MUCHHALA MAGIC LAND P.LTD, MUMBAI V. DCIT 8(2), MUMBAI

ITA 3459/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0214 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 15-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: D C JAIN
• Keywords: Business expenditure; Non-deduction of tax
• Section: 40A(3); 14A; 37

Judgement Text

, , B, INCOME TAX APPELLATE TRIBUNAL BENCHES B,MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER, AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 3459/MUM/2014 ASSESSMENT YEAR: 2010-11 MUCHHALA MAGIC LAND PVT. LTD., C/O. D.C. JAIN & CO. 75 BOMBAY MUTUAL BLDG. 293, DR. D.N. ROAD FORT, MUMBAI 400001 / VS. DCIT 8(2) R. NO. 209, AAYAKARBHAVAN, M.K. ROAD, MUMBAI-400020 (APPELLANT) (RESPONDENT ) P.A. NO. AA BCM1017B APPELLANT BY MR. D.C. JAIN ( A R) RESPONDENT BY MR. SUMAN KUMAR ( D R) / DATE OF HEARING: 10 /0 4 /2017 /DATE OF ORDER: 26 /0 5 /2017 / O R D E R PER PAWAN SINGH, J.M: THIS APPEAL UNDER SECTION 253 OF INCOME TAX ACT IS DIRECTED BY ASSESSEE AGAINST THE ORDER OF CIT(A)-17 MUMBAI, DAT ED 19/02/2014 FOR ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISE D THE FOLLOWING GROUNDS OF THE APPEAL. GROUNDS OF APPEAL: 1) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED CIT(A ) ERRED IN CONFIRMING THE ADDITION OF RS. 5,77,953/- BEING DEEMED RENT INCOME, MADE BY THE ASSESSING OFFICER. 2) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 12,500/- U/ S. 14A R.W. RULE 8D, MADE BY THE ASSESSING OFFICER. 3) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 17,500/- ON ACCOUNT OF ITA NO.3459/M/2014 MUCHHALA MAGIC LAND 2 PAYMENTS TO TRAFFIC POLICE FOR POLICE BA NDOBUST STATING NON- BUSINESS EXPENDITURE MADE BY THE ASSESSING OFFICER. 4) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 45,411/- ON ACCOUNT OF NON DEDUCTION OF TDS ON INTEREST PAID ON CAR LOAN M ADE BY THE ASSESSING OFFICER. 5) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,17,160/- BEING PURCHASE OF FUEL (DIESEL) IN CASH MADE BY THE ASSES SING OFFICER. 6) UNDER THE FACTS AND CIRCUMSTANCES THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 1,23,51 7/- OUT OF BUSINESS PROMOTION EXPENSES MADE BY THE ASSESSING O FFICER. 7) THE APPELLANTS CRAVE LEAVE TO ADD, AMEND ALTER ; DELETE THE GROUND/S OF APPEAL AT OR BEFORE THE HEARING OF APPEAL. 2. WE HAVE HEARD THE LD. AR OF THE ASSESSEE AND THE LD DR FOR REVENUE. AT THE OUTSET THE LD. AR OF THE ASSESSEE SUBMITS THAT GROUND NO.1, 2, 4 AND 6 ARE COVERED IN HIS FAVOUR B Y THE DECISION TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2009-10. THE GROUND NO7 IS GENERAL IN NATURE AND NEED NO ADJ UDICATION. THE LD. DR FOR THE REVENUE NOT DISPUTED THE CONTENTION OF LD. AR OF THE ASSESSEE. 