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TMI Blog2018 (8) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO which indicated that CIT (A), Ghaziabad had passed appeal order on dt. 31.10.2012. 5. That the appellant moved an application dt. 25. 03.2013 before the C1T (Appeal), Ghaziabad for providing copy of the appeal order, however, the office of the CIT (A) verbally informed that one copy of the appeal order was issued to CA Pramod Goel on dt. 30.11.2012 when he came to office for some other work and advised to contact CA Pramod Goel. 6. That the appellant immediately contacted CA Pramod Goel to inquire about the copy of the appeal order who replied that as he is busy in time barring matters till 31.3.2013 and will be able to reply only after 31.3.2013. On 2.4.2013, the appellant again contacted CA Pramod Goel, who stated that on 30.11.2012, when he was in the income tax office for some office work, office of the CIT (A) gave them copy of the appeal order dated 31.10.2012 and as he was very busy during that time, he forgot to send copy of the same to appellant and gave the copy of the appeal order to appellant on dt. 2.4.2013. 7. That though the impugned order was passed on dt. 31.10.2012 however the copy of the appeal order was not sent to appellant on the above mentioned add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that time, I forgot to convey message of receipt of appeal order to the appellant. 5. That in the last week of March, 2013, the appellant contacted me and enquired about the copy of the appeal order. As I was busy in time barring matters, I asked them to contact me in April 13. 6. That on 2.4. 2013, the appellant again contacted me and I gave them the copy of appeal order as served to me by the office of CIT(A), Ghaziabad on 30 .11.2012." Sd/- Deponent Verification I, the above named deponent do hereby verify that the contents in para 1 to 6 above are true and correct to the best of my knowledge and belief and nothing material has been concealed from. Verified at Ghaziabad on this 15th day of April 2013 . Sd/- Deponent 4. During the course of hearing, the ld. Counsel for the assessee submitted that the delay occurred due to the mistake of the Counsel of the assessee who did not handover copy of the order and that the order was not served by the ld. CIT(A) at the address of the assessee rather it was given to the Counsel who inadvertently did not serve the same to the assessee. He requested to condone the delay. The reliance was placed on the following case laws: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, the delay in filing the two appeals could not be condoned." It has further been held as under: "That none should be deprived of an adjudication on the merits unless the court or the Tribunal or appellate authority found that the litigant had deliberately and intentionally delayed filing of the appeal, that he was careless, negligent and his conduct lacked bona fides. Those were the relevant factors. The Tribunal's orders did not meet the requirement set out in law. It had misdirected itself and had taken into account factors, tests and considerations which had no nexus to the issues at hand. The Tribunal, therefore, had erred in law and on the facts in refusing to condone the delay. The explanation placed on affidavit was not contested nor could it have been concluded that the assessee was at fault, that he had intentionally and deliberately delayed the matter and had no bona fide or reasonable explanation for the delay in filing the proceedings. The position was otherwise." 8. In the present case also, the delay occurred due to wrong advice of the ld. Counsel for the assessee and there was no malafide intention of the assessee in filing the appeal belated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2009. The donor M/s VIC Enterprises Pvt. Ltd. had given its confirmation vide letter dated 22.01.2009 along with the copies of its profit and loss account, balance sheet, copy of bank account & audit report etc. However, no confirmation was received from M/s Navjyoti Vikas Sansthan. Subsequently, a computerized confirmation was received. Thereafter, the AO traced bank account through the cheque drawn by the society, issued by M/s Nav Jyoti Vikas Sansthan and called the information u/s 133(6) of the Act from Nainital Bank, Ghaziabad. On perusal of the bank account, the AO noticed that before issuance of cheque, funds were credited by transfer entry by M/s Navjyoti Vikas Sansthan vide cheques issued by Mahamedha Co- operative Bank. The AO also called information