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TMI Blog2020 (6) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... in response to the notice under section 148 of the I.T. Act, 1961. The assessee filed explanation before A.O. dated 25.08.2015 which is reproduced in the assessment order in which it was briefly explained that his daughter Ms. Priyanka Kadian has paid a sum of Rs. 20,25,000/- from her own source for the medical courses and assessee has not paid any amount to her or to the institute. She was gifted this money from her uncle [real brothers of assessee] who are farmers and have their own agricultural income. The A.O. asked for the source of the payment and to produce the assessee for cross-examination. The assessee filed his affidavit affirming the same facts. It was also explained in the affidavit that he was having his own Gas Agency since 1997 and due to fraud he has suffered business losses, for which, case have already been filed in the Court. He has three brothers in Village Bhariwas, District Bhiwani who are farmers and his daughter is close to their uncles who encourage her to join Medical Course and helped her by contributing fees for the course. The assessee denied to have paid any amount to his daughter's admission for medical course. The assessee also filed an affidavit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cash received from Ms. Priyanka Kadian Dated 20.07.2009 by Maharaji Educational Trust for provisional admission in MBBS course. He has submitted that assessee since beginning has denied to have contributed any amount for admission of her daughter to MBBS course. The daughter of the assessee owned-up the payment made to the Medical Course and the source of which was the amounts contributed by her uncle. Those evidences were also produced on record. Therefore, there is no evidence on record that assessee made any payment of the impugned amount in question. Therefore, no addition could be made in the hands of the assessee. He has further submitted that even the re-assessment proceedings is illegal and bad in law because it would not make-out any case of reopening of the assessment. He has also filed copy of School Certificate of daughter of the assessee to show that her date of birth is 27.09.1991 and on the day of reopening of the assessment, she was major and as such no reopening could be done in the hands of the assessee and no addition could be made against the assessee. He has submitted that issue is covered by the Order of ITAT, Delhi SMC-Bench, Delhi in the case of Shri Nare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat amount of admission fees was paid by his brothers on behalf of his daughter which is supported by documentary evidences, though the same were not accepted by the Revenue. The daughter of the assessee has also owned-up that amount in question have been paid through her uncle for admission to the Medical College. The receipt executed by the College is also affirmed this fact that daughter of the assessee has made the payment for MBBS Course. Thus, no material is available on record to prove that assessee made any payment on behalf of the daughter for admission to the MBBS Course. Since the Revenue alleged that the amount in question is paid by assessee for admission of her daughter to the Medical Course, therefore, burden is very heavy upon Revenue to prove by positive evidence that assessee has in fact made the payment to the Medical College for admission for her daughter. However, no evidence is available on record to prove such contention rather the evidences on record and initial denial of the assessee itself supports the explanation of assessee that no amount is paid by assessee for admission of her daughter in Medical Course. The same issue have been considered by ITAT, Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding cash payment to the above college. The assessee was asked to furnish documentary evidences of the source of the aforesaid payments in cash. The assessee is a Doctor by profession. During the course of assessment proceedings, statement of assessee was recorded under section 131 of the Income-Tax Act. The A.O. noted that Dr P Mahalingam has admitted in his statement under section 132(4) of the Income Tax Act that he had accepted the capitation fees from the assessee and surrendered the amount for taxation. The assessing officer, therefore, made addition of Rs. 19,75,000/- in the hands of the assessee. 2.1. The assessee challenged the reopening of the assessment as well as the addition on merit before the Ld. CIT(A). However, appeal of assessee has been dismissed. 3. The assessee, in the present appeal, challenged the reopening of the assessment as well as the addition on merit. 4. I have heard the Learned Representatives of both the parties and perused the material available on record. 5. Learned Counsel for the Assessee submitted that assessee raised specific ground on merit to challenge the addition on merit, but, the Ld. CIT(A) without any reason noted in the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er if statement of Dr. P Mahalingam recorded at the back of the assessee by the Investigation Wing, was allowed for cross examination on behalf of the assessee at any stage, therefore, statement of third party, cannot be used against the assessee unless assessee has been allowed a right to cross-examine such statement. The A.O. in the assessment order also did not mention, if any, material found during the course of search, was confronted to the assessee. Thus, assessee was justified in denying in making any cash payment to Dr. P Mahalingam at any stage. There is no material available on record to justify the addition against the assessee on merits. In the absence of any material on record against the assessee and in the absence of cross examination to the statement of Dr P Mahalingam on behalf of the assessee, such material cannot be used against the assessee so as to make the impugned addition. I, accordingly, set aside the Orders of the authorities below and delete the addition of Rs. 19,75,000/-. 8. Both the parties also argued on initiation of reassessment proceedings and have also cited various case Laws and Ld. D.R. also submitted written submissions. However, in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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