{"id":231735,"date":"2011-10-18T00:00:00","date_gmt":"2011-10-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-vs-the-on-18-october-2011"},"modified":"2019-01-20T18:04:07","modified_gmt":"2019-01-20T12:34:07","slug":"commissioner-vs-the-on-18-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-vs-the-on-18-october-2011","title":{"rendered":"Commissioner vs The on 18 October, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Commissioner vs The on 18 October, 2011<\/div>\n
Author: Akil Kureshi, Gokani,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nTAXAP\/1849\/2010\t 7\/ 7\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nTAX\nAPPEAL No. 1849 of 2010\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE AKIL KURESHI  \nHONOURABLE\nMS JUSTICE SONIA GOKANI\n \n====================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n====================================================\n \n\nCOMMISSIONER\nOF INCOME TAX - I - Appellant(s)\n \n\nVersus\n \n\nM\/S\nGAMDIWALA DAIRY - Opponent(s)\n \n\n==================================================== \nAppearance\n: \nMRS MAUNA M\nBHATT for\nAppellant(s) : 1, \nNone for Opponent(s) :\n1, \n====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKIL KURESHI\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS JUSTICE SONIA GOKANI\n\t\t\n\t\n\n \n\nDate\n: 18\/10\/2011 \n\n \n\nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE MS JUSTICE SONIA GOKANI)<\/p>\n
1.\tThe
\nappellant-Revenue, being aggrieved by the order of Income Tax
\nAppellate Tribunal dated  12th March, 2010  has preferred
\nthe present Appeal u\/s. 260-A of the Income Tax Act, 1961,
\n(hereinafter referred to as “the Act”) proposing
\nthe following questions of law for  determination of this Court:\n<\/p>\n
[A]\tWhether the Appellate
\nTribunal is right in law and on facts and has correctly the facts on
\nrecord in deleting the disallowance made u\/s. 40A(3) ?\n<\/p>\n
[B]\tWhether the Appellate
\nTribunal is right in law and on facts and thereby holding that the
\naction of the Assessing Officer in rejecting the books of account
\nu\/s. 145 was not proper and consequently deleting addition of
\nRs.18,18,889\/- made by the Assessing Officer as assessee’s profit ?\n<\/p>\n
[C]\tWhether the Appellate
\nTribunal is right in law and on facts in deleting the disallowance of
\nRs.1,06,480\/- made on account of depreciation on motor cars ?\n<\/p>\n
2.\tHeard learned counsel
\nMr.Manish Bhatt appearing for the Revenue. On closely examining  the
\nmaterials placed before this Court  and having regard to the
\nsubmissions made as also considering the orders of adjudicating
\nauthorities, for the reasons to be
\nfollowed hereinafter,  the appeal requires  to be dismissed.\n<\/p>\n
3.\tThe 1st
\nquestion relates to disallowance made u\/s. 40A(3) of the Act by the
\nAssessing Officer  where the cash payments were made by the
\nassessee-respondent to various diaries\/societies  as well as other
\nmilk vendors. The Assessing Officer disallowed the 20% of the total
\namount on the ground that there was high sounding names given to the
\ncollection centers but, in fact, it was a camouflage. There were
\nseven parties examined by the Assessing Officer and although there
\nwas  nothing to indicate that they were not supplying milk to the
\nsocieties, Assessing Officer disbelieved the entire transactions.\n<\/p>\n
\t CIT(A)  deleted the said
\ndisallowance and the Tribunal concurred  with the CIT(A) . Tribunal
\nnoted that there was sufficient explanation furnished by the assessee
\n both before the Assessing Officer and CIT(A) . These payments were
\nmade to the farmers and villagers and they were covered u\/s. 40A(3)
\nread with Income Tax Rules 6DDF  with substantive materials on
\nrecord, and therefore   disallowance was not proper.\n<\/p>\n
4.\t Entire issue has been
\ndealt with extensively by the Tribunal and it thereafter allowed the
\nassessee’s appeal giving clear findings that exception provided under
\nRule 6DD would be made applicable to the case of assessee in the
\nwords of the Tribunal . It has held thus :\n<\/p>\n
“We find
\nfrom the above provisions of Rule 6DD, that the assessee’s case is
\nthe farmers or the producers of milk did not loose their individual
\nidentify and each such farmer was paid for the milk sold by them at a
\nfixed price depending upon the quality of the milk viz. fat contents
\nand quality and this fact coupled with the fact that none has
\nmaintained any regular books of account, none has purchased the milk
