SHRI JITENDRA KUMAR GUPTA, BHARATPUR V. INCOME TAX OFFICER, WARD-2, BHARATPUR

MA 33/JPR/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4617 (ITAT-JAIPUR)
• Duration Of Justice: 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 29-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH CIT DHK
• Keywords: Rectification of order; Audit objection; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Set aside
• Section: 40A(3); 143(3); 254(2); 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM M.A. NO. 33/JP/2019 ( ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 946/JP/2018) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12. SHRI JITENDRA KUMAR GUPTA, PROP. M/S. J.K. ENTERPRISES, CHOBURJA BAZAR, OLD HOSPITAL ROAD, BHARATPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 2, BHARATPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHBPG 8155 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJENDRA AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI JAI SINGH (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17.05.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 20/05/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESS EE IS SEEKING RECTIFICATION OF MISTAKES IN THE ORDER OF THE TRIBUNAL DATED 26.0 2.2019. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE CHALLENGED THE VALIDITY OF REOPENING ON THE GROUND THAT THE 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) IS NOTHI NG BUT BASED ON CHANGE OF OPINION. EVEN OTHERWISE, THE REOPENING WAS BASED ON THE AUDIT OBJECTION AND NOT ON THE BASIS OF AOS OWN INDEPENDENT OPINION. THE TRIBUNAL HAS REJECTED THE 2 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. GROUND NO. 1 OF THE ASSESSEE ON THIS ISSUE WITHOUT APPRECIATING THE DECISIONS RELIED UPON BY THE ASSESSEE. 2. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE TRIBUNAL HAS DECIDED THE ISSUE AFTER CONSIDERING ALL THE FACTS AS WELL A S THE RELEVANT LAWS ON THE POINT. EVEN THE DECISIONS RELIED UPON BY THE ASSESSEE WERE ALSO CONSIDERED BY THE TRIBUNAL, THEREFORE, THE DECISION ON THE MERITS OF THE ISSUE CANNOT BE REVIEWED OR REVISED IN THE PROCEEDINGS UNDER SECTION 254(2) OF THE IT ACT. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE IN THE MISCELLANE OUS APPLICATION IS SEEKING MODIFICATION OF THE FINDINGS/DECISION TAKEN BY THE TRIBUNAL ON THE ISSUE OF REOPENING OF THE ASSESSMENT. THE TRIBUNAL HAS CONSIDERED THI S ISSUE IN PARA 4 AS UNDER :- 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WE LL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE OR IGINAL ASSESSMENT WAS COMPLETED U/S 143(3) ON 20.02.2014 THEREAFTER T HERE WAS AUDIT OBJECTION DATED 26.06.2015 WHEREIN IT WAS POINTED O UT THAT THE ASSESSEE HAS INCURRED EXPENDITURE OF DISH INSTALLAT ION CHARGES AND TAXI FARE PAYMENT IN CASH. THUS, IT WAS POINTED OUT THAT AS PER LEDGER DETAILS THE PAYMENTS MADE IN CASH TO VARIOUS PERSON S EXCEEDS RS. 20,000/- WHICH IS NOT ALLOWABILITY BY VIRTUE OF SEC TION 40A(3) OF THE ACT. PURSUANT TO THE SAID AUDIT OBJECTION THE AO RE OPENED THE ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE ACT ON 08.09.2015 BY RECORDING THE REASONS AS UNDER:- THE ASSESSEE WAS ENGAGED IN WHOLESALE AND RETAIL T RADING OF RECHARGE COUPONS AND MOBILE SETS IN THE PROPRIETARY CONCERN IN THE NAME AND STYLE OF M/S J K ENTERPRISE. 