3. FIRST GROUND OF APPEAL RELATES TO THE CONFIRMIN G THE ADDITION OF RS. 5,77,953/- ON ACCOUNT OF DEEMED RENTAL INCOME. 4. WE HAVE SEEN THAT THE SIMILAR ADDITION WAS MADE AGAINST THE ASSESSEE IN ASSESSMENT YEAR 2009-10 AND THE ASSESSE E APPROACHED THE TRIBUNAL. THE TRIBUNAL IN ASSESSEES APPEAL FOR AY 2009-10 IN ITA NO. 7605/M/2012VIDE ORDER DATED 06/01/2017 PASS ED THE FOLLOWING ORDER: WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL BEFORE US. WE FIND THAT ASSESSEE WAS OWNER OF TWO FLATS, THAT SAME WERE RENTED IN THE EARLIER YEARS AND IT HAD OF FERED THE RENTAL INCOME IN ITS RETURNS, THAT BEFORE THE AO / FAA IT WAS ITA NO.3459/M/2014 MUCHHALA MAGIC LAND 3 CLAIMED THAT DURING THE YEAR UNDER CONSIDERATION RE PAIR AND RENOVATION WAS CARRIED OUT AND THE FLATS WERE NOT R ENTED OUT, THAT IT WAS ALSO CLAIMED THAT THE FLATS WERE USED FOR OF FICE PREMISES, THAT IN THE SUBSEQUENT YEARS THE AO HAD NOT MADE AN Y ADDITION UNDER THE HEAD BEINGS RENTAL INCOME. ONCE THE ASSE SSEE HAD PRODUCED THE BILLS OF REPAIRS AND RENOVATION OF THE FLATS AND THE AO HAD TREATED THE SAID EXPENDITURE AS CAPITAL EXPE NDITURE, THERE WAS NO JUSTIFICATION FOR MAKING ANY ADDITION UNDER THE HEAD HOUSE PROPERTY INCOME. BOTH THE AUTHORITIES HAVE N OT PROVED THAT THE FLATS WERE RENTED OUT DURING THE YEAR UNDER APP EAL. AS PER THE SETTLED PRINCIPLES OF TAXATION IF ANY SUM HAS T O BE TAXED THE AO HAS TO BRING ON RECORD THE NECESSARY FACTS FOR T AXING THE SAME. IN OUR OPINION, THE AO HAS NOT DISCHARGED TH E ONUS IN THAT REGARD. THEREFORE, REVERSING THE ORDER OF THE FAA, WE DECIDE THE FIRST GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. 5. CONSIDERING THE DECISION OF TRIBUNAL IN ASSESSE ES OWN CASE FOR AY 2009-10, WHEN THE FACTS FOR THE YEAR UNDER CONSI DERATION ARE ALSO SIMILAR. THEREFORE, KEEPING IN VIEW THE PRINCIPAL OF CONSISTENCY THIS GROUND OF APPEAL IS ALLOW IN FAVOUR OF ASSESSEE. 6. GROUND NO. 2 RELATES TO ADDITION OF RS. 12,500/ - UNDER SECTION 14A READ WITH RULE 8D. WE HAVE SEEN THAT SIMILAR A DDITION WAS MADE AGAINST THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 AN D THE ASSESSEE FILE APPEAL BEFORE THE TRIBUNAL AND THE FOLLOWING O RDER WAS PASSED ITA NO. 7605/M/2012 VIDE ORDER DATED 06/01/2017. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THE ASSESSEE HAD NOT INCURRED ANY EXPENDITURE NOR HAD IT CLAIMED ANY EXPENDITURE WITH REGARD TO THE TAX-FREE INCOME DURING THE YEAR UNDER CONSIDERATION. THEREFORE, THERE WAS NO JUSTIFICATI ON OF ANY KIND TO MAKE ANY DISALLOWANCE INVOKING THE PROVISIONS OF SECTION 14A OF THE ACT. THE BASIC PRECONDITION FOR MAKING DISAL LOWANCE UNDER THE SAID SECTION IS EARNING OF TAX-FREE INCOME AND INCURRING OF EXPENDITURE BY THE ASSESSEE. AS BOTH THE PRECONDIT IONS ARE ABSENT IN THE CASE UNDER CONSIDERATION THEREFORE, I N OUR OPINION, THE ORDER OF THE FAA HAS TO BE REVERSED. GROUND NU MBER TWO IS DECIDED IN FAVOUR OF THE ASSESSEE. 