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2022 (5) TMI 664 - AT - Income TaxProtective addition made in the hands of the assessee - income surrendered by the assessee in the sworn statement - estimation of capitation fee alleged to have been collected for admission of students into PG Course - HELD THAT:- Tribunal, while upholding the view taken by Ld CIT(A) in deleting the addition relating to capitation fee for PG Students, has also observed that the AO was not justified in placing reliance on the above said seized documents, i.e., it is the view of the Tribunal that the seized documents do not show the collection of capitation fee from the PG students. Another important point noticed by the Tribunal is that the investigation wing had issued summons to some or all the students in the list and also recorded the statements from them - result of the said enquiry was not conveyed to the assessee in spite of specific request made in this regard. AO has also not discussed anything in the assessment order about the enquiry conducted and the results thereof. Tribunal has also expressed the view that the said investigations might not have brought out anything against the assessee. Accordingly, the Tribunal has held that the impugned seized documents lack credence and could not be relied upon. Since the allegation of collection of capitation fee from PG students itself could not be proved, the addition made on substantive basis in the hands of Venkatesha Education Society were deleted. Accordingly, the above said conclusions reached by the Tribunal would equally apply to the case of the assessee herein also. Hence the protective addition made in the hands of assessee would automatically fall to the ground. Accordingly, we do not find any reason to interfere with the decision taken by Ld CIT(A) on this issue in AY 2009-10 to 2014-15. CIT(A) in confirming addition of Rs.25 crores made by the AO on the basis of statement/letter given by the assessee - The initial declaration of Rs.20 crores was obtained in the statement taken u/s 132(4) of the Act and we have found that the same is not supported by any incriminating material. Subsequently, the amount was increased to Rs.25 crores, again without any basis. We have also noticed that the surrender was not blanket surrender as presumed by the tax authorities. We also noticed that the surrender was couched with various caveats. In any case, the surrender of income without any basis is against the circular issued by CBDT . We also noticed that the assessee has explained later before the AO that the capital gain was in his mind while making surrender. Hence the facts prevailing in the present case are totally different from the facts that prevailed in the above said cases relied upon by Ld D.R. Hence, we are of the view that these decisions cannot be taken support by the revenue. In view of the foregoing discussions, we are of the view that the order passed by Ld CIT(A) on this issue cannot be sustained. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete the addition of Rs.25 crores made in AY 2014-15. Appeal of assessee allowed.
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