3 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. ON PERUSAL OF RECORD OF THE ASSESSEE, IT IS OBSERVE D THAT ASSESSEE HAD INCURRED EXPENDITURE ON DISH INSTALLAT ION CHARGES AND TAXI FARE DURING THE FINANCIAL YEAR 2010-11 REL EVANT TO THE ASSESSMENT YEAR 2011-12 AND PAYMENTS WERE MADE IN C ASH. THE DETAILS AVAILABLE ON RECORD OF THE ASSESSEE IN RESPECT OF PAYMENTS MADE IN CASH EXCEEDING TWENTY THOUSAND TO A PERSON IN A SINGLE DAY ARE AS UNDER:- TAXI FARE DISH INSTALLATION CHARGES S.NO. DATE AMOUNT S.NO. DATE AMOUNT 1 15.04.2010 RS. 22500 1 31.05.2010 RS. 28000 2 30.04.2010 RS. 22500 2 31.07.2010 RS. 28000 3 30.06.2010 RS. 22500 3 31.08.2010 RS. 36400 4 30.06.2010 RS. 22500 4 31.01.2001 RS. 40500 5 31.08.2010 RS. 22500 TOTAL RS. 132900 6 AUG-10 RS. 22500 7 OCT-10 RS. 45000 8 30.11.2010 RS. 45000 9 JAN-11 RS. 45000 TOTAL RS. 270000 AS PER PROVISIONS OF SECTION 40A(3) OF THE ACT WHER E THE ASSESSEE INCURS ANY EXPENDITURE IN RESPECT OF WHICH A PAYMENT OR AGGREGATE OF PAYMENTS MADE TO A PERSON IN A DAY OTHERWISE THAN BY AN A/C PAYEE CHEQUE DRAWN ON A BANK OR ACCO UNT PAYEE DRAFT, EXCEEDS TWENTY THOUSAND RUPEES NO DEDUCTION SHALL BE ALLOWED IN RESPECT OF SUCH EXPENDITURE. IN THIS CAS E, THE ASSESSEE HAS VIOLATED PROVISIONS OF SECTION 40A(3) OF THE ACT. THE ASSESSEE HIMSELF DID NOT DISALLOW SUCH EXPENDIT URE AND ADDED TO THE TOTAL INCOME FOR THE YEAR UNDER CONSID ERATION. I HAVE, THEREFORE, REASON TO BELIEVE THAT THE INCOME TO THE EXTENT OF RS. 4,02,900/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE IT ACT, 1961 FOR THE ASSESSMENT YEAR 2011- 12. THEREFORE, IT IS A FIT CASE TO ISSUE NOTICE U/S 148 OF THE IT ACT, 1961. FROM THE REASONS RECORDED BY THE AO IT IS A CLEAR C ASE THAT THE ASSESSING OFFICER HAS CONSIDERED THE DETAILS OF THE EXPENDITURE INCURRED BY THE ASSESSEE IN CASH WHICH EXCEEDS RS. 20,000/- IN EACH CASE. THEREFORE THE REOPENING IS BASED ON THE FACTS IN RESPECT OF THE 4 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. EXPENDITURE INCURRED IN CASH AND THE PAYMENTS MADE IN CASH WERE EXCEEDING RS. 20,000/- AND HENCE, IT IS NOT A CASE OF REOPENING BASED ON THE OPINION OF THE AUDIT PARTY. BUT THE AO HAS C ONSIDERED THE FACTS REGARDING THE VIOLATION OF PROVISIONS OF SECTION 40 A(3) OF THE ACT WHILE RECORDING REASONS FOR REOPENING. HENCE, WE FIND THA T IT IS NOT A CASE OF REOPENING PURELY BASED ON THE OPINION OF THE AUDIT PARTY BUT THE RELEVANT FACTS PERTAINING TO THE VIOLATION OF SECTI ON 40A(3) OF THE ACT WERE POINTED OUT BY THE AUDIT PARTY WHICH WAS CONSI DERED BY THE AO. IT IS ALSO NOT IN DISPUTE THE FACTS AS POINTED OUT BY THE AUDIT PARTY ARE NOT IN DISPUTE AND ARE PART OF THE BOOKS OF THE ASS ESSEE BEING LEDGER ACCOUNT. THOUGH THE ASSESSING OFFICER HAS ALREADY C OMPLETED THE ASSESSMENT U/S 143(3) ON 20.02.2014 HOWEVER, WHILE COMPLETING THE ASSESSMENT U/S 143(3) OF THE ACT THE ASSESSING OFFI CER HAD TAKEN UP VARIOUS ISSUE FOR SCRUTINY AND CONDUCTED ENQUIRY BU T HE HAS NOT TAKEN UP THE ISSUE OF ALLOWABILITY OF THE EXPENDITURE INC URRED BY THE ASSESSEE IN CASH AND PARTICULARLY THE ISSUE OF VIOLATION OF PROVISIONS OF SECTION 40A(3) OF THE ACT. THE AO EVEN NOT RAISED ANY QUER Y ON THIS ISSUE OF VIOLATION OF PROVISIONS OF SECTION 40A(3) OF THE AC T. THEREFORE, IT IS