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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI C.M. GARG & SHRI O.P. MEENA
आदेश /O R D E R
PER SHRI C.M. GARG, JM
This appeal has been filed by the assessee against the
order of the learned CIT(A)-II, Indore, dated 30.6.2016 in
Shri Arun Kumar Yadav ITA No. 921/Ind/2016 First Appeal No. IT-642/14-15/111 for the assessment
year 2012-13.
The sole effective ground raised by the assessee–appellant
reads as follows :-
“That, on the facts and in the circumstances of the case, the CIT(A) erred in maintaining disallowance u/s 40A(3) of the Act of Rs.2,35,550/- without properly appreciating the facts of the case and submission made before him.”
Briefly stated, the facts of the case are that the filed the rio on
18.9.2012 declaring total income at Rs.1,15,71,960/- and
agricultural income of Rs. 37,57,038/-. The assessee derives
income from dealership of Hero Honda Motor Cycles, Spares &
Accessories, Nursery and Petrol Pump business. The case was
selected for scrutiny through CASS and notice u/s 143(2) of the Act
was issued on 6.8.2013 which was duly served upon the assessee.
Thereafter, notice u/s 143(2) of the Act was issued along with
questionnaire, in response to which the assessee attended and
furnished the requisite details. During the course of assessment
proceedings, the Assessing Officer observed that the assessee had
made payments to the transporter in cash for more than the limit
prescribed u/s 40A(3) of the Act. He further observed that in 2
Shri Arun Kumar Yadav ITA No. 921/Ind/2016 Vrindavan Nursery, the assessee claimed expenses on
transportation in cash the details of which are as under :-
M/s M.P. Andhra Transport 35,000 28.6.2011 Company Transportation charges on Bilty 35,700 16.7.201
M/s New Goodwill Transport Co. 45650 16.7.2011
M/s New Goodwill Transport Co. 36800 27.7.2011
M/s New Goodwill Transport Co. 46040 6.8.2011
M/s New Goodwill Transport Co. 36360 6.8.2011
Total 2,35,550
The Assessing Officer noted that the above payments were made in
cash. He, therefore, disallowed Rs. 2,35,550/- u/s 40A(3) of the
Act.
Being aggrieved with the above disallowance made by the
Assessing Officer, the assessee preferred first appeal before the
learned CIT(A). Before the learned CIT(A), the main submissions of
the assessee was that the cash payment has been made by the
assessee in regard to the transactions in nursery business which is
in the nature of agricultural income. The learned CIT(A) on
consideration of the facts of the case in view of the submissions of
Shri Arun Kumar Yadav ITA No. 921/Ind/2016 the assessee observed that the transactions are to be considered in
totality of the business and not as a unit. He, therefore, upheld the
action of the Assessing Officer in disallowing the claim of the
assessee u/s 40A(3) of the Act.
Aggrieved with the order of the learned CIT(A), the assessee
has preferred the present appeal before the Tribunal.
We have heard the arguments of both the sides and carefully
perused the relevant material placed on record of the Tribunal,
inter-alia, written synopsis and paper book filed by the assessee
spread over 58 pages and the orders of the authorities below.
From the assessment order, it is clearly discernible that the
Assessing Officer by invoking the provisions of section 40A(3) of the
Act (for short “Act”), disallowed the payment of Rs. 2,35,550/- and
as per the learned counsel for the assessee, this expense was
incurred by the assessee towards transportation in respect of
Vrindavan Nursury. From the computation of income filed along
with the return of income it is also vivid that the assessee has
claimed agricultural income of Rs.37,57,038/- out of which the
assessee has shown nursing income of Rs.4,60,705/-. Hence, this
Shri Arun Kumar Yadav ITA No. 921/Ind/2016 is undisputed that the transportation charges paid by the assessee
were incurred against the nursery income.
The learned counsel for the assessee placing reliance on the
decision of the Hon'ble Allahabad High Court in the case of U.P.
HardwareStore vs. CIT;104 ITR 664 (All) submitted that the
provisions of section 40A(3) of the Act have been made only to
regular the business activities and to prevent unaccounted money
being used for unaccounted transactions and this restriction
cannot be invoked on the expenditure which has been incurred for
earning exempt agricultural income. The learned counsel for the
assessee drew our attention to sub-section (1) of section 40A of the
Act and submitted that the provisions of this section shall have
effect relating to the computation of income under the head “profit
and gains from business or profession”.
Reply to the above, the learned DR strongly supported the
action of the Assessing Officer as well as its confirmation by the
learned CIT(A). However, the learned DR could not controvert this
fact as noted by the Assessing Officer in para 4 of the assessment
order that the impugned expenditure has been claimed by the
assessee towards transportation expenses on Vrindavan Nursery 5
Shri Arun Kumar Yadav ITA No. 921/Ind/2016 and the assessee has simultaneously shown the agricultural income
of Rs. 4,60,705/- as per computation of income submitted along
with the return of income (assessee’s paper book pages 5 & 6).
In view of letter and spirit of section 40A(1) & (3) of the Act,
it is clearly discernible that this provision can be invoked by the
Assessing Officer pertaining to the computation of income under the
head profit and gains from business or profession and when the
Assessing Officer himself had accepted the income of the assessee
from Vrindavan Nursery as agricultural income and allowed the
same as exempt then the provisions of sub-section (3) of section
40A of the Act cannot be invoked for making the disallowance of
expenditure which has been incurred towards earning the exempt
agricultural income from Vrindavan Nursery.
In view of the above discussion, we reach to the logical
conclusion that the disallowance made by the Assessing Officer and
upheld by the learned CIT(A) is not sustainable and thus we delete
the same.
Accordingly, the sole ground of the assessee is allowed.
In the result, the appeal of the assessee is allowed with the
direction to the Assessing Officer to delete the addition. 6
Shri Arun Kumar Yadav ITA No. 921/Ind/2016 The order has been pronounced in open Court on 28th
February, 2017.
Sd/- sd/-
लेखा सद�य �या�यक सद�य (O.P.Meena) (C.M. Garg) Accountant Member Judicial Member
February 28th , 2017. Dn/