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TMI Blog2019 (10) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 2. On the other hand, the ld. D/R has submitted that the Tribunal has decided the issue after considering all the facts as well as 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 careful perusal of the material on record, we find that the assessee in the Miscellaneous Application is seeking modification of the findings/decision taken by the Tribunal on the issue of reopening of the assessment. The Tribunal has considered this issue in para 4 as under :- "4. We have considered the rival submissions as well as relevant material on record. There is no dispute that the original assessment was completed U/s 143(3) on 20.02.2014 thereafter there was audit objection dated 26.06.2015 wherein it was pointed out that the assessee has incurred expenditure of Dish Installation charges and taxi fare payment in cash. Thus, it was pointed out that as per ledger details the payments made in cash to various persons exceeds Rs. 20,000/- which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each case. Therefore the reopening is based on the facts in respect of the 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 considered the facts regarding the violation of provisions of Section 40A(3) of the Act while recording reasons for reopening. Hence, we find that 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 Section 40A(3) of the Act were pointed out by the audit party which was considered 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 assessee being ledger account. Though the Assessing Officer has already completed the assessment U/s 143(3) on 20.02.2014 however, while completing the assessment U/s 143(3) of the Act the Assessing Officer had taken up various issue for scrutiny and conducted enquiry but he has not taken up the issue of allowability of the expenditure incurred by the assessee in cash and particularly the issue of violation of provisions of Section 40A(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regarding ground no. 1. 4. The assessee has also raised a question in respect 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 the business of the assessee. The ld. A/R has submitted that neither the AO nor the ld. 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 generated any income from dish installation activity and, therefore, the expenditure incurred in respect of dish installation cannot be considered as essential or inevitable 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted in these payments which stipulates the expenditure incurred in cash and aggregate of payment made by the assessee is exceeding Rs. 20,000/- other than through account payee cheque or account payee bank draft. Therefore, the details recorded by the AO are factually correct as each payment represent each 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 of the assessee, we find that the taxi fare and dish installation charges are not inevitable or essential expenditure in respect of the business of the assessee as there are various means of transport conveyance and therefore, it is always a question of genuineness and correctness of the claim. Once the AO has invoked the provisions of Sections 40A(3) of the Act and the expenditure incurred by the assessee and payment made in cash is of such nature that cannot be regarded as inevitable or essential to the business activity of the assessee then, the decision of this Tribunal will not help the case of the assessee. As regard dish installation charges though the assessee has claimed the said expenditure and the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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