MANIFEST FROM THE RECORD THAT THE AO EVEN DID NOT T AKE UP THE SAID ISSUE FOR EXAMINATION HENCE, QUESTION OF TAKING A D ECISION OR EXPRESSING ANY OPINION ON THE SAID ISSUE DOES NOT A RISE. IT IS NOT A MATTER OF DISCRETION OF AO BUT IT IS A MANDATORY PR OVISIONS OF LAW TO CONSIDER BY AO. HENCE, WHEN THE AO HAS NOT TAKEN UP THE SAID ISSUE IN THE ASSESSMENT PASSED U/S 143(3) OF THE ACT AND THE REOPENING IS PURELY BASED ON THE FACTS THEN, THOSE RELEVANT FACT S AS POINTED OUT BY THE AUDIT PARTY CONSTITUTE A TANGIBLE MATERIAL FOR FORMING THE OPINION THAT THE INCOME ASSESSABLE TO TAX, TO THE EXTENT OF ALLOWABILITY CLAIM OF THE ASSESSEE WHICH IS IN VIOLATION OF PROVISIONS OF SECTION 40A(3) OF THE ACT, HAS ESCAPED ASSESSMENT. THERE IS NO QUARREL TH AT AT THE TIME OF REOPENING OF THE ASSESSMENT THE CORRECTNESS OF THE MATERIAL AND SUFFICIENCY OF THE REASONS TO BELIEVE THAT THE INCO ME ASSESSABLE TO TAX 5 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. CANNOT BE REQUIRED TO BE ESTABLISHED BY THE AO. ACC ORDINGLY, WE FIND THAT WHEN THE REOPENING IS WITHIN 4 YEARS FROM THE END OF THE ASSESSMENT YEAR UNDER CONSIDERATION THEN, THE PROVI SO TO SECTION 147 IS NOT ATTRACTED IN THE CASE OF THE ASSESSEE. HENCE , WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE REOPENING OF THE ASSESSM ENT BY THE AO IN THE ASSESSMENT YEAR 2011-12. THEREFORE, ALL THE CONTENTIONS OF THE ASSESSEE AS W ELL AS THE DECISIONS RELIED UPON BY THE LD. A/R OF THE ASSESSEE WERE CONSIDERED BY THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER. THE TRIBUNAL HAS SPECIFICALLY DISC USSED THE RELEVANT FACTS PERTAINING TO THE VIOLATION OF SECTION 40A(3) OF TH E ACT WHICH WERE POINTED OUT BY THE AUDIT PARTY. THEREFORE, THE 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 FA CT OF VIOLATION OF PROVISIONS OF SECTION 40A(3) WHEN THE ASSESSEE HAS MADE THE PAYME NT IN CASH EXCEEDING THE MINIMUM LIMIT AS PROVIDED UNDER SECTION 40A(3) OF T HE ACT. 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 TH AT THE REOPENING WAS VALID. THE DECISION TAKEN BY THE TRIBUNAL ON MERITS OF THE CAS E CANNOT BE REVERSED IN THE PROCEEDINGS UNDER SECTION 254(2) OF THE ACT BY RE-A PPRECIATING THE SAME FACTS AND DECISIONS RELIED UPON BY THE LD. A/R OF THE ASSESSE E. THEREFORE, THE ASSESSEE HAS NOT POINTED OUT ANY APPARENT MISTAKE IN THE ORDER O F 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 REGARDING GROUND NO. 1. 6 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. 4. THE ASSESSEE HAS ALSO RAISED A QUESTION IN RESPE CT OF GROUND NO. 2 REGARDING THE OBSERVATION OF THE TRIBUNAL THAT TAXI FARE AND DISH INSTALLATION CHARGES ARE NOT INEVITABLE OR ESSENTIAL EXPENDITURE IN RESPECT OF T HE BUSINESS OF THE ASSESSEE. THE LD. A/R HAS SUBMITTED THAT NEITHER THE AO NOR THE L D. CIT (A) HAS RAISED ANY SUCH QUESTION OF GENUINENESS OF THE EXPENDITURE INCURRED BY THE ASSESSEE. FURTHER, THE TRIBUNAL HAS OBSERVED THAT THE ASSESSEE HAS NOT GEN ERATED ANY INCOME FROM DISH INSTALLATION ACTIVITY AND, THEREFORE, THE EXPENDITU RE INCURRED IN RESPECT OF DISH INSTALLATION CANNOT BE CONSIDERED AS ESSENTIAL OR I NEVITABLE FOR THE PURPOSES OF BUSINESS OF THE ASSESSEE. HE HAS POINTED OUT THAT THE ASSESSEE HAS CLAIMED THE EXPENDITURE ON ACCOUNT OF DISH INSTALLATION CHARGES WHICH WAS NOT QUESTIONED