TMI Blog2023 (9) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... at even in the present case, the assessee has been deprived of with the opportunity of cross-examining Chairman[ Medical College] which was ultimately resulted in making the addition of similar nature, in our opinion, the addition made by the Revenue is in violation of the natural justice which requires to be interfere. By relying the order of the Co- ordinate Bench of ITAT, Delhi, we allow the grounds of appeal of the Assessee and delete the addition made by the AO which was confirmed by the Ld. CIT(A). - SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER For the Appellant : Mr. Sanjeev Jain, CA For the Respondent : Mr. S.L. Anuragi, SR-DR ORDER PER YOGESH KUMAR U.S., JM: These two appeals have been filed by Assessee against the common order passed by the Learned Commissioner of Income Tax (Appeals)-Rohtak [ Ld. CIT(A) , for short], dated 21/01/2020 for Assessment Years 2010-11 and 2011-12 respectively. 2. Since, the issues involved in both appeals are common in nature; hence, they are clubbed together, heard together and disposed off by this common and consolidate order for the sake of convenience. 3. The comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found during the course of search. 6. That the Ld. CIT(A) has erred on facts and in circumstances of the case and in law by not appreciating the fact that the order passed by Ld. Assessing Officer were also wrong and not tenable, because of getting and granting the approval by the Addl. CIT, on a mechanical manner u/s 151 of the Income Tax Act, 1961. 7. That the appellant craves, leave to add, modify and/or delete any of the ground of appeal at the time of hearing of appeal, if deemed necessary, in the interest of justice and equity. 4. There is a delay of 159 days in filing the present appeal and the assessee filed an application for condoning the delay and relied on the order of the Hon ble Supreme Court in suo moto writ petition (Civil) No.3/2020 dated 23/03/2020 wherein the Hon ble Supreme Court has relaxed the limitation period due to Covid-19 pandemic situation. Considering the fact that the order of the Commissioner has been passed on 21/01/2020 and by relying on the order of the Hon ble Supreme Court in suo moto writ petition No.3/2020 dated 23/03/2020, the delay of 159 days in filing the present appeals are condoned. 5. First, we take up the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the sole basis for making the addition which has been confirmed by the Ld. CIT(A) is on the statement of Dr. P. Mahalingam of Santosh Medical College received from DDIT (Inv.) New Delhi and possessed by Ld. Assessing Officer which did not confirmed that the assessee has paid the donation/capitation fee of Rs. 50,00,000/- in cash at the time of admission of his daughter in Santosh Medical College, Ghaziabad, against whom the proceedings have been invoked/initiated u/s 147/148 of the Income Tax Act, 1961. Therefore submitted that, the assessment completed has become invalid. Further submitted that, the assessee has not been given opportunity of cross examination of the said Dr. P. Mahalingam of Santosh Medical College, which violated the principles of natural justice. Even after seeking specific permission, the authorities have failed to secure the person who has given the alleged statement against the assessee. Further, the Ld. Counsel for the Assessee has also relied on the order of the Tribunal in the case of Sulekha Chand Singhal Vs. ACIT in ITA No. 6700/Del/2019 and submitted that the Assessee s case is squarely covered by the said order of the Tribunal. Therefore, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,00,000 5,000 07.05.2010 70228 - - - 15,000 15,000 15,000 5,000 05.06.2010 0702250 - 5,000 - - 5,000 5,000 - 07.05.2010 100997 - 60,000 - 5,000 65,000 65,000 - 31.05.2011 101056 - - - 20,000 20,000 20,000 - 30.04.2012 01711 - 1,00,000 - - 1,00,000 1,00,000 12. Further the AO has also relied on the statement given by Dr. P. Mahalingam, Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied with the opportunity of Cross-examination wherein the Co- ordinate Bench of the Tribunal has held as under: 6. We have considered the rival submissions. It is a fact that the entire addition is based on the statement made by Dr. P. Mahalingam which were recorded under section 132(4) of the I.T. Act in which, he has admitted to have received donation/capitation fees in cash which was surrendered for taxation. The assessee, however, denied to have paid any amount in cash on account of donation/ capitation fees to Dr. P. Mahalingam or the College in which his son was admitted for MBBS Course. Since the Revenue Department alleged that assessee has paid cash of Rs. 27 lakhs as donation/capitation fees, therefore, onus is upon A.O. to prove through cogent and reliable evidence that assessee has in fact paid cash by way of donation of capitation fees to the Medical College and Dr. P. Mahalingam. In the present case, the entire case is set-up on the basis of statement of Dr. P. Mahalingam recorded during the course of search under section 132(4) of the I.T. Act, 1961, in which, he has admitted to have received donation/capitation fees in cash. However, the assessment order is si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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