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TMI Blog2016 (10) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer and confirmed by the ld. CIT(Appeals) under section 40A(3) of the Act. 2. The assessee in the present case is a partnership firm, which is engaged in the business of trading in Country Spirit and Pachwai. The return of income for the year under consideration was filed by it on 27.09.2010 declaring total income of Rs. 40,890/-. As noticed by the Assessing Officer during the course of assessment proceedings, the assessee-firm had made total purchases of Rs. 82,65,484/- from M/s. Asansol Bottling & Packing Co. Pvt. Limited during the year under consideration and against the said purchases, payment to the extent of Rs. 56,76,743/- was made by depositing cash directly in the Bank Account of M/s. Asansol Bottling & Packing Co. Pvt. Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d compulsion, but what is needed is that compulsion is established by the a appellant on the facts and circumstances of the case of appellant. If so established then naturally benefits (subject to meeting any other specified conditions) of rule 600 will follow. Here the appellant has failed to prove that there is a rule by which he has to pay the bottling plant by cash. No rule exists (even West Bengal Excise (Supply of Country Spirit on Payment of Duty) Rules, 2005 does not make compulsion to pay by cash to the company from where spirit is purchased) and here payment is made to a company having distinct identity and PAN and not Government. 7. The Authorized Representative also submitted that the decision of the Hon'ble ITAT, Special bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved by the order of the ld. CIT(Appeals), the assessee has filed this appeal before the Tribunal. 4. We have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that the issue involved in this appeal of the assessee relating to the disallowance under section 40A(3) is squarely covered in favour of the assessee by the various decisions of this Tribunal. In one of such cases, namely M/s. Amrai Pachwai & C.S. Shop decided by the Tribunal vide its order dated 15.01.2014 passed in ITA No. 1251/KOL/2011, payments were made by the assessee against purchases made from the same party, namely M/s. Asansol Bottling & Packing Co. Pvt. Limited by depositing the cash directly in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted u/s 22 of the Bengal Excise Act, 1909. Hence there could be no doubt that the warehouse is established by the State Excise Commissioner. Hence it could be safely concluded that the warehouse so established by the State Excise Commissioner is a State Government establishment. It would also be pertinent to note that the said warehouse has been specifically established for supply of country spirit to retail vendors (assessee herein) only and not to anybody else. It would be pertinent to look into the definition of 'Wholesale licensee" as per Rule 2(viii) of the Excise Rules 2005 as below.- Rule 2(viii) - "Wholesale licensee" means the wholesale vendor of country spirit to whom licence has been granted in West Bengal E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Excise Commissioner. It would be relevant to reproduce Rule 6DD(b) of the IT Rules at this juncture;- (b) where the payment is made to the Government and, under the rules framed by it, such payment is required to be made in legal tender. In the instant case, the assessee (retail vendor) had made cash payments for purchase of country spirit by depositing cash directly into the bank account of M/s ABPL as per Rule 6(2) of the Excise Rules 2005 , it has to be construed as payment made to the State Government authority and accordingly falls under the exception provided in Rule 6DD(b) of the IT Rules. 22. It is not in dispute that M/s Asansol Bottling & Packaging Co. Pvt Ltd have been granted licence to act as a whole ..... X X X X Extracts X X X X X X X X Extracts X X X X
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