TMI Blog2018 (6) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... onformity with the records - hence the assessment order passed by the AO holding that re-opening u/s 147 is not valid - Decided in favor of assessee. - ITA No. 4035/Del/2017 - - - Dated:- 13-6-2018 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Assessee : Shri R. S. Singhvi, Adv.; For The Department : Shri Kaushlendra Tiwari, Sr. DR ORDER PER PRASHANT MAHARISHI, A. M. : This is an appeal filed by the assessee against the order of the learned CIT (Appeals)-19, New Delhi dated 12.05.2017 for the Assessment Year 2010-11. 2. The assessee has raised the following grounds of appeal :- 1. That the assessment order passed u/s 143(3) r.w.s. 147 of the Act on 11.03.2016 is perverse to the law and to the facts of the case, because of not invoking the provisions of law contained u/s 153C of the I.T. Act, which the Ld. CIT(A) has failed to appreciate while passing the appellate orders. 2. That the order passed u/s 143(3) / 147 of the Income Tax Act, 1961, on 11.03.2016 by the Assessing Officer, is further perverse to the law and to the facts of the case, because of invoking provisions of law u/s 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1961, has never been discussed in the reasons recorded, therefore, appears to be not available at that time, which has only thereafter been received from the office of DI(Inv.), during the course of assessment proceedings. 9. That the reasons so recorded by the Assessing Officer talks about the information only and did not discuss about any material if any be received from the office of DI (Inv.), Delhi, prior to record reasons and thereafter to the issuance of notice u/s 148 to the appellant, as such, the orders passed are illegal and not tenable. 10. That the orders passed are unconstitutional, therefore, not tenable, because the copy of Statement of Dr. P. Mahalingam of Santosh Medical College, received and possessed by the Assessing Officer did not confirm that they have received any donation / capitation fee from the appellant assessee at the time of admission of his son Dr. Neeraj Kumar Goel in Post Graduate Course. 11. That the copies of seized material if any confirms to be available with the Assessing Officer, from which it could infer, that the assessee has factually paid a sum of ₹ 55 lakhs in cash as donation / capitation fee to Santosh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rejected the contention of the assessee for the reason that cash donation is found during the search on Santosh Group of Institutions. Dr. P. Mahalingam, the Managing Trustee was examined, who confessed about receiving the capitation fees. He also submitted a date wise list showing the name of the persons and the course for the above capitation fees wherein the name of the son of the assessee was found. It was also noted that on 3.02.2010 a sum of ₹ 55 lakhs was paid. Therefore, order under section 143(3) read with section 147 of the Act was passed on 11.03.2016 determining the total income of the assessee at ₹ 56,52,100/- against the returned income of ₹ 1,52,100/-. 5. On appeal before the learned CIT (Appeals) assessee challenged the re-opening on the ground that the learned Assessing Officer has re-opened the case of the assessee purely on the basis of the information received from Investigation Wing without application of his own mind. It was further contended that satisfaction recorded by the approving authority is also not proper as he has not given any reason. On the merits of the case it was contended that assessee has not paid ₹ 55 lakhs as all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed SLP against the same; (iii) He further stated that information was received during the course of search and, therefore, the learned Assessing Officer should have invoked the provisions of section 153C of the Act and not section 148 of the Act. For this he relied upon the decision of Co-ordinate Bench in Rajat S. Chhaterji Vs. ACIT in ITA. No. 2430 (Del) of 2015 [order dated 20.05.2016]; (iv) On the merits of the case he submitted that assessee has not paid any money other than ₹ 15 lakhs to the institute and, therefore, in absence of any evidence, addition cannot be made; (v) He further submitted that no cross examination of the person whose statement was recorded was given to the assessee and in absence of cross examination when assessee specifically denied such payment no addition can be made in the hands of the assessee. 7.1 In the end, he submitted that re-opening is invalid and further the addition on the merit also cannot be sustained. 8. The learned Departmental Representative contested the arguments of the learned authorized representative and submitted that there is a definite information received by the Assessing Officer in the letter that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 70,00,000/- in cash is assessee s own unexplained income from undisclosed sources and liable to be assessed in the hands of the assessee. Therefore, I have reason to believe that unexplained cash paid towards fee is chargeable to tax and the same has escaped assessment for the year under consideration and is a fit case for reopening u/s 148 of I.T. Act. The proposal for obtaining kind approval of the competent authority; to initiate proceedings u/s 147/148 is hereby put up for necessary approval. Submitted for further directions and approval please. Sd/- ( Deepak Kumar ) Income Tax Officer Ward 56 (4), New Delhi. Whether the Addl. CIT, Range-56, N.Delhi satisfied on the reasons recorded by the AO that it is fit case for the issue of notice u/s. 148. Yes Sd/- 27/3/2015. Addl. Commissioner of Income Tax, Range-56, New Delhi. 9.1 On the same date the reasons were approved by the Addl. Commissioner of Income Tax, Range 56, New Delhi. While approving he has simply mentioned Yes . Therefore, now the question arises that whether the re-opening has been correctly initiated by the learned Assessing Officer or he has sim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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