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2019 (10) TMI 1115 - AT - Income TaxRectification u/s 254 - Validity of reopening of assessment - AO has originally passed order under section 143(3) on 20.02.2014 and, therefore, the subsequent reopening of the order of the AO to make the disallowance under section 40A(3) - HELD THAT:- All the contentions of the assessee as well as the decisions relied upon by the ld. A/R of the assessee were considered by the Tribunal while passing the impugned order. Tribunal has specifically discussed the relevant facts pertaining to the violation of section 40A(3) of the Act which were pointed out by the Audit Party - AO has completely ignored the mandatory provisions of section 40A(3) at the time of passing the order under section 143(3) and subsequently the audit party has pointed out the fact of violation of provisions of section 40A(3) when the assessee has made the payment in cash exceeding the minimum limit as provided under section 40A(3). This fact of payment in cash exceeding the limit as provided under section 40A(3) is not in dispute and, therefore, in those facts, the Tribunal has held that the reopening was valid. The decision taken by the Tribunal on merits of the case cannot be reversed in the proceedings under section 254(2) of the Act by re-appreciating the same facts and decisions relied upon by the ld. A/R of the assessee. Therefore, the assessee has not pointed out any apparent mistake in the order of the Tribunal qua this issue. Accordingly, we do not find any merit or substance in the mistake alleged by the assessee in the Miscellaneous application Addition u/s 40A(3) - taxi fare and dish installation charges - HELD THAT:- As regards the disallowance made under section 40A(3) of the Act in respect of taxi fare, the Tribunal has discussed the relevant fact that each payment is exceeding ₹ 20,000/- and was represented by a separate bill. Therefore, to that extent the expenditure was clearly hit by the provisions of section 40A(3) of the Act. Accordingly, we do not find any apparent error in the order of the Tribunal qua the disallowance made under section 40A(3) on account of taxi fare. Second disallowance was made in respect of the dish installation charges made in cash. To the extent of the payment made in cash exceeding ₹ 20,000/-, our decision on this issue regarding taxi fare charges is applicable mutatis mutandis. However, we find that the Tribunal has observed that the dish installation are not main business of the assessee and the assessee has not shown any income from the said activity which is based on the record that in the Profit & Loss account no such income is shown on account of dish installation activity. However, now the ld. A/R has submitted that the activation charges shown in the Profit & Loss account are regarding the income from dish installation activity. Though apart from the submission of the ld. A/R, no other material is produced before us to give a concluding finding, therefore, we modify our observation in para 8 of the impugned order.
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