\nfrom the farmers independently and made over to the assessee, none of
\nthe entities maintained independent accounts of the farmers except he
\nnothing of he milk contributed by the farmers in terms of quantity
\nand quality viz. fat contents they were paid by the assessee through
\nthe persons who collected the milk from the farmers and supplied to
\nthe assessee. Accordingly, these noting in rough sheets can never by
\nany stretch of imagination be equated to maintaining books of account
\netc. when considered in totality it would be clear that the milk was
\npurchased by the assessee from the producers of milk. We further find
\nthat the assessee during the course of assessment proceedings had
\nfiled the confirmations of various persons who confirmed that they
\nwere procuring milk on  half of the assessee from various producers
\nof the milk and it was supplied to the assessee and in turn the
\nassessee was making payments, which was to be handed over to the
\nproducers and they were handing over such amount to the respective
\nmilk producers. We find that, according in the farmers,
\nthe consideration paid for the same are collected by the president
\nand it was handed over the persons supplying the milk, in the ratio
\nof the milk provided by each person. Thus, they have received the
\namount in the ratio of milk supplied in the name of dairy. These
\ndairies are thus only the facilitating stations for the producer of
\nmilk and the assessee is making purchases directly from the producers
\nand accordingly falls in the exceptions. In view of
\nthe above facts and circumstance, we allow this issue of the
\nassessee’s appeal and dismiss that of the Revenue’s appeal.\n<\/p>\n
5.   \tThis Court examined
\nin the  Tax Appeal No. 1545\/2010  similar question. The  same has
\nbeen held in favour of the assessee and against the Revenue in the
\nfollowing manner:\n<\/p>\n
5.\tIt
\nwas noticed by the Tribunal that cash payment of Rs.87,84,655\/- was
\nmade to different persons for purchase of jaggery and since these
\npurchases were in excess of Rs.20,000\/-, there was contravention of
\nthe provisions of Section 40A(3)and hence 20% of such cash purchases
\nwere added to the income of the assessee. The Tribunal was of the
\nopinion that the Assessing Officer had specifically asked for the
\ndetails of the purchase of jaggery and the proof of purchase as there
\nwas a direct purchase from various agriculturists. It also noted that
\nthe requisite material had been placed before the Assessing Officer
\nwith regard to the purchases of jaggery and copies of village form
\nNo.7\/12 and 8A were also brought  forth to prove the facts that they
\nwere purchased from the agriculturists. The Tribunal also noted that
\nthe same were duly covered under Rule 6DD(f)(i) of the Income Tax
\nRules and after due satisfaction, the Assessing Officer had allowed
\nthis amount and, therefore, the order of the Assessing Officer has
\nbeen upheld by the Tribunal. Rule 6DD and sub-clause (f) of Rule 6DD
\nare reproduced hereunder:-”\n<\/p>\n
“6DD.\tNo
\ndisallowance under sub-section(3) of Section 40A shall be made and no
\npayment shall be deemed to be the profits and gains of business or
\nprofession under sub-section(3A) of Section 40A where a payment or
\naggregate of payments made to a person in a day, otherwise than by an
\naccount payee cheque drawn on a bank or account payee bank draft,
\nexceeds twenty thousand rupees in the cases and circumstances
\nspecified hereunder, namely:-\n<\/p>\n
\t**** \t  ****\t \n ****\n \n\n\n(f)\tWhere the\n<\/pre>\n
payment is made for the purchase of the products and manufactured or
\nprocessed without the aid of power in a cottage industry,  to the
\nproducer of such products;”\n<\/p>\n
\t****    ****  \n ****\"\n \n\n\n \n\n\n \n\n\n6.\tRule\n<\/pre>\n
6DD(f) mentions one of the circumstances, which indicates that when
\nthe payment is made of the products manufactured or processed without
\nthe aid of power in a cottage industry, to the producer of such
\nproducts, injunction specified under Section 40A(3) would not come
\ninto play. In other words, if any person purchases any product
\nmanufactured or processed from the producers directly, who has
\nprocessed such a product, without the aid of power in a cottage
\nindustry, even if the payment is made in aggregate exceeding
\nRs.20,000\/- in a day to a particular person otherwise than by way of
\ncheque, the same may not incur disqualification in terms of rejection
\nof disallowance.\n<\/p>\n
7.\tWhat
