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TMI Blog2016 (8) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be faulted. In these circumstances, the direction issued by the CIT(A) for the addition of ₹ 30 lacs to be made to the assessee’s return is well founded. The Tribunal upheld the findings of the CIT(A) on facts. For the reasons already stated these findings cannot be held to be absurd or perverse. The assessee has not been prejudiced in any manner whatsoever on account of the Assessing Officer having mentioned the wrong section. Where in the assessment proceedings the enquiries are made by the Assessing Officer of facts and the Assessing Officer after considering the facts and circumstances of the case including the assessee’s response, if any, thereto, makes an addition, which is justified and permissible under the provisions of the Act but inadvertently or even wrongly mentions a wrong provision of the Act, the assessment order cannot be set aside on that ground. It is open in such circumstances to the Appellate Authority or to CIT(A) or the Tribunal to uphold the addition under the correct section. This ofcourse would be in circumstances where the error has not prejudiced the assessee in any manner whatsoever. At the cost of repetition it is not even the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s arrived at by the Tribunal are perverse, in as much as no reasonable person correctly informed of the provisions of law would come to such a conclusion? 3. The questions being inter-linked are dealt with together. The main question is whether the Tribunal was justified in invoking the provisions of section 68 of the Act, although the assessment order and the order of CIT(A) were based on section 69-A of the Act. 4. Sections 68 and 69-A of the Act read as under:- 68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year: Provided that where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tating that he was a non-resident and therefore, was not available for examination. The assessee failed to comply with the subsequent requisitions to this effect on the same ground. The Assessing Officer, therefore, requisitioned under section 133(6) of the Act said Dhruv Parti s non-resident account with Kotak Mahindra Bank Ltd. to ascertain the availability of funds with him. The bank statements revealed that on 29.03.2007 there was a credit balance of only ₹ 4972/- and on 16.04.2007 an aggregate sum of ₹ 19.30 lacs was deposited in cash in Dhruv Parti s account. The assessee received from Dhruv Parti by cheque a sum of ₹ 10 lacs, ₹ 10 lacs, ₹ 5 lacs and ₹ 5 lacs on 01.04.2007, 16.04.2007, 19.04.2007 and 14.06.2007, respectively, aggregating to ₹ 30 lacs. 7. The Assessing Officer held a sum of ₹ 19.30 lacs to be unexplained money and added the same to the assessee s income under section 69-A of the Act. 8. The CIT(A) noted that the assessee even after more than 4 years of the receipt of the alleged loan had failed to submit any confirmation from Dhruv Parti that the amounts were advanced to the assessee as a loan. It was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden, therefore, was on him to establish the same. The assessee has failed to discharge this burden. The authorities have infact established that the facts and circumstances of the case militate against the assessee s case that the amounts were lent and advanced to him by said Dhruv Parti. On facts, therefore, the inference drawn by the authorities under the Act cannot be faulted. In these circumstances, the direction issued by the CIT(A) for the addition of ₹ 30 lacs to be made to the assessee s return is well founded. 12. The Tribunal upheld the findings of the CIT(A) on facts. For the reasons already stated these findings cannot be held to be absurd or perverse. In fact a view to the contrary would have been surprising. 13. This brings us to the legal issue raised by Mr. Salil Kapoor, the learned counsel appearing on behalf of the appellant. His submission is as follows: The Assessing Officer made the addition in view of section 69-A of the Act. The order of the CIT(A) did not mention any section. Presumably, therefore, the CIT(A) confirmed the addition and infact enhanced the same from ₹ 19.30 lacs to ₹ 30 lacs also under section 69-A of the Act. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independent ground/provision open to be invoked by the authorities. 16. The assessee has not been prejudiced in any manner whatsoever on account of the Assessing Officer having mentioned the wrong section. Where in the assessment proceedings the enquiries are made by the Assessing Officer of facts and the Assessing Officer after considering the facts and circumstances of the case including the assessee s response, if any, thereto, makes an addition, which is justified and permissible under the provisions of the Act but inadvertently or even wrongly mentions a wrong provision of the Act, the assessment order cannot be set aside on that ground. It is open in such circumstances to the Appellate Authority or to CIT(A) or the Tribunal to uphold the addition under the correct section. This ofcourse would be in circumstances where the error has not prejudiced the assessee in any manner whatsoever. At the cost of repetition it is not even the assessee s case that during the assessment proceedings he was given to understand that the queries were raised by the Assessing Officer and/or that he responded to the same only on the basis of the provisions of section 69-A of the Act. 17. In ..... 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