7. CONSIDERING THE FINDINGS OF THE TRIBUNAL IN ASS ESSEES OWN CASE FOR ASSESSMENT YEAR 2009-10, WE FIND THAT THE GROUN D OF APPEAL RAISED BY ASSESSEE IN THE PRESENT APPEAL IS SQUARELY COVER ED IN FAVOUR OF ITA NO.3459/M/2014 MUCHHALA MAGIC LAND 4 ASSESSEE AS THE FACTS OF THIS YEAR ARE ALSO NOT AT VARIANCE, HENCE THIS GROUND OF APPEAL IS ALLOW IN FAVOUR OF THE ASSESSEE . 8. GROUND NO. 3 RELATES THE CONFIRMING THE ADDITIO N OF RS. 17,500/- ON ACCOUNT OF PAYMENT TO TRAFFIC POLICE FO R POLICE ARRANGEMENTS (BANDOBAST). THE LD. AR OF THE ASSESSE E ARGUED THAT THE ASSESSEE IS MANAGING A WATER PART AT THANE AND AT T HE TIME OF FUNCTIONS ON NEW YEARS CELEBRATION, ANNUAL FUNCTIO N THE POLICE ARRANGEMENTS ARE MADE TO MANAGE THE PUBLIC AND CERT AIN PAYMENTS WERE MADE TO THE TRAFFIC POLICE. SUCH PAYMENTS ARE MADE FOR THE PURPOSE OF BUSINESS. THUS, THE EXPENSES ARE ALLOWAB LE EXPENSES UNDER SECTION 37 OF THE ACT. ON THE OTHER HAND LD. DR FOR THE REVENUE ARGUED THAT THE ASSESSEE HAS NOT PROVED THA T THE EXPENSES WERE MADE FOR BUSINESS EXPEDIENCIES. THE ASSESSEE H AS NOT FILED ANY EVIDENCES TO SUBSTANTIATE ITS CONTENTION. 9. WE HAVE CONSIDERED THE RIVAL CONTENTION OF PARTI ES AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE AS SESSING OFFICER WHILE FRAMING ASSESSMENT NOTICED THAT IN THE LEDGER ACCOUNT THE ASSESSEE HAS CLAIMED RS. 17,500/- PAID TO TRAFFIC P OLICE FOR TRAFFIC POLICE EXPENSES. THE ASSESSING OFFICER OBSERVED TH AT PAYMENT MADE TO TRAFFIC POLICE ARE NOT WHOLLY AND EXCLUSIVELY FO R THE PURPOSE OF BUSINESS OF THE ASSESSEE DISALLOW THE SAME. THE LD . CIT(A)DURING THE FIRST APPELLATE PROCEEDINGS CONFIRMED THE ACTION OF ASSESSING OFFICER HOLDING THAT THE ADDITION MADE BY THE ASSESSING OFF ICER ARE PASSED ON SOUND PRINCIPLES THAT ONLY EXPENSES ALLOWABLE, WHIC H ARE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. MAKING OF ITA NO.3459/M/2014 MUCHHALA MAGIC LAND 5 PAYMENT TO POLICE FOR DAY-TO-DAY ROUTINE WORK IS NO T FOR THE PURPOSE OF ASSESSEE BUSINESS AND THEREFORE, CANNOT BE ALLOWED AS PER THE PROVISION OF SECTION 37. WE HAVE SEEN THAT THE ASS ESSEE HAS NOT FILED ANY RECEIPT OF PAYMENT ON RECORD TO SUBSTANTIATE HI S CLAIM. THE ASSESSEE IS CLAIMING THAT RS. 17,500/- WERE PAID TO TRAFFIC POLICE FOR TRAFFIC POLICE EXPENSES. THE CONTENTION OF ASSESSE E ARE VAGUE EVEN DURING THE SUBMISSION OF THE LD. AR OF THE ASSESSEE COULD NOT