TMI Blog2018 (5) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of assessee is doubtful whether assessee is an agent of SMS Auto but AO was very much empowered under the provision of law to ascertain the facts that whether assessee is an agent of SMS Auto. But he failed to exercise his power given under the statute. In our considered view the benefit of doubt goes in favour of assessee. In view of the above, we have no hesitation to reverse the orders of Authorities Below. - Decided in favour of assessee. - ITA No.229/Kol/2016 - - - Dated:- 3-5-2018 - Shri Waseem Ahmed, Accountant Member and Shri S.S.Viswanethra Ravi, Judicial Member For The Appellant : Shri P.K. Das, Advocate For The Respondent : Shri A. Bhattacherjee, Addl CIT-DR ORDER PER Waseem Ahmed, Accountant M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may kindly be held accordingly. 4. For that your petitioner craves the right to put additional grounds and/or to alter/amend/modify the present grounds at the time of hearing. Shri P.K. Das Ld. Advocate appeared on behalf of assessee and Shri A. Bhattacherjee, Ld. Departmental Representative appeared on behalf of Revenue. 2. Sole issue raised by assessee in this appeal is that Ld. CIT(A) erred in confirming the order of Assessing Officer by sustaining the disallowance of ₹ 15,83,647/- under the provision of Section 40A(3) of the Act. 3. Briefly stated facts are that assessee is an individual and dealer of two wheelers company namely M/s SMS. During the year under consideration, assessee has made payment in cash for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear provisions of Sec.4A(3) of the Act. The appellant s argument is that the payments were not made on account of expenses of the appellant at all because the appellant was only an agent of SMS Auto and not a customer. SMS Auto used to sale motor cycles to its customers through the appellant and the appellant used to collect the sales proceeds for and on behalf of SMS Auto. It was also contended that the books of account and ledgers were not properly examined by the AO. The AR was given an opportunity to produce the books of account but on 27.11.2015, it was stated that the books of account could not be produced. I have examined the assessment record and find from the copy of account furnished by SMS Auto that bills used to be raised on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the assessee was acting as agent of SMS Auto. Therefore, there was no violation of Rule 40A(3) of the Act. On the other hand, Ld. DR submitted that there is no evidence suggesting that there was existent the relationship of agency between assessee and the SMS Auto. Therefore the assessee has violated the provision of Section 40A(3) of the Act by making the cash payment. He vehemently relied on the order of Authorities Below. 6. We have heard the rival contentions of both the parties and perused the materials available on record. In the present case, the issue is related to the disallowance made by the AO u/s 40A(3) of the Act by making cash payment exceeding ₹ 20,000/-. The view taken by the AO was subsequently c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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