Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, DELHI BENCH “SMC”, NEW DELHI
Before: SHRI S.V. MEHROTRA
O R D E R PER S.V. MEHROTRA, A.M :
The assessee has filed this appeal against the order of ld. CIT (Appeals) Meerut dated 13.10.2016 for A.Y. 1999-2000. 2. The brief facts of the case are that during the year under consideration, the assessee was carrying on the business of wholesale trading of Atta, Suji, and Besan. He had filed return of income declaring the income of Rs.6,730/-.
The Assessing Officer has observed that in the course of the assessment proceedings for the assessment year 2001-02, it was found that the assessee made purchases in cash exceeding Rs. 20,000/- on different dates. A copy of the books of account of assessee of M/s. Shakti Bhog Foods Ltd. for F.Y. 1999-2000 was obtained by the Assessing Officer, which revealed that the assessee had purchased in cash on different dates exceeding Rs. 20,000/-. He further observed that on some of the dates, the assessee had made purchases exceeding Rs. 20,000/- but had made payments on 2/3 times in a day. He observed that the assessee firm had made a total payments of Rs. 32,95,375/- in cash. 2.1. The Assessing Officer further noticed that the assessee had received an incentive of Rs. 26,440/- which was not shown by the assessee in its return of income. 2.2. In view of the aforesaid reasons notice u/s 148 was issued to the assessee. After considering the assessee’s submission, the Assessing Officer made an addition of Rs. 6,47,888/- u/s 40A(3) and also addition of Rs. 26,440/- on account of incentive. The Ld. CIT (A) has dismissed the assessee’s appeal. Being aggrieved the assessee is in appeal before the Tribunal and has taken following grounds of appeal:-
“1.That the A.O. as well as CIT(A) is erred in facts and law in added Rs. 6,47,888/- without considering the details and reasons filed by the assessee. Hence, order of the A.O. is bad in law. 2.That on similar facts and similar issue the Ld. I.T.A.T. in the year 2001-02 has decided the issue " favour of the assessee. Ld. A.O. ignored the I.T.A.T. Order in the case of the assessee and CIT(A) mislead the facts. Hence, both the authority has not justified on the facts and law. 3.That Ld. CIT(A) has not given any finding on addition made by A.O. of Rs. 26,440/- on account of incentives. 4.That the assessee has right to add/delete or modify any grounds during the appeal proceeding.”
Apropos ground nos. 1 & 2 the Ld. Counsel relied on the order of Tribunal in assessee’s own case for A.Y. 2001-2002 and submitted that the sum of Rs. 20,000/- paid in cash on each day is to considered independently and merely because the payment had been made on a single day vide 2/3 receipts, the same could not be aggregated.
The Ld. DR, however, submitted that the aggregate payment is to be considered for each day and if the same exceeded Rs. 20,000/- then the same is to be disallowed as per provisions of section 40A(3).
I have considered the submissions of both the parties and perused the record of the case. The Tribunal in assessee’s own case for assessment year 2001-02 has, inter alia, observed as under:- “5. The main ground agitated in this appeal is the addition made by the Assessing Officer under section 40A (3) of the I.T. Act for making cash payment exceeding Rs.20,000/- to M/s. Shakti Bhog Limited which is supplying flour to the assessee for distribution. It is the claim of the assessee that flour and other products of M/s.Shakti Bhog Limited are in great demand and therefore assessee had to make cash payment to the supplier in the interest of the assessee’s business. However, no single payment exceeded Rs.20,000/-. Therefore provision of section 40A(3) were not applicable. Although on a single day 2 or 3 payments of Rs.20,000/- each were made, but these were made at different times of the day and represented different transactions. For each payment there was a separate receipt issued by the supplier. 6. The Assessing Officer on appeal did not accept above contention. He was of the view that all the payments made in cash on a single day were required to be clubbed for the purpose of application of section 40A(3) of the I.T. Act.' For the aforesaid view the Id. Commissioner of Income-tax (Appeals) relied upon the decision of Income-tax Appellate Tribunal Delhi in ITANo.4051/Del/2004. 7. The assessee is aggrieved and has brought the issue in appeal. It was reiterated that every transaction through which exact amount of Rs.20,000 in cash was paid was required to be taken separately and there was no justification on the part of the Revenue authorities to club all the payment made on single day for application of provision under section 40A(3) of the IT Act.