SUBSTANTIATE UNDER WHICH PROVISION THE SAID EXPENSE S WERE PAID TO THE TRAFFIC POLICE. IT IS NOT THE CONTENTION OF LD. AR OF THE ASSESSEE THAT THE SAID EXPENSES WERE DEPOSITED WITH THE ACCOUNT O F TRAFFIC POLICE FOR MAKING THE NECESSARY ARRANGEMENTS AT THE WATER PARK OR THE PAYMENT WAS MADE AS STATUTORY EXPANSES. THE ASSESSEE HAS FA ILED TO SUBSTANTIATE ITS CONTENTION THAT THE EXPENSES WERE PAID WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE HONBL E KARNATAKA HIGH COURT IN CIT VS NEELAVATHI & OTHERS (2010) 322 ITR 643(KAR) HELD THAT PAYMENTS MADE TO POLICE OR ROWDIES TO KEEP AWAY FRO M THE BUSINESS PREMISES IS NOT ALLOWABLE AS BUSINESS EXPENSES. TH US, WE DID NOT FIND ANY ILLEGALITY OR INFIRMITY IN THE ORDER OF LD. CIT (A) HENCE, THIS GROUND OF APPEAL IS DISMISSED. 10. GROUND NO. 4 RELATES TO CONFIRMING THE ADDITIO N OF RS. 45,411/- DUE TO NON-DEDUCTION OF TDS ON INTEREST PAID ON CAR LOAN. WE HAVE SEEN THAT SIMILAR DISALLOWANCE WAS MADE AGAINST THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 AND ON APPEAL BEFORE TRIBUN AL THE IDENTICAL GROUND WAS RESTORED TO THE FILE OF ASSESSING OFFICE R FOR MAKING VERIFICATION. THE TRIBUNAL PASSED THE FOLLOWING ORD ER; ITA NO.3459/M/2014 MUCHHALA MAGIC LAND 6 NEXT GROUND IS ABOUT ADDITION OF RS. 79,722/- FO R NON-DEDUCTION OF TAX ON PAYMENT OF INTEREST ON CAR LOAN TO MAHIND RA AND MAHINDRA FINANCE COMPANY LTD. FOLLOWING OUR ORDER FOR THE EARLIER GROUND, WE RESTORE BACK THE ISSUE TO THE FI LE OF THE ASSESSING OFFICER FOR MAKING VERIFICATION, THAT THE RECIPIENT OF THE INCOME HAD PAID TAX ON THE DISPUTED AMOUNT. THE AS SESSEE WOULD PRODUCE RELEVANT DOCUMENTS BEFORE THE ASSESSI NG OFFICER. GROUND NUMBER FOUR IS PARTLY ALLOWED. 11. CONSIDERING THE DECISION OF EARLIER YEAR IN AS SESSEES OWN CASE, THIS GROUND OF APPEAL IS ALSO RESTORED TO THE FILE OF ASSESSING OFFICER TO DECIDE THE FRESH IN ACCORDANCE WITH THE DIRECTION I N ORDER DATED 06/01/2017 IN ITA NO. 6705/M/2012.THUS, THIS GROUND OF APPEAL IS ALLOWED OF STATISTICAL PURPOSE. 12. GROUND NO. 5 RELATES TO CONFIRMING THE DISALLOW ANCE OF RS.1,17,060/- UNDER SECTION 40A(3) OF THE ACT FOR P URCHASE OF DIESEL IN CASH. THE LD. AR OF ASSESSEE ARGUED THAT ASSESSEE I S RUNNING THE WATER PARK IN THANE. IN THE SAID AREA THERE IS FREQ UENT POWER CUT AND IN ORDER TO MAINTAIN BACK UP AND TO RUN THE WATER S LIDES CONTINUOUSLY THE ASSESSEE PURCHASE DIESEL FOR THEIR GENERATORS A S AND WHEN REQUIRED. THE ASSESSEE PURCHASES THE FUEL OF LESS THAN RS. 20,000/- AT A TIME. AT NO POINT OF TIME THE PURCHASE OF FUE L EXCEEDS THE AMOUNT OF RS. 20,000/- ON ONE TIME. THE LD. AR OF ASSESSE E SUBMITTED THAT THE RECEIPTS OF FUEL ARE AVAILABLE