29,320/-. During the course of assessment proceedings, it 1 Assessment Year: 2015-2016 Tridip Das was noticed by the Assessing Officer that the assessee has made payment in cash against the purchases of Rs.21,41,041/- made from M/s Bhattacharyya Bottling Plant Pvt. Limited. Since the said payments were made by the assessee in violation of the provisions of section 40A(3) and the assessee could not explain satisfactorily any exceptional circumstances under which the said payments were made in cash as specified being Rule 6DD of the Income Tax Rules, 1962, the Assessing Officer made a disallowance of Rs.21,41,041/- under section 40A(3) in the assessment completed under section 143(3) vide an order dated 21.12.2017.

Against the order passed by the Assessing Officer under section 143(3), an appeal was filed by the assessee before the ld. CIT(Appeals) and since there was no compliance on the part of the assessee to the notices issued by him fixing the said appeal for hearing from time to time, the ld. CIT(Appeals) dismissed the appeal of the assessee for non- prosecution vide his appellate order dated 19.12.2018 passed ex-parte. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.

I have heard the arguments of both the sides and also perused the relevant material available on record. The ld. Counsel for the assessee has contended that the issue involved in the present case relating to the disallowance made under section 40A(3) in cash by the assessee against purchases of country liquor is squarely covered in favour of the assessee by the decision of the Hon’ble Calcutta High Court in the case of CIT-vs.- Sri Riktwik Kumar Bera (ITAT No. 103 of 2014 dated 11th June, 2018) as well as the various decisions of the Tribunal. The ld. D.R., on the other hand, has submitted that the case, which is being made out now by the ld. Counsel for the assessee before the Tribunal was never made out on behalf of the assessee either before the Assessing Officer or before the ld. CIT(Appeals). He has also contended that the facts of the assessee’s case Assessment Year: 2015-2016 Tridip Das are apparently different than the facts involved in the cases decided by the Hon’ble Calcutta High Court as well as by the Tribunal relied upon by the ld. Counsel for the assessee. He has contended that this matter, therefore, requires verification for which the case may be sent back to the Assessing Officer. I find merit in this contention of the ld. D.R. The impugned order passed by the ld. CIT(Appeals) ex-parte is accordingly set aside and the matter is restored to the file of the Assessing Officer with a direction to decide the same afresh after verifying the relevant facts of the case in the light of the judicial pronouncements cited by the ld. Counsel for the assessee including the decision of the Hon’ble Jurisdictional High Court in the case of Sri Riktwik Kumar Bera (supra).

In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on October 25, 2019.