The Id. Counsel also showed each and every payment of Rs.20,000/- separate receipt was issued by the payee. He also contended that business of the assessee would have suffered if payments as demanded by the supplier were not made. In fact, act and conduct of the assessee showed that he was trying his best to comply with the statutory provision.
9. The Departmental Representative opposed the above submission by relying upon the decision of lower authorities. She argued that all payments made a single day were required to be clubbed together.
10. The facts stated by the Id. Counsel for the assessee were not disputed before me are fully supported by material on record. I am of the view that the legal point in this issue is not res-integra and is felly cowered decisions of several High Courts, which were cited before me, are follows:- (1). In the case of CIT Vs.Aloo Supply Co. 121 ITR 680 their Lordships observed as under:- "Therefore, if an assessee makes payments at different times during the day and he has no idea that he has to pay to the same person on more than one occasion, he cannot be subjected to the statutory provision contained in s. 40A(3) of the Act, unless any one payment is above Rs.2,500. The statutory limit of Rs.2,500 under s.40A(3) of the Act applies to payment made to a party at a time and not to the aggregate of the payments made to a party in the course of the day as recorded in the cash book. ” It is relevant to observe that SLP filed against the aforesaid decision is dismissed by the Hon’ble Supreme Court. (2). In the case of CIT vs. Triveniprasad Pannalal 228 ITR 680 their Lordships observed as under: - “Section 4QA(3) of the Income-tax Act, 1961, says that the assessee should not incur any expenditure in a sum exceeding Rs.2,5000 otherwise than by a crossed Cheque drawn on a bank or by a crossed
bank draft. Such expenditure shall not be allowed as deduction. Therefore, the law only says that the amount exceeding Rs.2,500/- should not be paid except by way of Cheque drawn on a bank or by a crossed bank draft and if it exceeds this amount, then such expenditure shall not be allowed as deduction. It does not say that the aggregate of the of amount should not exceed Rs.2500/-. The words used are “in a sum ”, /. e. single sum has been used. Therefore, irrespective of any number of transactions, where the amount does not exceed Rs.2,500/- the rigours of section 40A(3) will not apply.” (3). In the case of CIT vs. Kothari Sanitation & Tiles P. ltd. 282ITR 117 their Lordships observed as under:- “ Section 40A(3) of the Income-tax Act, 1961, only says that the amount exceeding the prescribed limit should not be paid except by way of Cheque drawn on a bank or by a cross bank draft and, if it exceeds that amount, then 20 per cent of the expenditure shall not be allowed as deduction. It does not say that the aggregate of the amounts should not exceed the limit. The words used are "in a sum’’ i.e., a single sum. Therefore, irrespective of any number of transactions, where the amount does not exceed the limit, the rigour of section 40A(3) will not apply. The amount should not exceed Rs.20,000. That apart, practicality of the payment has also to be judged from the point of view of a businessman. The assessee was engaged in the business of sanitary fittings and tiles. For the assessment year 1997-98, the Assessing Officer disallowed the claim for certain expenditure under section 40A(3) of the Act on the ground that the payments were made in cash and exceeded Rs.20,000. The assessee preferred cm appeal before the Commissioner (Appeals) on the ground that no single transaction exceeded the prescribed limit under section 40A(3) of the Act and the appeal was allowed. The Revenue preferred an appeal before the Tribunal, which upheld the, order of the Commissioner (Appeals). On a reference: Held, dismissing the appeal, that since it was not disputed that a perusal of the cash book of the assessee revealed that cash payments payments were made in respect of each invoice separately, the Tribunal was right and the payments could not be allowed'.”