AT PAGE NUMBER 6 6 TO 69 OF THE PAPER BOOK. ON THE OTHER HAND THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF THE AUTHORITIES BELOW AND ARGUED THAT AFTE R THE AMENDMENT IN THE RELEVANT SECTION [40A(3)] BY FINANCE ACT W.E.F. 01.04.2009 THE WORD OR AGGREGATE OF PAYMENTS MADE TO A PERSON IN A DAY, OTHERWISE THAN BY ACCOUNT PAYEE CHEQUE DROWN ON A BANKER ACCO UNT PAYEE ITA NO.3459/M/2014 MUCHHALA MAGIC LAND 7 DRAFT, EXCEEDS TWENTY THOUSAND RUPEE HAS BEEN BROU GHT IN THE STATUE BOOK. 13. WE HAVE CONSIDER THE CONTENTION OF BOTH THE PA RTIES HAVE GONE THROUGH THE ORDER OF AUTHORITIES BELOW. THE ASSESS ING OFFICER WHILE FRAMING ASSESSMENT NOTICED THAT ASSESSEE CLAIMED FU EL AND GENERATORS EXPENSES OF RS. 7,39,872/-. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF FUEL EXPENSES FOR THE PERIOD FROM 01/04/ 2009 TO 31/03/2010. THE ASSESSEE FURNISHED THE DETAILS OF FUEL EXPENSES. FROM THE DETAILS THE ASSESSING OFFICER OBSERVED THA T THE ASSESSEE MADE THE FUEL EXPENSES IN CASH EXCEEDING RS. 20,000 /- TO M/S. KAILASH SERVICE STATION ON A SINGLE DAY. FROM THE DETAILS FURNISHED TO ASSESSING OFFICER, THE ASSESSING OFFICER NOTICED TH AT ASSESSEE PURCHASED FUEL OF RS. 28,808/- ON DATED 02/05/2009, RS. 28,808/- ON DATED 03/05/2009,RS. 28,808/- ON DATED 05/05/200 9 AND RS. 30,736/- ON DATED 26/02/2010. THUS, THE ASSESS MADE THE PURCHASE OF RS. 1,17,160/- WHICH IS NOT IN CONFORMITY WITH T HE PROVISION OF SECTION 40A(3) OF THE ACT. THE ASSESSING OFFICER BE FORE MAKING DISALLOWANCE, RECORDED IN ITS ORDER THAT THE ASSESS EE HAS AGREED FOR THE DISALLOWANCE OF THE AGGREGATE AMOUNT OF RS. 1,1 7,160/- UNDER SECTION 40A (3). ON APPEAL BEFORE CIT(A), THE DISA LLOWANCE WAS CONFIRMED HOLDING THAT SUCH PAYMENT WERE MADE IN CA SH TO M/S KAILASH SERVICE STATION AND NO EXPENSES ARE ALLOWAB LE AS EXPENDITURE INCURRED IN CASH ON A SINGLE DAY. THE LD CIT(A) FU RTHER CONCLUDED THAT THE ASSESSEE HAS NOT FURNISHED ANY DETAILS TO SHOW THAT THIS EXPENDITURE IS COVERED UNDER EXCEPTIONS LAID DOWN A S PER RULE 6DD. ITA NO.3459/M/2014 MUCHHALA MAGIC LAND 8 WE HAVE SEEN THE COPY OF RECEIPT PLACED ON RECORD A T PAGE NUMBER 66- 69 THAT CONSIST OF RECEIPTS ARE AS BELOW: SR.NO. DATE RS. RECEIPT NO. 1. 02/05/2009 14,404.00 63110 2. 02/05/2009 14,404.00 63174 3. 03/05/2009 14,404.00 63352 4. 03/05/2009 14,404.00 63345 5. 05/06/2009 14,404.00 83091 6. 05/06/2009 14,404.00 83103 7. 26/02/2010 15,368.00 38637 8. 