from Mahamedha Co-operative Bank with the name and complete address of the banks from where those cheques were cleared/deposited in the bank account of Navjyoti Vikas Sansthan. The AO noticed that the maximum cheques were received from M/s Varun Trade Centre and M/s Sharma Associates which were operated by Sh. Vineet Kumar. The AO also noticed that the cash was directly deposited in the account of M/s Varun Trade Centre and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause as to why the difference of cost of construction declared by you and the cost of construction estimated by the Valuation Officer amounting to Rs. 8,62,646/- may not be added in your total income as unexplained investment in construction of college building. 3. Please produce all books of accounts, bills & vouchers, bank pass book for the A.Y. 2007-08." 12. Since, there was no compliance to the aforesaid notice, the AO again issued a show-cause notice dated 27.11.2009 as under: "In this connection, Notices u/s 143(2) & 142(1) were issued and served. On the dates so fixed your authorised representative Shri Pramod Goel, FCA, attended the proceedings from time to time and furnished necessary details as called for which have been examined. 2. During the course of assessment proceedings it was noticed that donation of Rs. 15,00,000/- has been shown as received from Nav Jyoti Vikas Sansthan, 66, New Mohanpuri Colony, Meerut, through cheque. The necessary statement of the secretary of M/s Nav Jyoti Vikas Sansthan has already been taken on 2.9.2009 by the undersigned. The Secretary Shri Madan Giri S/o Late Shri Nanak Giri, has denied to give any donation to your society. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income as unexplained investment in construction of college building. 6. Please note that this is time barring case, in case of non compliance assessment proceeding will be finalized on the facts and circumstances of the case without providing you further opportunity and adding in your total income, the bogus donation of Rs. 15,00,000/- and difference in the investment in construction of building as shown by you and valued by DVO amounting to Rs. 8,62,646/-." 13. In response, the assessee submitted as under: "That at the outset we wish to submit that the donation of Rs. 15,00,000/- received from M/s Nav Jyoti Vikas Sansthan is genuine and was received from them. The assessee maintained complete record of the identity indicating the name & address of the donors making such contributions during the year under consideration and such details and other relevant documents of all the donations received during the year were produced before your goodself, Sh. Madan Giri, secretary of M/s Nav Jyoti Vikas Sansthan was cross examined and his statement was recorded on 16.12.2009. Sh. Madan Giri confirmed in his statement that his signatures are genuine and he has not received any cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities were done by the society. f) As per bank account of the society M/s Nav Jyoti Vikas Sansthan, having Account No. 1002078 at Nainital Bank Ltd., 35, Additional Sihani Gate, Ghaziabad, which was opened on 21.2.2006 with the cash deposit of Rs. 5,000/- and upto 16.9.2006, the total transaction of Rs. 1,81,05,000/- was made and finally the balance amount of Rs. 3,593/- was withdrawn and no further transaction was made in this account till date. g) When the inquiry of clearing cheque was made, it has been found that most of the cheques are coming from the account of Shri Vinod Kumar Gupta Prop. M/s Varun Trade Centre and M/s Sharma Associates who has his bank account at Mahamedha Urban Cooperative Bank Ltd., Ghaziabad. h) The cash was deposited in the above account and transferred to the account of Nav Jyoti Vikas Sanshan which has further issued cheques to various persons including M/s Bankey Bihari Educational Society. i) The capacity and creditworthiness of M/s Nav Jyoti Vikas Sansthan has not been established. j) As far as cross examination is concerned, it is to point out that leading questions were asked by the counsel which were incomplete in itself such que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of donation." 