TMI Blog2016 (7) TMI 1620X X X X Extracts X X X X X X X X Extracts X X X X ..... this statement can be used, but I am of the view that the statement recorded of the some persons is in their individual capacity but cannot be used against the assessee. Therefore, this will not serve the purpose for making the addition in the hands of the assessee. Moreover, the assessee s books of accounts are subject to audit. The assessee also denied to have made any payment then unless some incriminating material is found from the medical college, no addition can be made - Decided in favour of assessee. - ITA No.214/Ind/2016 - - - Dated:- 4-7-2016 - Shri D.T. Garasia, Hon ble Judicial Member Appellant by Shri S.N. Agrawal Respondent by Shri Mohd. Javed ORDER This is an appeal preferred by the assessee against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment and after obtaining approval issued notice u/s 148 of the Act. Being not satisfied with the explanation of the assessee, the Assessing Officer treated the amount of ₹ 15 lacs to be given out of undisclosed sources and added the same to the total income of the assessee. Felt aggrieved, the assessee approached the learned CIT(A) but failed. Now the assessee is in appeal before the Tribunal. 4. Before me, the learned counsel for the assessee submitted that there was no reason with the Assessing Officer to believe that the income has escaped the assessment and as such the notice u/s 148 was without any basis. He submitted that the Assessing Officer has stated that some of the persons u/s 131 proceedings have accepted that they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, therefore, it may be confirmed. 5. I have heard both the sides. Looking to the facts and circumstances I find that there was survey u/s 133A of the Act 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 amounts were written in code in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee also denied to have made any payment then unless some incriminating material is found from the medical college, no addition can be made. For this proposition, I rely on the decision of the Chennai Bench of the Tribunal in the case of Saveetha Institute of Medical Technical Sciences vs. ACIT; ITA Nos.90 204/Mad/2011 wherein it was observed as under :- 9. We have examined the entire record before us. We have also treaded through the statements in question. Almost identical lines of arguments were taken by both sides as were taken before the ld. CIT(A). We have cogitated the entire facts, evidence and oral submissions in the light of provisions of the Act and related precedents. We have gone through the entire statement of Dr.B.M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategorically denied to have collected any capitation fees. After verification when something is recorded which is contrary to the main body of statement, it cannot be accepted as a voluntary statement. There being no incriminating evidence regarding receipt of capitation fees, particularly when no document was put to Dr.B.Muthukumaran regarding charging of capitation fees, such a statement cannot be made a basis for making such a huge addition. His statement was rather denied by the Managing Trustee/President. Shri T.A.Varadgarajan, Finance Manager also denied the statement of Dr.B.Muthukumaran. In any other case, even one goes by this ITA 99 100/11 204 205/11 :- 11 -: statement, this would not make any meaningful sense. Dr.B.Muthukumaran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncriminating evidence was either found or seized. What was found was a noting giving break-up of number of students who were admitted under different quotas in various courses. In our well considered view, this addition could not have been made at all in the hands of the assessee-trust on the basis of such evidence. Recording of some questions after verification could be viewed as a involuntary statement, extracted from the deponent. In any case, a possibility of such inference is always there. With regard to such statement, the CBDT has issued instructions vide Circular No.286/2/2003-IT, wherein it has been directed that search party shall not obtain confessions. So, the admission made u/s 132(4) by the concerned officer cannot be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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