TMI Blog2020 (4) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout giving opportunity to the assessee to cross-examine the person who has given statement u/sec. 132(4) on behalf of the college, simply addition was made on the basis of seized material, in my view, is not correct. Addition made by the Assessing Officer and confirmed by the ld. CIT(A) cannot survive. Accordingly, addition is deleted. Assessing Officer based on the seized material and statement given by the cashier of the college addition was made. Therefore, the addition is based on the statement of the third party though assessee has not specifically asked for cross examination, it is the duty of the Assessing Officer to give opportunity to the assessee and allow him cross-examination. In this case, the assessee specifically denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleted. - Decided in favour of assessee. - ITA No. 2070/HYD/2018 - - - Dated:- 22-1-2020 - Shri V. Durga Rao, Hon ble Judicial Member For the Assessee : Shri K.C. Devdas AR. For the Department : Shri Kiran Katta Sr.DR ORDER This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-6, Hyderabad, dated 18/06/2018 for the Assessment Year 2012-13. 2. Facts of the case, in brief, are that a search and seizure operation u/sec. 132 of the Income Tax Act, 1961 (hereinafter referred to as Act ) was conducted in the case of M/s. Arihant Educational Society at Bommakal Village, Karimnagar on 25/07/2013 which is running a medical college in the name of Chalimeda Ananda Rao Institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03/2017 was issued and served on the assessee. In reply, the assessee filed his return of income for the A.Y. 2013-14 on 26/04/2017 by declaring NIL income. Subsequently, the Assessing Officer has issued notices u/sec. 143(2) 142(1) and called the assessee to file certain information. During the course of assessment proceedings, the assessee has submitted that he has not paid any amount from his source to M/s. Arihant Educational Society towards fee/capitation fee and paid the same from the following family members:- Date Name of Payer Amount (Rs.) Mode of payment 28/04/2011 A. Rajesh Verma (Son) 5,79,600/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the books of account of the medical college and also the statement given by the cashier of the college, cannot be considered as conclusive proof. As per section 292C, any material found in the possession of a person is presumed to be belonging to that person whose possession the material is found. In this case, the seized material was found in the premises of the college and therefore it has to be presumed that the seized material is belonging to the college. The addition solely based on the seized material is not valid, if at all the addition has to be sustained, an opportunity should be given to the assessee to cross-examine the cashier of the college who gave statement u/sec. 132(4) of the Act. For that, he relied on the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises of the college, it has to be presumed that it belonging to the college. When the addition is proposed in the hands of the assessee and when assessee has specifically denied, the Assessing Officer should have given opportunity to cross-examine the cashier and thereafter he has to pass the assessment order. In this case, without giving opportunity to the assessee to cross-examine the person who has given statement u/sec. 132(4) on behalf of the college, simply addition was made on the basis of seized material, in my view, is not correct. I, therefore of the opinion that the addition made by the Assessing Officer and confirmed by the ld. CIT(A) cannot survive. Accordingly, addition is deleted. 8. So far as the judgment of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on given by the assessee by saying that there is no source of income for payment made by the assessee s son to the extent of ₹ 5,79,600/- and confirmed the addition. The case of the assessee is that his son has received gifts from his relatives for admission in P.G. college and the amount was paid through demand draft. The assessee also filed all the bank statements in the form of paper book at page Nos. 25 to 32. By considering the explanation given by the assessee and also bank statements, I find that ld. CIT(A) simply rejected the explanation of the assessee without giving any reason that the transaction is not genuine and the assessee s son has no other source. The assessee has given a detailed explanation and filed bank statement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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