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2012 (9) TMI 475 - AT - Income TaxDisallowance of commission expense - AO issue notice u/s 133 to service provider for examination in respect of commission income - Notice could not be severed due to change in name of payee’s companies at the address provided - AO directed assessee to produce service provider - Assessee unable to produce payee - Submit certificates along with replies from payee - Assessee submit details such as payment through cheque, TDS has been deducted & deposited, commission shown as income in ITR of recipient and confirmations along with agreements - Held that:- As assessee submit details such as payments were made by cheques and after deduction of TDS and the income was reflected in returns of income. If notice could not be served due to change in name of Company, then fresh notice needs to be issue with new name of recipient. Therefore, AO has to use his powers to issue notice u/s 133 of summon regarding examination of the payee.Case remand back to AO for fresh examination. Can genuine business expenditure disallow merely because of wrong nomenclature - Assessee receives fund to finance its project - Assessee paid him certain sum which is compensatory in nature for providing fund & shown as commission expense - TDS has been deducted & also shown as income in return of recipient - Held that:- As the recipient confirmed the receipt, on which TDS deducted & shown as income in his return. Therefore it is genuine business expenditure of the assessee though wrongly claimed by assessee as commission expenditure. Decided in favor of assessee.
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