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Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI
Before: SHRI R.C. SHARMA (AM) & SHRI RAM LAL NEGI (JM)
PER RAM LAL NEGI, JM This appeal has been filed by the revenue against the order dated 16.01.2017 passed by the Commissioner of Income Tax (Appeals)-38 (for short ‘the CIT(A), Mumbai, for the assessment year 2009-10, whereby the Ld. CIT(A) has partly allowed the appeal filed by the assessee against the assessment order passed u/s 143 (3) r.w.s 147 r.w.s. 263 of the Income Tax Act, 1961 (for short the ‘Act’).
Aggrieved by the order of Ld. CIT (Appeals), the revenue has preferred this appeal before the Tribunal on the following effective grounds:-
“On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in restricting the disallowance of rental expenses made by the AO as unexplained expenditure of Rs. 42,00,000/- to Rs. Assessment Year: 2009-10
5,00,000/- thereby granting the assessee a relief of Rs. 37,00,000/-.
On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in ignoring the fact that the assessee had incurred total cash expenses amounting to Rs. 56,38,196 during the year, including rent expenses of Rs. 42,00,000/- whereas cash withdrawals from banks were to the tune of Rs. 35,33,412/- only which corroborates the fact that the assessee had claimed bogus rent expenses to the tune of Rs. 18,11,579/- (cash expenses of Rs. 56,38,196 (less) cash withdrawal Rs. 35,33,412/- (less) cash in hand as on 31.03.2009 Rs. 2,93,205).”
On the facts and in the circumstances of the case and in law, the Ld. CIT (A) failed to appreciate that the AO had issued notices u/s 133(6) to all the 40 parties to verify the genuineness of rent expenses claimed, however, the notices could not be served on any of the 40 parties and the assessee also expressed his inability to produce these parties alongwith their copy of return, ledger account, bills raised and copy of bank statements.
On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in ignoring the fact that neither books of accounts nor supporting documentary evidences were furnished by the assessee to discharge the onus cast on him in terms of provisions of section 37(1) of the I.T. Act, 1961.”
This case was fixed for today for hearing. However, when the case was called out for hearing, none appeared on behalf of the respondent/assessee. We notice that the tax effect of the relief granted by the Ld. Commissioner of Income Tax (Appeals) is below Rs.20 lacs and as per the CBDT Circular No. 3/2018, F. No. 279/Misc.142/2007-ITJ (Pt) dated 11th July, 2018 issued by Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, Assessment Year: 2009-10
Government of India limit fixed by the CBDT for filing the appeal before the ITAT is 20 lacs.
The Ld. Departmental Representative (DR) fairly conceded that this appeal is not maintainable in light of the above said CBDT Circular. The Ld. DR also did not point out that this appeal falls in any of the exceptions carved out in the above said circular.
We have gone through the order of the Ld. Commissioner of Income Tax (Appeals) and the grounds of appeals. We find that the tax effect in the above referred appeal is less than Rs. 20 lacs. Accordingly, we dismiss the aforesaid appeal filed by the Revenue. In the result, the appeal by the Revenue is dismissed.
Order pronounced in the open court on 19th September, 2018. (R.C. SHARMA) JUDICIAL MEMBER म ुंबई Mumbai; दिन ुंक Dated: 19/09/2018
Alindra, PS
आदेश प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. Assessment Year: 2009-10
आदेशानुसार/ BY ORDER, सत्य दपि प्रदि //// उि/सहायक िंजीकार (Dy./Asstt.