TaxTMI 
TaxTMI 
2018 (6) TMI 884
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....ing provisions of law u/s 147 of the Act only upon the borrowed information without having any of his own satisfaction thereof on the availability of any of the material available with him prior to record reasons, which also the CIT(A) has failed to consider while passing the appellate orders. 3. That the provisions of law invoked u/s 147 is further not legal as tenable because the Assessing Officer did not possess any material on his record which could ever confirm, that only the assessee has paid the donation / capitation fee of Rs. 55 lakhs, in cash at the time of admission of his son in PG Course to Santosh Medical College, Ghaziabad, against whom the proceedings have been invoked / initiated under section 147 of the Income Tax Act, 1961. 4. That the order passed by the Assessing Officer were also frivolous and vexatious, therefore, not tenable, because of getting and granting the approval by the Addl. CIT, Range-56 on a mechanical manner u/s 151 of the Income Tax Act, 1961 as only putting 'YES', which the Ld. CIT (Appeals) has further not appreciated while adjudicating the appeal of the appellant. 5. That the order passed are further not legal becaus....
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....in cash as donation / capitation fee to Santosh Medical College, were never confronted to the appellant for its rebuttal thereof prior to pass the orders, as such the orders passed are unconstitutional, having no locus standi under the law. 12. That the orders passed are further illegal because of drawing inference only on the photocopies of the material if any claimed / purported to have been received by the Assessing Officer from the office of DI (Inv), Delhi, after recording the reasons, without confirming to its bonafide and genuineness thereof. 13. That the orders passed u/s 143(3) / 147 of the Income Tax Act, 1961, are further not tenable because the Assessing Officer was not having his proper jurisdiction to decide this case. 14. That the initiation of penalty proceedings u/s 271(l)(c) of the Act, is also illegal, as such not tenable. 15. That charging of interest u/s 234B Income Tax Act, 1961 is also illegal as against the law and to the facts of the case. " 3. The assessee in his appeal has mainly challenged the action of the learned Assessing Officer in re-opening the assessment under section 147 of the Income Tax Act and further con....
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....d Rs. 55 lakhs as alleged by the learned Assessing Officer. It was further stated that there is no evidence that assessee has paid any sum for capitation. The learned CIT (Appeals) rejected the contention of the assessee. According to him, there was a definite information from the Investigation Wing, therefore, the re-opening is made on the definite information. He further stated that as assessee has not filed any return of income, there is no occasion available with the Assessing Officer of making any verification. With respect to the non-application of mind, he held that the assessee has paid Rs. 55 lakhs which is not disclosed in his return of income or not as per his known sources of income. Therefore, the reason to belief of the Assessing Officer is correct. Regarding satisfaction of the higher authorities, he held that satisfaction is duly recorded in view of complete details available with the Addl. Director of Investigation. On the merits of the case he held that the name of the son of the assessee appears at Serial No. 117 wherein on 03rd February, 2010 a sum of Rs. 55 lakhs was paid for his admission in MD Course. The details are available in the chart submitted by Mr. P.....
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.... Assessing Officer in the letter that assessee has paid Rs. 70 lakhs for the admission of his son. The learned Assessing Officer has reason to believe that income of the assessee has escaped assessment. With respect to the merits he submitted that copy of the statement was given to the assessee and there is no request of cross examination. He, therefore, submitted that assessee does not have any case on the merits. He supported the orders of the lower authorities. 9. We have carefully considered the rival contentions and also the orders of the lower authorities. The assessee is an Individual, who filed his return of income under section 139(1) of the Act at Rs. 1,52,100/-. During the course of search, under section 132 of the Act on 27.06.2013 on Santosh Group of Institutes and Dr. P. Mahalingam, certain documents were seized. The documents revealed receipt of donation over and above the regular course fees. Dr. P. Mahalingam, in his statement under section 132(4) has admitted the receipt of un-accounted money. From those papers it was found that assessee's son, Dr. Neeraj Goel, who is pursuing MD course in that institute on 3.02.2010 has paid Rs. 15 lakhs as regular fees and Rs....
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....eceived from the Dy. Director of Income Tax, Investigation, and based on that information he stated that he is satisfied that the fee paid of Rs. 70 lakhs in cash is assessee's unexplained income from undisclosed sources. According to the provisions of section 147 of the Income Tax Act if the Assessing Officer has reason to believe that income has escaped the assessment then only he can re-open the assessment. The reason has to be of the assessee and cannot be borrowed one. The Hon'ble Delhi High Court in para No. 15 in Signature Hotels Pvt. Ltd. Vs. ITO (supra) has held that there is no reference to the document or statement in this case except the letter of the Investigation Wing, which has been quoted in the reasons. The Annexure also does not show prima facie or establishes nexus for link which discloses escapement of income. Further the Assessing Officer did not apply his own mind to the information and examined the basis and material or the information. The Addl. Commissioner also granted his approval mechanically. The facts are similar to the facts before the Hon'ble Delhi High Court. The Hon'ble Delhi High Court then held that the reasons do not satisfy the requirement of s....