26/02/2010 15,368.00 38629 TOTAL 1,17,160.00/- WE HAVE SEEN THAT THOUGH NONE OF THE RECEIPT IS EXC EEDED RS. 20,000/- AT ONE TIME, YET THE ASSESSEE MADE AGGREGA TE PURCHASES OF MORE THAN RS. 20,000/- IN CASH IN A DAY, ON FOUR OC CASIONS WHICH IS PROHIBITED BY SECTION 40A(3) OF THE ACT. THOUGH, TH E IDENTITY AND THE PAYMENTS MADE TO THE PARTY ARE NOT IN DISPUTE. AFT ER THE AMENDMENT IN SECTION 40A(3) W.E.F. 01.04.2009, SUCH EXPENSES ARE ALLOWABLE ONLY IF COVERED BY THE EXCEPTION OTHERWISE PROVIDED UNDE R RULE 6DD OF INCOME TAX RULE 1962. THE ASSESSEE HAS NOT PLEADED ANY OF THE EXCEPTIONS PROVIDED UNDER RULE 6DD. ON CAREFUL REA DING OF RULE 6DD WE DO NOT FIND ANY EXCEPTION WHICH MAY COME IN RESC UE OF THE ASSESSEE. THUS, THIS GROUND OF APPEAL RAISED BY ASS ESSEE IS DISMISSED. 14. GROUND NO. 6 RELATES TO CONFIRMING THE DISALLOW ANCE OF RS. 1,23,517/- FOR BUSINESS PROMOTION EXPENSES. 15. WE HAVE SEEN THAT SIMILAR DISALLOWANCE WAS MADE AGAINST THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 ON AD HOC BASI S, WHICH WERE CONFIRMED BY LD CIT(A). ON APPEAL BY ASSESSEE BEFOR E TRIBUNAL THE FOLLOWING ORDER WAS PASSED. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL BEFORE US. WE FIND THAT THE AO HAD HELD THAT ASSES SE HAD INCURRED AN EXPENDITURE OF RS. 8.31 LAKHS THROUGH C REDIT CARDS, THE AO DID NOT CALL FOR ANY DETAILS IN THAT REGARD, THAT HE HAD MADE AN AD HOC DISALLOWANCE AT THE RATE OF 20%, THA T THE FAA ITA NO.3459/M/2014 MUCHHALA MAGIC LAND 9 HAD CONFIRMED HIS ORDER. IN OUR OPINION IN CASE OF CORPORATE ASSESSEE DISALLOWANCE ON ACCOUNT OF PERSONAL ELEMEN T CAN BE MADE ONLY IF THE EXPENDITURE INCURRED WAS FOR THE P ERSONAL USE OF ANY OF THE DIRECTORS / EMPLOYEE AND THAT EXPENDITUR E DID NOT HAVE ANY RELATION WITH THE CARRYING OUT OF THE BUSI NESS. WE DONT FIND THAT AO / FAA HAD CARRIED OUT ANY SUCH EXERCIS E. IF THE AO HAD ANY DOUBT, IT WAS HIS DUTY TO MAKE FURTHER INVE STIGATION AND PINPOINT THE ACTUAL EXPENDITURE NOT INCURRED FOR TH E BUSINESS OF THE ASSESSEE. IN THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT MAKING AND UPHOLDING THE DISALLOWANCE WAS NOT JUSTI FIABLE. REVERSING THE ORDER OF THE FAA, WE DECIDE THE LAST GROUND IN FAVOUR OF THE ASSESSEE. 16. CONSIDERING THE DECISION OF EARLIER YEAR IN TH E ASSESSEE OWN CASE AND WE FIND THAT THE SIMILAR AD HOC DISALLOWANCE WA S DELETED BY TRIBUNAL FOR AY 2009-10. THUS, RESPECTFULLY FOLLOWI NG THE DECISION OF COORDINATE BENCH IN EARLIER YEAR THIS GROUND OF APP EAL IS ALLOWED IN FAVOUR OF ASSESSEE. 17. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26 TH DAY OF MAY 2017. S D / - (G.S. PANNU) S D / - (PAWAN SINGH) / ACCOUNTANT MEMBER /JUDICIALMEMBER MUMBAI; DATED : 26/05/2017 RAHUL DHOKE , P.S/. .. !' #$%&%'# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A)- , MUMBAI 5. #$% &' , &' ) , / DR, ITAT, MUMBAI 6. %*+ , / GUARD FILE. / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI