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2018 (10) TMI 1584 - AT - Income TaxReopening of assessment u/s 147 r.w.s. 148 - reopening based on information of Investigation wing - non independent application of mind by A0 - capitalization fee received - Held that:- It is significant to note that the information received by the AO was neither unspecific nor general nor vague and it referred to the direct transaction of capitation fee paid in cash by the guardian of assessee’s son to Santosh Medical College. Not only this, the AO was in possession of documentary evidences seized in the search, i.e., ledger account of Santosh Medical college, the statements of principal person of the Institute admitting receipt of capitation fee during the year under consideration and the letter of ADIT, Investigation Wing as referred to in the assessment order. This information contains the name of the person, from whom the capitation fee was received along with their addresses, date of payments, name of the course pursued, which establishes a live link between the recipient of the cash payments and the payer thereof. Once, the receipt of cash payments towards capitation fee stood established by documentary evidences and statements of the recipient, it was incumbent upon the assessee to explain and establish by cogent evidence that no such payment was made by it. However, there is no evidence to this effect on record. In presence of such a specific information and tangible material in possession of the Assessing Officer, in our considered view, the Assessing Officer was justified to form a prima facie belief or opinion that income chargeable to tax in the hands of the assessee had escaped assessment. Thus, the contention of the assessee that there was no application of mind, does not sound good. Assessing Officer has tried its best to justify the impugned addition. The assessee in his statements, side tracking the explanation to explain the source an nature of payment stated that the payments towards fee etc. for his son’s admission was made by his father-inlaw, Shri Jile Singh Bhati and Shri Jile Singh Bhati in his statements stated that he did not remember payment of capitation fee, but admitted payment of only ₹ 4.18 lacs. The statements of both the assessee and his father-in-law nowhere go to belie the factum of payment of capitation fee. Even no evidence regarding admitted payment of regular fee was also laid before the Assessing Officer. In such state of affairs, in our opinion, there is no infirmity in the conclusions reached by the authorities below. Contention of assessee regarding reopening of case without proper service of notice u/s. 148 - notices, summons etc. so issued to the assessee at the given address admittedly stood served upon the assessee either through the tenant or through his brother. The assessee, when appeared before the Assessing Officer itself had shown copies of three letters issued by the Assessing Officer on 23.03.15, 26.03.15 and 09.07.15, which included the notice u/s. 148. We, therefore, find that this contention of the assessee does not stand proved nor does it render any help to the assessee. Reopening without seeking proper sanction - evident from record that no assessment of assessee was made u/s. 143(3). The assessee did not file even a return u/s. 139 for this year. Therefore, the case of assessee does not come within the reach of subsection (1). In Sub-sec. (2), there is restriction without sanction of competent authority for the issuance of notice beyond the period of four years from the end of relevant assessment year, which too is not applicable in the instant case, as the notice u/s. 148 has been issued within the period of four years. In presence of these facts, the decisions relied by the ld. AR on this issue are not applicable to the present case. - Decided against assessee.
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