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TMI Blog2021 (12) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has grievously erred in confirming the disallowance of Rs. 1,01,650/- made u/s 40A(3) of the Act." 2. Brief facts of the case are that assessee is a co-operative society engaged in marketing of agricultural produce of its members and also running a consumer stores. For assessment order (AY) 2009-10, the assessee filed return of income on 02.09.2009 declaring income of Rs. 19,69,068/-.The case was selected for scrutiny assessment and the assessment was completed under section 143(3) of the Act, 1961 (in short 'the Act') by making disallowance under section 40A(3) of Rs. 1,01,650/- on account of payment made to transporters in cash in excess of Rs. 20,000/- in day. On appeal before the Ld. CIT(A) the disallowance was upheld in order dated 07.11.2012.Further aggrieved the assessee filed before the Tribunal. The Tribunal restored the matter back to the Assessing Officer to decide the issue de novo. 3. In the de novo proceedings, the Assessing Officer noted that assessee purchased fire crackers from Shivkashi and made payment for transportation. The assessee was asked to furnish the receipt of transportation and voucher thereof. On perusal of such receipt and voucher, the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the condition specified that if the transporters are not paid their charges the recipient (assessee) is liable to pay demurrage charges. Further condition No.17 states that further charges if not paid or payable at the time of delivery the company (transporter) has lien on the goods carry for freight and further charges not paid, the consumer is primarily liable for payment of freight and other charges. Thus, condition No.17 specified that if freight is not paid by the assessee, at the time of delivery there would be lean on the goods transported by the transporter, this was also one of the reason for making cash payment. The reply of assessee was not accepted by Assessing Officer by taking view that assessee simply reiterated which was already rejected. During first round of appeal the assessee before Tribunal, stated that they have not made any payment exceeding Rs. 20,000/- in order to attract the provision of section 40A(3), and on the other hand the assessee in its submission dated 17.09.2014 stated that they were compelled to make payment in cash. And that the case of assessee is not covered under Rule- 6DD(j) of the Income Tax, Rule, 1962. On the basis of aforesaid obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of delivery, the transporter has lien on the goods carried on freight and other charges, which if not paid. This was one other reason to make cash payment. 8. The ld.AR for the assessee further states that genuineness of payment is not doubted. Out of more than Rs. 1.00 crore only Rs. 1 lakh was paid in cash. The Ld. AR for the assessee submits that the paramount consideration of Rule 6DD(j) to reduce the possibility of black-money as held by Hon'ble Supreme Court in the case of Attar Singh Gurmukh Singh vs. ITO (1991) 191 ITR 667 (SC), however, it does not eliminate the condition of business expediencies. The ld. AR for the assessee submits the Hon'ble jurisdictional High Court in the case of Anupam Tele Services vs. Income Tax Officer (2014) 43 taxmann.com 199 (Guj) has laid down certain guidelines / conditions to allow cash payment under certain circumstances. The ld. AR for the assessee submits that Hon'ble jurisdictional High Court has laid down certain conditions herein, the cash payment is allowable. The assessee was compelled under the circumstance to pay the said amount in cash at the time of delivery of fire crackers to avoid the demurrage charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque against such delivery immediately. Further it is not the case of assessee that the assessee was maintaining the bank account in co-operative Bank and realisation of cheque from their banker take a longer time. In our view the case law relied by Ld. AR of the assessee in Anupam Tele Services (supra) is not applicable on the facts of the present case. In the said case, the principal company insisted that payment by cheque which was drawn a co-operative bank takes longer time in realization and they insisted for payment. Moreover, the said case law relates to assessment year 2006-07. The Rule 6DD has been amended in the year 2008 by making significant changes with effect from assessment year 2009-10, which is subject assessment year in the present case. 11. We find one more reason as recorded by ld CIT(A) that during the first round of appeal before the Tribunal, the Ld. AR of the assessee took his stand that assessee has not made payment exceeding of Rs. 20,000/- or aggregate of exceed of Rs. 20,000/- in order to attract the provision of section 40A(3) of the Act. The assessee instead of substantiating that submission raised a new plea by taking the excuse of alleged