BY THE AO AS WELL AS BY THE LD. CIT (A) BUT THE DISALLOWAN CE WAS MADE BY THE AO ONLY BY INVOKING THE PROVISIONS OF SECTION 40A(3) OF THE AC T. THEREFORE, THE SAID OBSERVATION OF THE TRIBUNAL IS CONTRARY TO THE RECORD THAT THE ACTIVITY OF DISH INSTALLATION IS NOT PART OF THE REGULAR BUSINESS OF THE ASSESSEE BUT IT IS AN ADDITIONAL ACTIVITY UNDERTAKEN BY THE ASSESSEE. THE LD. A/R HAS ALSO R EFERRED TO THE PROFIT & LOSS ACCOUNT AND SUBMITTED THAT THE ASSESSEE HAS SHOWN T HE INCOME FROM ACTIVATION CHARGES HENCE THERE IS INCOME FROM THE ACTIVITY OF DISH INSTALLATION. 5. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE TRIBUNAL HAS DISCUSSED ALL THE RELEVANT FACTS AND THEN DECIDED THE ISSUE O N MERITS. THEREFORE, THERE IS NO APPARENT ERROR IN THE ORDER OF THE TRIBUNAL WHICH C AN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. 7 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE TRIBUNAL HAS DECIDED THIS ISSUE IN PARA 7 & 8 OF THE IMPUGNED ORDER AS UNDER :- 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. THE AO AS NOTED THAT THE ASSESS EE HAS PAID A TOTAL AMOUNT OF RS. 4,02,900/- IN CASH IN VIOLATION OF PR OVISIONS OF SECTION 40A(3) OF THE ACT. THE DETAILS OF THE SAID PAYMENT OF THE EXPENDITURE ARE AS UNDER:- TAXI FARE DISH INSTALLATION CHARGES S.NO. DATE AMOUNT S.NO. DATE AMOUNT 1 15.04.2010 RS. 22500 1 31.05.2010 RS. 28000 2 30.04.2010 RS. 22500 2 31.07.2010 RS. 28000 3 30.06.2010 RS. 22500 3 31.08.2010 RS. 36400 4 30.06.2010 RS. 22500 4 31.01.2001 RS. 40500 5 31.08.2010 RS. 22500 TOTAL RS. 132900 6 AUG-10 RS. 22500 7 OCT-10 RS. 45000 8 30.11.2010 RS. 45000 9 JAN-11 RS. 45000 TOTAL RS. 270000 AFTER CAREFUL PERUSAL OF THE RECORD, WE FIND THAT E ACH AMOUNT GIVEN IN THE TABLE ABOVE REPRESENT AN INDIVIDUAL BILL RAISED BY THE RECIPIENT. THEREFORE, THESE PAYMENTS ARE AGAINST EACH BILL AND NOT THE AGGREGATION OF VARIOUS BILLS PAID BY THE ASSESSEE. THESE ARE INDIVIDUAL TRANSACTIONS FOR WHICH SEPARATE BILLS WERE RAISED T HOUGH THE BILLS WERE RAISED FOR THE SERVICE RENDERED BY THE RECIPIENT FO R SPAN OF PERIOD AND NOT FOR SINGLE DAY. THEREFORE, THE PROVISIONS OF SE CTION 40A(3) OF THE ACT ARE ATTRACTED IN THESE PAYMENTS WHICH STIPULATE S THE EXPENDITURE INCURRED IN CASH AND AGGREGATE OF PAYMENT MADE BY T HE ASSESSEE IS EXCEEDING RS. 20,000/- OTHER THAN THROUGH ACCOUNT P AYEE CHEQUE OR ACCOUNT PAYEE BANK DRAFT. THEREFORE, THE DETAILS RE CORDED BY THE AO 8 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. ARE FACTUALLY CORRECT AS EACH PAYMENT REPRESENT EAC H BILL TO EACH PARTY. HENCE, THE SAID EXPENDITURE IS NOT ALLOWABLE UNDER THE PROVISIONS OF SECTION 40A(3) OF THE ACT. 8. AS REGARDS THE DECISION RELIED UPON THE LD. AR O F THE ASSESSEE, WE FIND THAT THE TAXI FARE AND DISH INSTALLATION CH ARGES ARE NOT INEVITABLE OR ESSENTIAL EXPENDITURE IN RESPECT OF T HE BUSINESS OF THE ASSESSEE AS THERE ARE VARIOUS MEANS OF TRANSPORT CO NVEYANCE AND THEREFORE, IT IS ALWAYS A QUESTION OF GENUINENESS A ND CORRECTNESS OF THE CLAIM. ONCE THE AO HAS INVOKED THE PROVISIONS OF SE CTIONS 40A(3) OF THE ACT AND THE EXPENDITURE INCURRED BY THE ASSESSE E AND PAYMENT MADE IN CASH IS OF SUCH NATURE THAT CANNOT BE REGAR DED AS INEVITABLE OR ESSENTIAL TO THE BUSINESS ACTIVITY OF THE ASSESSEE THEN, THE DECISION OF THIS TRIBUNAL WILL NOT