15. The AO held that there was neither genuine donation nor it was voluntary and made the addition of Rs. 15,00,000/-, considering the same as unexplained cash credit u/s 115BBC/68 of the Act. The reliance was placed on the following case laws: CIT Vs P. Mohan Kala, 271 ITR & 278 of 2007 (SC) CIT, West Bengal-II Vs Durga Prasad More, 82 ITR 540 (SC) 16. Being aggrieved the assessee carried the matter to the ld. CIT(A) and submitted as under: II. Addition of Rs. 15,00,000 on account of donation from Nav Jyoti Vikas Sansthan: "27. That during the year under consideration, the appellant received a total amount of Rs. 71,00,000/- towards donation for corpus fund. Out of this, two major amounts were received from M/s VIC Enterprises Pvt. Ltd. Rs. 50,00,000/- and from M/s Nav Jyoti Vikas Sansthan, 66, New Mohanpuri Colony, Meerut (PA No. AAAAN4050A) Rs. 15,00,000/-. The balance donations were received from various persons for less than Rs. 20000/- each. The confirmations from all the parties were filed before the AO After independent inquiries, the AO accepted all the donations except Rs. 15,00,000/- from Nav Jyoti Vikas Sansthan. 28. That it was alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of donation maintained by the assessee and filed before you., we submit that the donation received is genuine and was utilized for the charitable purposes. Thus, in view of these facts and submissions made earlier, it is prayed that the donation of Rs. 15,00,000/- should not be treated as anonymous and may be accepted as genuine." 29. That though it has been alleged by the AO that secretary of Nav Jyoti Vikas Sansthan denied having made any donation and also denied the signature on donation letter but in response to question put up to him during cross examination on 16.12.2009 he accepted that the signature on donation letter are his original signature. Fife also accepted that signature on cheque are also genuine. He also accepted that he has not received any cash in lieu of the cheque. 30. That the AC has considered various irrelevant information which are unrelated to the transaction of donation received by the appellant. Most of the deposits and withdrawals as referred to by the AO relate to transactions taking place in the FY 2006-07 whereas the transaction of the appellant relate to FY 2007-08. The AO has not brought any material on record to show that the source of depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lank signed cheques, for the purpose of laundering as unaccounted money. The details of bank statement of donor (M/s Nav Jyoti Vikas Sansthan), if perused carefully, corroborate the view that donor's name and account has been misused for money laundering. The cash has been deposited in the account of Sh. Vinod Kumar Gupta and then transferred to the account of the donor which has issued cheques to the various persons including the appellant. The objections raised by the appellant's counsel during the appeal are without much substance. The counsel is harping only on one answer where Sh. Madan Giri has said that he did not receive any cash7service charge/kickback in lieu of such hawala entries. The counsel has not cared to read the other answers of Sh. Madan Giri, wherein he has clarified that the kick back as promised by him was not fulfilled by the assessee and that is why he has said that he did not receive any such compensation/kickback. So this does not imply that Sh. Madan Giri is retracting, or changing, his earlier statement that the account and cheques of M/s Nav Jyoti Vikas Sansthan have been misused to "create" the impugned .donation of Rs. 15,00,000/- Donor' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 314-SC-IT) CIT Vs Navodaya Castle Pvt. Ltd. (2014) 367 ITR 306 (Del.) CIT Vs MAF Academy (P.) Ltd. 361 ITR 258 (Del) CIT Vs Nipun Builders & Developers (P.) Ltd. 350 ITR 407 (Del.) CIT Vs Nova Promoters & Finlease (P) Ltd. 342 ITR 169 (Del.) CIT Vs Ultra Modern Exports (P.) Ltd. 40 Taxmann.com 458 (Del.) CIT Vs N.R. Portfolio Pvt. Ltd. (2013) 29 Taxmann.com 291 (Del.) CIT Vs Empire Builtech (P.) Ltd. 366 ITR 110 (Del.) CIT Vs Focus Exports (P.) Ltd. 51 Taxmann.com 46 (Del.) 20. We have considered the submissions of both the parties and perused the material available on the record. In the present case, it is noticed that the assessee received a donation of Rs. 15,00,000/- from M/s Nav Jyoti Vikas Sansthan, Meerut vide cheque no. 084387 drawn on the Nainital Bank Ltd., Ghaziabad. The said cheque was signed by the Secretary of the Sansthan who also gave a confirmation letter. The said fact is evident from page no. 45 of the assessee's paper book which is the copy of the cross examination on oath of Sh. Madan Giri who confirmed vide giving answer to question no. 3 that the donation was given to the assessee. It is also noticed that the assessee had shown the donation i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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