AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (3) TMI 589
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....irmatory letters of the payees of the commission, their PANs and copies of ITRs as also bank statements containing the entries of commission paid having been filed, the appellant had discharged the initial onus to prove the genuineness of the transaction and identity of the persons to whom commission was paid. The approach of the authorities below holding otherwise on ground of non compliance of notices/summons by the payees is arbitrary and unsustainable. 3. The appellant craves leave to add, amend, modify or alter the grounds of appeal at the time of hearing of the appeal. 3. Despite notifying, neither any one appeared, nor any adjournment application has been filed on behalf of the assessee. On earlier date, i.e., 04.01.2021, also none appeared on behalf of the assessee, and therefore, the assessee was issued notice through registered post. It is seen from the record that this notice dated 04.01.2021 issued by the Registry for hearing on 01.03.2021 did not return back. Thus, it is assumed that this notice was duly served upon the assessee and no compliance has been made on the part of the assessee. In such circumstances, we feel it appropriate to decide the appeal ex-parte.....
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....sons along with their books of account. However, the assessee submitted that the payments to those persons were made by company through cheques, which were subjected to deduction of TDS and service tax. The assessee also filed copy of its bank account. On the request of the assessee, the Assessing Officer issued summons under Section 131 of the Act to all those persons, however, none appeared before him. In the circumstances, the learned Assessing Officer disallowed the commission claimed to have paid to those persons observing as under: "2.7 The assessee's submissions are considered on merits. However, the fresh submission of the assessee still does not address the remarks made in para 2.5 above. Further, in light of the assessee's request, summons u/s 131 were issued to all the above persons vide notices dated 15.3.2016. However, none appeared in response the summonses issues. In fact, the summonses issued to Sh. Anil Sharma and Ms. Mitali have been received back. Further, the director/s of M/s Goldmine Developers Pvt. Ltd did not appear in response to the summons issued but sent their reply dated 21.3.2016 through speed post. Therefore, the doubt that was cast on the i....
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....ducted therefrom. On being issued summons under section 131, none of said parties appeared. Even summons issued to Shri Anil Sharma and Ms. Mitali were received back. Thus, identity of payee of commission and genuineness of commission payment were not proved and accordingly, the Assessing Officer made addition of Rs. 48,07,109/- under section 69. Appellant submitted that activity was done with sub agents to whom commission paid for services. Appellant contended that provisions of section 69 deals with unexplained investment, hence, not applicable in instant case. In addition to it, since payment was made through cheques and TDS & service tax was deducted from payment of commission made, there was no doubt on source of expenditure, hence section 69C is also not applicable. So far as contention of appellant that addition made by Assessing Officer is not sustainable as addition was made under section 69 instead of section 69C, it is a well settled principle of law that mentioning of wrong section does not invalidate an order if authority had the requisite jurisdiction under law and the proceedings were carried out in conformity with the intent and purpose of the law. This position ....
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....g payment of admitted tax liability of Rs.l,09,71,691/-and levied a penalty of an amount equal to admitted tax liability quoting section 140A(3). Before Commissioner of Income-tax (Appeals), the assessee raised the ground that the order passed by the Assessing Officer was liable to be quashed as the penalty has been levied under section 140A(3), whereas it should have been levied under section 221. The CIT(A) however, held that provisions of section 292B would cover such inadvertent mistake in quoting the correct section as the appellant had participated in the proceedings without rendering any objection and accordingly, dismissed the appeal of assessee. Assessee submitted that quoting wrong section was fatal to levy of penalty and the assessee could not get opportunity to defend the penalty levied. On the other hand, revenue submitted that the exact nature of contravention for which the assessee was liable was duly referred in the show cause notice and there was a only wrong mention of section 140A(3) instead of section 221 and assessee was duly provided the opportunity and was heard. Further, assessee also duly complied and submitted the reasons as why the admitted tax liability ....
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....ed rather than to permanently annul action of the authority. In case of P.K. Palanisamy Vs. N Arumugham and another in Civil Appeal No. 2099, arising out of SLP (Civil) No. 2308 of 2009, the Hon'ble Supreme Court observed that it is a well settled principle of law that mentioning of wrong provision or non-mentioning of provision does not invalidate an order if the court and/or statutory authority had the requisites jurisdiction therefore. In Ram Sunder Ram v. Union of India &Ors. (2007) 9 SCALE 197, it was held that it appears that the competent authority has wrongly quoted section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law. Thus, quoting of wrong provision of section 20 in the order of discharge of the appellant by the competent authority do....
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.... assessee. These expenses were not recorded in books of account. The Assessing Officer made additions of Rs. 7.63 lakhs under section 69C and taxed it as unaccounted expenditure. In appeal, the Commissioner (Appeals) and the Tribunal confirmed the addition except giving relief to the extent of Rs. 1,50,000. It was held that the appellant has not furnished details or explained nature and purpose behind the 'expenditure1. Some expenses have been incurred towards kabadi, etc. Names of persons do find mention but the nature of activities undertaken, why and for what purpose the payment was made, are not known. It was for the appellant to produce relevant material or produce the said person to justify the payment and show and establish that the expense was not personal in nature but related to or was pertaining to unaccounted business. No one mentioned in the list had appeared before the Assessing Officer to testify and explain the nature and character of the said payments. The appellant has accepted that these transactions were not recorded in the books. The appellant ran and took the risk when he entered into these transactions and, therefore, should face the consequences prescribe....