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TMI Blog2012 (6) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... he very issuance of notice under section 148 being bad in law which goes to the foundational aspect of the dispute ? (b) Whether, under the facts and circumstances of the case, the assessment made under section 148 was justified without having communicated the reasons recorded for initiating and completing the reassessment proceedings ? 2. Whether, under the facts and circumstances of the case, the Tribunal was justified in upholding the addition on the wrong and misappreciation of arguments and evidence by having adopted the wrong assumption of facts and devoid of legal force to stand ? 3.(i) Whether, under the facts and circumstances of the case and on the true and correct interpretation of the facts and evidence, the Tribunal was justified in upholding the addition on the estimated basis relying on the documents and material not having reasonable and rational nexus with the additions made ? (ii) Whether, under the facts and circumstances of the case, the Tribunal was justified in upholding the addition by making multiplication of the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us. 7. We have heard learned counsel for the parties and perused the record. 8. A perusal of the order of the Tribunal in Income-tax Appeal No. 148 of 2004 relating to the assessment year 1993-94 clearly shows that the asses- see had not challenged the validity of reassessment proceedings under section 148 of the Act before the Tribunal and, therefore, question No. 1 does not arise in this appeal. However, the assessee in the appeals relating to the assessment years 1991-92 and 1992-93 had filed miscellaneous application under section 254(2) of the Act claiming that the argument regarding validity of reassessment proceedings had not been adjudicated by the Tribunal. Thereupon, the Tribunal, after considering the submissions of the respective parties, had rejected the plea of the assessee, vide order dated May 9, 2005. Examining the validity of the reassessment proceedings under section 148 of the Act, it is noticed that the Tribunal had held the same to be justified with the following observations : "After hearing the rival submissions and perusing the order of the tax authorities and the case law cited by the assessee, we are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g material, particularly, annexure A-20 was found which depicted that the assessee was engaged in imparting tuition to students for consideration and was not disclosing the income therefrom to the Department. In this back ground, the plea of the assessee challenging the validity of reassessment proceedings is unsustainable. The Tribunal was, thus, right in upholding the reassessment proceedings to be valid. 10. The next point for consideration in these appeals is, whether the additions sustained by the Tribunal on account of undisclosed tuition fee is legal and valid ? The Tribunal, while sustaining the addition as noticed earlier, had recorded the following findings in paragraph 9 of its order : "We have heard both the parties at some length and carefully considered the rival submissions. We have also examined the facts, evidence and material on record. We have also referred to the relevant pages of the paper book to which our attention has been drawn. Similar issue came up before the Tribunal for the assessment years 1991-92 and 1992-93. The assessee had made submissions that it did not provide coaching for commercial considerations but he only p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; (viii) Pages 18 and 19 contain the names of 26 students (10 + 2) from November 1, 1991, at 3.45 p.m. (ix) Pages 20 and 21 contain the names of 24 students in respect of tuition to start from October 23, 1991, at 8.30 a.m. (x) Page 23 also mentions the name of one waitlisted student. (xi) Pages 24 and 25 contain the names of 16 students of 10 + 2 for classes to start from November, 1991, at 8.30 a.m. (xii) Pages 26 and 27 contain the names of 23 students of (10+ 1) for coaching to start from October 23, 1991, at 8.30 a.m. (xiii) Pages 28 to 30 contain the names of 38 students of 10 + 1 for coaching from May 15, 1991. (xiv) Page 31 also contains the names of some students directed to report on May 14, 1991, at 8.30 a.m. (xv) Page 32 contains the names of 26 students for CET/PMT tests. (xvi) Pages 34 and 35 contain the names of some other 10 + ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of CET/PMT tests appears to be on the higher side. We find that during the course of assessment pro- ceedings, the Assessing Officer recorded the statement of Shri R. S. Bhatti, father of Shri Shivdeep Singh, a student of 10 + 2 class who undertook tuition from the assessee. The statement is at page 35 of the paper book. His father replied that he had paid Rs. 900 to Shri Ahuja for tuition of his son. The period for which such coaching was provided is not known. Admittedly, such coaching must have been for a period of three months. The Assessing Officer also recorded the statement of Shri Kirpal Singh, father of Shri Jagdeep Singh, a stu- dent of 10 + 2 class who received coaching from the assessee in the year 1993. He stated that he had paid an amount of Rs. 525 for three months at Rs. 175 per month. His statement is at page 38 of the paper book. It is obvious that these students undertook tuition from the assessee in the subsequent period. Therefore, the assessee must have charged either the same amount or lower amount in the earlier assessment years for which the Commissioner of Income-tax (Appeals) was justified in reducing the addition to 50 per cent., i.e., Rs. 150 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found to show that the assessee was undertaking such tuition work in the accounting year relevant to the assessment years 1991-92 and 1992-93. Therefore, the order of the learned Commissioner of Income-tax (Appeals) in deleting the addi- tions was upheld. But, in the present cases, seized document clearly shows that the assessee was carrying on tuition work on regular basis in the assessment years under reference. Therefore, the ratio of both the decisions relied upon by the learned counsel is not applicable to the facts of the present case. The facts of the case for the assessment year 1993-94 are similar to the facts of the case for the assessment years 1991-92 and 1992-93 except that for the assessment year under reference the Assessing Officer and the Commissioner of Income-tax (Appeals) have taken the increase in such income by 15 per cent. Since the tuition income for the assessment years 1992-93 was confirmed by the Tribunal at Rs. 86,000 and after taking into account 15 per cent. increase over the assessment year 1992-93, total amount for the assessment year 1993-94 from tuition work would work out to Rs. 98,900 (i.e., Rs.86,000 + 15 per cent.). Thus, modifying the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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