\ncan be found here in the case of the present assessee respondent is
\nthat the purchases of jaggery had been made by the assessee from the
\nagriculturist themselves and there was sufficient proof adduced by
\nthe assessee. What can be further noted is that the said payment was
\nmade by way of cash and there was no cheque payment. However, the
\nTribunal after noting that such explanation is permissible and is
\ncovered duly under Rule 6DD(f) of the Income Tax Rules and also
\nholding that when the Assessing Officer had subjectively satisfied
\nhimself with the identities of the persons, it correctly held that
\nthe jaggery is produced at village level where no chemical process or
\nany mechanical process is involved and in this background factual and
\nlegal, the Tribunal has correctly upheld the findings of the
\nAssessing Officer.\n<\/p>\n
6.\tIn
\nthe instant case, the nature of transactions being similar and the
\nprovisions of law applied to the said dealings are also the identical
\n  and as Court earlier had upheld the order of Tribunal in almost
\nsimilar circumstances, in the present case as the Tribunal has dealt
\nwith the issue in accordance with the law,  issue requires no
\ninterference.\n<\/p>\n
7.\tThe
\n2nd
\nquestion  relates to  deletion of addition made by the Assessing
\nOfficer after rejecting the books of account u\/s. 145  of the Act. As
\n noted by the Tribunal,  Assessing Officer rejected the books of
\naccount of assessee u\/s. 145 and added the gross profit.  CIT(A)
\nconfirmed the said order of Assessing Officer.  This was done  on the
\nground that
\nthe assessee’s books of account did not reflect true picture of
\nfinancial profit of the assessee. According to the Assessing Officer,
\non account of much variation of gross profit rate also,  this was so
\ndone. \tThe Tribunal did not agree with the findings of either of the
\nadjudicating authorities and gave its elaborate reasons in this
\nregard. It clearly held that there was no defect in the books of
\naccount maintained by the assessee and the gross profit of the
\nassessee for the year under consideration was better than the earlier
\nyears. It also further considered  the gross profit of  Malank branch
\n vis-a-vis the gross profit of Ahmedabad branch  of
\nassessee-respondent  to hold that merely because expenditure
\npertaining to one branch was accounted in another branch or just
\nbecause  certain sustainable grounds existed for   earlier year’s
\nexpenditure to be accounted this year in one branch, resulting   into
\nanomaly in the books of account ,  the books of account  cannot be
\nrejected nor would that permit the Assessing Officer to make
\nestimation . Resultantly, this addition was quashed . Tribunal since
\nhas given cogent reasons  and  there being absolutely  no infirmity
\nin the  findings arrived at for not sustaining the orders of both the
\nauthorities, this issue requires no further consideration.\n<\/p>\n
8.\tAs
\nregards the 3rd
\nquestion  which  relates to   disallowance made on account of
\ndepreciation on motor cars,  instead of 1\/5th
\nof motor car expenses disallowed by Assessing Officer including
\ndepreciation for personal user, disallowance at 1\/10th
\nof depreciation was found justifiable by the Tribunal. Although
\nthere is no much discussion over the
\nissue, but, on the ground that assessee needed fair disallowance,
\nTribunal has so done it.  This  aspect being factual in nature and
\nwhen discretion is used by the Tribunal  and the  amount  being
\nsmall,  no interference is called for.\n<\/p>\n
\tResultantly, this Tax
\nAppeal raising no question of law for consideration  is dismissed.\n<\/p>\n
    \t\t\t\t\t\t{Akil
\nKureshi, J.}<\/p>\n
            {Ms.Sonia
\n\t\t\t\t\tGokani,J.}<\/p>\n
 Bina**<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Commissioner vs The on 18 October, 2011 Author: Akil Kureshi, Gokani, Gujarat High Court Case Information System Print TAXAP\/1849\/2010 7\/ 7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 1849 of 2010 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI HONOURABLE MS JUSTICE SONIA GOKANI ==================================================== 1 Whether […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-231735","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nCommissioner vs The on 18 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/commissioner-vs-the-on-18-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner vs The on 18 October, 2011 - 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