HELP THE CASE OF THE ASSESSE E. AS REGARD DISH INSTALLATION CHARGES THOUGH THE ASSESSEE HAS CLAIME D THE SAID EXPENDITURE AND THE ASSESSING OFFICER HAS NOT MADE ANY DISALLOWANCE ON ACCOUNT OF GENUINENESS OF THE EXPENDITURE HOWEVE R, SINCE DISH INSTALLATION ARE NOT THE MAIN BUSINESS ACTIVITY OF THE ASSESSEE. AS THE ASSESSEE IS ONLY A DISTRIBUTOR OF MOBILE SIM CARD, THEREFORE, THE INSTALLATION OF DISH MAY BE AN ADDITIONAL ACTIVITY UNDERTAKEN BY THE ASSESSEE HOWEVER, ONCE THE SAID ACTIVITY IS NOT DIR ECTLY GENERATING THE REVENUE THEN, THE EXPENDITURE INCURRED BY THE ASSES SEE IN RESPECT OF SUCH ACTIVITY CANNOT BE REGARDED AS AN ESSENTIAL WH ICH CANNOT BE DISPUTED. HENCE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW IN MAKING THE DISALLOWANCE U/S 40A(3) OF THE ACT. 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 RS. 9 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. 20,000/- AND WAS REPRESENTED BY A SEPARATE BILL. TH EREFORE, TO THAT EXTENT THE EXPENDITURE WAS CLEARLY HIT BY THE PROVISIONS OF SE CTION 40A(3) OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY APPARENT ERROR IN T HE ORDER OF THE TRIBUNAL QUA THE DISALLOWANCE MADE UNDER SECTION 40A(3) ON ACCOUNT O F TAXI FARE. THE SECOND DISALLOWANCE WAS MADE IN RESPECT OF THE DISH INSTAL LATION CHARGES MADE IN CASH. TO THE EXTENT OF THE PAYMENT MADE IN CASH EXCEEDING RS . 20,000/-, OUR DECISION ON THIS ISSUE REGARDING TAXI FARE CHARGES IS APPLICABLE MUT ATIS MUTANDIS. HOWEVER, WE FIND THAT THE TRIBUNAL HAS OBSERVED THAT THE DISH INSTAL LATION 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 ACCOU NT NO SUCH INCOME IS SHOWN ON ACCOUNT OF DISH INSTALLATION ACTIVITY. HOWEVER, NO W THE LD. A/R HAS SUBMITTED THAT THE ACTIVATION CHARGES SHOWN IN THE PROFIT & LOSS A CCOUNT 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 CONC LUDING FINDING, THEREFORE, WE MODIFY OUR OBSERVATION IN PARA 8 OF THE IMPUGNED OR DER AS UNDER :- THE NATURE OF EXPENDITURE INCURRED BY THE ASSESSE E IN RESPECT OF THE DISH INSTALLATION CHARGES ARE REQUIRED TO BE VERIFI ED WHETHER THESE ARE INCURRED IN THE REMOTE AREAS AND PAID TO THE PERSON S NOT HAVING THE BANKING FACILITY, THEN TO THAT EXTENT THE EXPENDITU RE WILL NOT ATTRACT THE PROVISIONS OF SECTION 40A(3) OF THE ACT. FURTHER, THE FACT IS ALSO REQUIRED TO BE VERIFIED WHETHER ASSESSEE HAS GENERA TED ANY INCOME FROM THE ACTIVITY OF DISH INSTALLATION. THEREFORE, IN THE ABSENCE OF THE 10 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. RELEVANT DETAILS AS WELL AS FACTS ON THIS ISSUE, WE SET ASIDE THIS ISSUE TO THE RECORD OF THE AO TO VERIFY THE RELEVANT FACTS A S OBSERVED ABOVE AND THEN RE-ADJUDICATE THE ISSUE OF DISALLOWANCE OF DIS H INSTALLATION CHARGES UNDER SECTION 40A(3) OF THE ACT. 7. IN THE RESULT, MISCELLANEOUS APPLICATION IS PART LY ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 20/05/2 019. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 20/05/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI JITENDRA KUMAR GUPTA, BHARAT PUR. 2. THE RESPONDENT THE ITO, WARD -2 BHARATPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (MA NO. 33/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 11 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR. 12 MA NO. 33/JP/2019 SHRI JITENDRA KUMAR GUPTA, BHARATPUR.