con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj Rs. 58,515 Interest Kamachari Mal Karaj Rs. 6,457 Interest on ThresharKhedanKharaj Rs. 2,319 T O T A L Rs. 4,02,379 16. The assessee further stated that they are selling fertilizers; seed etc. to its members and credit the assessee is in earning interest from profit for sale of products. Similarly, assessee providing tractor as well as thresar facilities to its members who do not own their agricultural implements. The assessee has also given short term advances for agriculture products and interest earned on it. Thus, all such income, the assessee claimed deduction under section 80P(2)(a)(iii).The assessee also relied on certain case law. The reply of assessee was not accepted by Assessing Officer. The Assessing Officer held that assessee claimed wrong deduction of Rs. 4,02,379/- under section 80P(2)(a)(iii). Accordingly, the AO disallowed the claim of Rs. 4,02,379/- under section 80P(2)(a)(iii) in re-assessment order passed under section 143(3) r.w.s. 147 dated 16.12.2015. 17. Aggrieved by the disallowance, the assessee filed appeal before Ld. CIT(A). The assessee challenged the disallowance under section 80P(2)(a)(iii) only. Thus, reopening under section 147 attained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w additional fact is required to be brought on record for adjudication of additional ground of appeal. The fact necessary required for adjudication of additional grounds of appeal are emanating from the order of lower authorities. To support his submissions, the ld. AR of the assessee relied on the decision of Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. Commissioner of income-tax (1998) 229 ITR 383 (SC). 20. On the other hand, the ld. Sr.DR of the Revenue objected for raising the additional ground of appeal. The ld. Sr.DR of the Revenue submits that there is no finding of Assessing Officer or ld. CIT(A) qua the additional ground of appeal raised by assessee at this stage. The assessee wants to set up new case at this stage; such plea as raised by the assessee was not examined by the lower authorities. The assessee cannot raise such new plea which was not raised before lower authorities without giving opportunity to the lower authority for considering such plea. The Ld. Sr-DR of the Revenue submits that additional ground of appeal may not be admitted. 21. In the alternative and without prejudice submissions, the ld. Sr. DR for the revenue submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012-13 the issue was decided against the assessee. In our view, there is no estoppel against the law. Mere surrender of any claim in particular year would not debar the assessee for claiming such claim in subsequent years, for which the assessee is legally entitled. 25. Before us, the ld. AR of the assessee has not argued anything on the ground of appeal against originally. Thus, the original ground of appeal is treated as not pressed and dismissed. The ld. AR for assessee made emphasis that assessee is eligible for deduction under section 80P(2)(a) (i) & (iv) of the Act. We find that the assessee has claimed deduction on account of various income which we have recorded in para 15 (supra). Considering the fact that assessee has raised additional grounds of appeal for the first time before Tribunal. No new facts are required to adjudicate the additional grounds of appeal. The assessee in facts seeking deduction under different clauses of section 80P(2)(a) only. In our view, the assessee has right to raise new claim in additional ground of appeal before the appellate authority as has been held by series of decisions of superior courts. Therefore, the additional grounds of appeal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal identical to the sole ground of appeal in ITA No.2198/AHD/2015 for assessment year 2009-10, which we have dismissed. Considering the following principle of consistency, this ground of appeal is dismissed with similar observation. In the result ground No. 2 of the appeal is dismissed. 32. In the result, assessee's appeal is partly allowed. ITA No.1764/AHD/2017 for AY 14-15. 33. The assessee has raised the following ground of appeal:- "(1) That on facts and in law, the learned CIT(A) has grievously erred in confirming the disallowance u/s 80P(2)(a)(iii) of the Act of Rs. 2,65,176/-." 34. Further vide application dated 03.08.2021 the assessee has raised the following additional ground:- "1. That on facts and in law and in the alter4nate and without prejudice, deduction u/s 80P(2)(a)(i) and section 80P(2)(a)(iv) of the Act ought o be granted to the appellant." 35. The ld. AR of the assessee has not argued anything on the ground of appeal raised primarily. Thus, the original ground of appeal is treated as not pressed and dismissed. 36. We find that alternative ground appeal raised by assessee is identical to the additional ground of appeal raised in ITA No.2386/Ahd/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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