TMI Blog2014 (3) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have made the payment and in respect of others proceedings were initiated by the Assessing Officer’s concerned. The explanation of the assessee with regard to would not be of any help to justify the reduction of addition - This also shows the lacklustre attitude of the AO and the routine manner in which addition was made by the AO, which was routinely approved by the CIT(A) - The assessee consistently pleaded before the Tax Authorities that no material was placed before him and no opportunity was given to him to controvert the material collected by the AO, which was the basis for making the addition - In the absence of any material placed by the revenue, there is no basis for making the addition – also, in the absence of any efforts made by the Revenue it may not be proper after long lapse of time to send back the matter for further investigation as it would amount to paying premium by the assessee for lethargy of the Revenue – thus, the additions made by the AO set aside – Decided partly in favour of Assessee. - ITA No. 2181/Mum/2011 - - - Dated:- 21-2-2014 - Shri D. Manmohan And Shri N. K. Billaiya,JJ. For the Appellant : Shri Jayant R. Bhatt For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 143(1) of the Act. However, as per the information received from the DIT (Inv), Unit-I, Mumbai, referable to the information gathered during the course of the search conducted in D.Y. Patil Group cases, the AO concerned issued notice under section 148 of the Act on 28.03.2008 after obtaining necessary sanction from the Addl. CIT, Range 26(1), as required under section 151(2) of the Income Tax Act. As can be noticed from the assessment order the AO appears to have recorded the reasons for reopening of the assessment, which is essentially based upon the information gathered during the search conducted in the case of D.Y. Patil Group and the same was forwarded to the Addl. CIT who has also recorded his satisfaction. Pg. 38 of the paper book disclosed the reasons recorded for reopening of the assessment. In response to the notice the assessee, vide his letter dated 14th April, 2008, submitted that he had also received a notice under section 131 of the Act from DDIT (Inv), Unit-I(4) and reply was also filed on 25.02.2008 and further submitted that to the best of his knowledge and belief the return originally filed reflects the correct and complete income. Thereafter, fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper opportunity of rebuttal and despite repeated assertions that no donation was paid the AO merely presumed that some payment was made by the assessee, presumably on the strength of the three documents i.e. pages 29 to 31 of the paper book, which, in the opinion of the assessee, are dumb documents which do not bear the signature of the assessee. The learned CIT(A), however, affirmed the action of the AO. The detailed order passed by him on 19.01.2011, is being challenged through the present appeal filed by the assessee before the Tribunal. 7. The learned counsel for the assessee submitted that reopening of the assessment by issuing notice under section 148 of the Act is bad in law since specific provisions in the Act override the general provisions. In other words, entries having been made in the diaries maintained by D.Y. Patil group wherein search proceedings were initiated, the Act prescribes reopening of assessment in the case of related parties only under section 153C of the Act, which is introduced in the Statute by Finance Act, 2005 with retrospective effect from 01.06.2003. In response to learned D.R. s objection that it does not apply to A.Y. 2001-02, the learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,92,000/- the assessee paid some amount to the college in the form of donation. He has also adverted our attention to the assessment order to indicate that D.Y. Patil group approached the Settlement Commission by accepting the receipts, presumably as undisclosed income, and hence it cannot be assumed that the assessee has made the payment merely because a third party has recorded something in the diary maintained by them. He strongly contended that the assessee cannot be asked to prove a negative fact. It was contended that the assessee has never paid donation. It was further contended that the assessee was never given an opportunity either to examine the party who has made such statement or whose book contain certain entries and hence merely on the strength of the three papers, which can at best be considered as dumb documents, addition cannot be made. The learned counsel for the assessee also placed reliance upon the decision of the Apex Court in the case of Kishinchand Chellaram vs. CIT 125 ITR 713 wherein the Court observed that without giving the assessee an opportunity to controvert the material on which the addition was made it is not proper to conclude that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institute as cash received which implies that cheque payment, which is officially collected, was recorded in the regular books of account and there cannot be any dispute on that fact. Thus, the explanation of the assessee with regard to Rs. 1,92,000/- (i.e. paid by him through cheque) would not be of any help to justify the reduction of addition from Rs. 5,83,000/- to Rs. 3,91,000/- . This also shows the lacklustre attitude of the AO and the routine manner in which addition was made by the AO, which was routinely approved by the CIT(A). The assessee consistently pleaded before the Tax Authorities that no material was placed before him and no opportunity was given to him to controvert the material collected by the AO, which was the basis for making the addition. Even otherwise the assessee cannot have any knowledge about the activities of the institute where his son is one of the students whereas the AO would have collected the entire material by virtue of the search conducted in the case of D.Y. Patil group and it could have easily been shown as to on what basis he has come to the conclusion that the assessee is also one of the parties who have made the payment in cash in the form ..... X X X X Extracts X X X X X X X X Extracts X X X X
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