11. In the light of the decisions of High Courts cited above and facts and circumstances of the case, I do not see any justification for upholding the disallowance made in this case. In my view provision of section 40A(3) are not applicable in this case. The disallowance made under the above provision is accordingly deleted.”
The Ld. CIT (A) has distinguished this decision observing as under:- “Further, the judgment relies upon the fact that such payments are evidenced from from the cash book which the Appellant has never produced for verification either during assessment or during Appeal. Thus, Appellant’s case is distinguishable on facts with the judgment of ld. ITAT for the year 2001-02. A perusal of the assessment order for Ayr 2001-02 it is, noticed that the assessee has in his submission, which has been incorporated in the assessment order of 2001-02, pointed the days i.e Sundays and holidays which prevented him from making payment through the banking channel pointed out and thus had to resort to cash payment. However, in the year under consideration it is seen that the Assessee or his AR have not presented any such detail. The only argument is that this is covered matter, how it ios a covered matter has clearly not been established. Thus, the doctrine of res-iudicata is not applicable in this case.”
The Ld. CIT(A) has not correctly appreciated the import of decision of Tribunal wherein it has been clearly held that each payment made on a single day has to be considered separately. It is noticeable that to curb this aspect section 40A(3) was amended by Finance Act. 2007 w.e.f. 1.4.2008 and, therefore, prior to that date, the benefit of separate payments on a single day of Rs. 20,000/- or less than of Rs. 20,000/-, cannot be denied to assessee.
8. Respectfully following the decisions of Tribunal the matter is restored to the file of Assessing Officer to recompute the disallowance in terms of aforementioned observations. It may be clarified that if the single payment exceeds Rs. 20,000/- then the disallowance is called for u/s 40A(3).
In the result, both the grounds are partly allowed in terms of aforementioned observations.
Apropos ground no. 3 the brief facts are that the assessee in its reply dated 21.2.2014 submitted that incentive of Rs. 26,444/- received from M/s. Shakti Bhog Foods Ltd. was credited in assessee’s accounts books under the head rebate and discount. The contention was that the amount of Rs. 1,09,100.90 under the head rebate and discount was inclusive of incentive worth Rs. 20,444/-. The Assessing Officer did not accept the assessee’s contention observing that the assessees failed to furnish any authentic evidence to substantiate its arguments.
I have considered the submissions of both the parties. The issue is restored to the file of the Assessing Officer to verify the assessee’s claim with reference to the books of account of assessee and, if, the incentive is already included under the head of ‘rebate and discount’ then no addition is called for. The onus is on assessee to substantiate its claim. In the result the ground is allowed for statistical purposes.
This appeal is against the CIT (A) Meerut’s order dated 20.10.2016 A.Y. 2000-2001. The ground raised
by the assessee are as under:- “1. That the A.O. as well as CIT(A) is erred in facts and law in added Rs. 4,78,920/- without considering the details and reasons filed by the assessee, Hence, order of the A.O. is bad in law.
2. That on similar facts and similar issue the Ld. I.T.A.T. in the year 2001-02 has decided the issue in favour of the assessee. Ld. A.O. ignored the I.T.A.T. Order in the case of the assessee and Ld. CIT(A) mislead the facts. Hence, both the authority has not justified on the facts and law.
3. That Ld. C.IT(A) has not given any finding on addition made by A.O. of Rs. 6,200/- on account of incentives.
4. That the assessee has right to add/delete or modify any grounds during the appeal proceeding.”
Apropos the ground nos. 1 & 2 the facts are identical to assessment year 1999-2000 discussed earlier and, therefore, following the said decision. this ground is allowed in terms of observations made in assessment year 1999-2000. In result both the grounds are partly allowed for statistical purposes.