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TMI Blog2016 (7) TMI 1620X X X X Extracts X X X X X X X X Extracts X X X X ..... g prior approval of Addl CIT, Range-1, Bhopal. 3. In this case, the Assessing Officer received information from ACIT 1(1), Bhopal that a survey u/s 133A of the Act was conducted on 9.8.2005 at the premises of Sarvajanik Jankalyan Parmarthik Nyas and during the course of survey from the brief case of Shri Ram Vilas Vijaywargiya some loose papers were found which revealed that the amount were received by People's College of Medical Science & Research Centre in lieu of admission given to various students in MBBS in addition to the prescribed fees. At serial no. 40 name of student is mentioned 'Surbhi Bansal c/o Pradeep Bansal and the amount of donation is noted 15 lakh. Kum Surbhi Bansal is daughter of the assessee. The assessee did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the assessee even though there was no tangible material on the basis of which he reached the conclusion that the assessee has paid the amount of Rs. 15 lacs for getting her daughter admitted in MBBS course in the medical college when the assessee has denied the statement before the learned CIT(A). The books of accounts are subject to audit, therefore, the same should be accepted. The learned counsel for the assessee relied upon the decision of the Channai Bench of the Tribunal in the case of Saveetha Institute of Medical & Technical Sciences vs. ACIT; ITA Nos.90 & 204/Mad/2011. 5. On the other hand, the learned DR supported the orders of the authorities below and submitted that in the case of Shri Ram Vilas Vijaywargiya an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course of statement recorded on oath denied to have received any amount from the assessee. Similarly, the assessee has also denied to have made any payment. I am, therefore, of the view that the statement of the individual case has to be seen and it has to be used independently. In the statement recorded some of the students admitted that they have paid donation but this statement of the third party cannot be used against the assessee who has denied to have made any payment. I am of the view that there are 1000s of reasons for appearing her name in the code but it cannot be used against the assessee unless proper opportunity of making cross examination is given to the assessee after giving a copy of statement to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him. The document No.56 on which heavy reliance has been placed by the Assessing Officer is nothing but a piece of paper containing details of number of seats allotted to Management Quota and Government Quota. This document cannot be said to be even an ITA 99&100/11 204 & 205/11 :- 10 -: incriminating document because this is a declared truth which is also recorded in the books of the trust. The statement recorded after the verification cannot be accepted without doubt. So, we can safely conclude that document No.56 cannot be treated as incriminating document by any stretch of imagination. Nothing incriminating is scribe on it. Nothing has been mentioned on this piece of paper regarding collection of any capitation fees or even the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recorded u/s 131 on 9.11.2007, in which he has stated that whatever was received from the students was reflected in the books of account. This statement confirms the contention of the assessee that some well wishers were giving donations which were duly received and reflected in the books of account. In fact, the statement of Dr.N.M.Veeraiyan was recorded u/s 131 on 9.11.2007 which has also been made a basis for this addition. He was not examined u/s 132(4) of the Act. A statement made u/s 131 cannot be equated with a statement recorded u/s 132(4) of the Act. A statement recorded u/s 132(4) is a valid and relevant piece of evidence but a statement recorded u/s 131 is not so relevant. Nevertheless, even a statement recorded u/s 132(4) c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions in support of this view. 10. We are not convinced with the ld.DR that the letter dated 26.8.2003 written by the Director of Medical Education/Chairman, ITA 99&100/11 204 & 205/11 :- 13 -: Grievance Committee alleging that the assessee was charging excess fee against the prescribed fee structure would prove the receipt of capitation fees by the assessee particularly when this is a search case and nothing was found during search to support this allegation. The decisions of Hon'ble Supreme Court in the case of CIT vs Durgaprasad More, 82 ITR 540 and Sumati Dayal vs CIT, 214 ITR 801, which speak about human probabilities and realities which have to be taken into consideration while dealing with income-tax matters. In fact, this is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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