TaxTMI 
TaxTMI 
2021 (10) TMI 739
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....titled to exemption u/s 11 in view of the face that the assessee was charging capitation fees from the students seeking admission in MBBS/PG courses thereby indulging in commercializing the education and thus violated the objects for which it was created. 4. On the facts and circumstances of the case, the CIT (A) has erred in deleting the addition of Rs. 10,16,64,790/- of unaccounted receipts. 5. On the facts and circumstances of the case, the CIT (A) has erred in relying on the order of ITSC, when the order of ITSC itself is being contested on account of perversity of facts. 6. On the fact and circumstances of the case, the CIT (A) has erred in holding that the impounded documents don not pertain to trust and hence the trustee Mr. Mahalingam was justified in declaring additional income on that basis. 7. On the fact and circumstances of the case, the CIT (A) has erred in holding that Mr. Mahalingam has declared income on the basis of these documents, when he has not been able to establish direct nexus between entries in the documents and calculation of additional income. 8. The appellant craves leave to add, amend any/all the ground of a....
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.... found that group was charging capitation fee for admission in these courses and such fee was not reflected in the returns of income filed. Thereafter reasons were recorded by the ld. Assessing Officer on 7.11.2013 and notice under Section 148 of the Act was issued on 27.11.2013. The approval of the Commissioner of Income Tax was also obtained under Section 151 of the Act. Vide letter dated 26.12.2014 assessee submitted that the return filed originally on 31st October, 2007 may be treated as return of income filed in response to notice under Section 148 of the Act. Consequently, notice under Section 143(2) of the Act was issued on 10.10.2014. The assessee raised objection vide letter dated 24.11.2014. On 02nd February 2015, the objections of the assessee were communicated and disposed of as rejected. Thus assessment proceedings continued. 7. During the course of assessment proceedings, learned Assessing Officer noted that assessee is a trust established on 6.01.1993, Dr. P. Mahalingam is the managing trustee, and Smt. Kuilambal was the settler. Subsequently, the trust deed was amended on 4.03.1996 and the sole object of the assessee was converted to education only. The assessee ....
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....id 9. The learned Assessing Officer noted that the sum of Rs. 117,85,000 is for assessment year 2005 - 06 and further a sum of Rs. 74,651,210/- is already included by the assessee in the income and expenditure account as fees , thus , net unaccounted income of fees not declared in the income and expenditure account works out to Rs. 103,830,790/-. Other contention of the assessee were not accepted and learned AO held that amount of fees not declared in the return of income works out to Rs. 10,38,30,790/-. The ld. Assessing Officer thereafter made an addition of Rs. 10,38,30,790/- to the total income of the assessee i.e. excess of expenditure over expenditure of Rs. 10,80,98,671/-. The learned assessing officer further held that exemption u/s 11 of the income tax act to assessee is also not allowable and the income of the assessee was assessed in the status of Association Of Persons. Learned AO assessed assessee at a total income of Rs. 21,19,29,461/- by order under Section 143(3) read with Section 148 of the Act dated 19th March 2015. 10. The assessee aggrieved with the order of the ld. Assessing Officer preferred an appeal before the CIT (Appeals)-24, New Delhi. The assessee ....
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....r challenged that the re-assessment is also required to be quashed as the satisfaction recorded by the CIT, C-1, New Delhi, is mechanical and without application of mind. It further states that the re-assessment further suffers from jurisdictional error, as it does not meet the requirement of first proviso to Section 147 of the Act. 14. The ld. DR vehemently objected to the invocation of Rule 27 of the ITAT Rules stating that if assessee is so aggrieved by upholding the re- assessment proceedings by the first appellate authority, it should have filed an appeal. 15. We have carefully considered the contentions of the parties and find that Rule 27 provides that though the respondent might not have appealed against on any of the grounds decided against him, he can support the order of the learned CIT - A . Honourable High Court in case of Sanjay Sawhney vs. PCIT in ITA No. 834/2019 dated May 18, 2020 has held that: i. Rule 27 does not mandate an application to be made in writing, hence oral application cannot be refused. ii. The word 'thereon' used in section 254 (1) implies that the tribunal has to confine itself to the 'subject matter' of appeal only. However....
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.... six assessment years by indirectly by invoking the provisions of Section 147 of the Act on the basis of the material seized during the course of search. He claimed that such action would run contrary to the provisions of Section 153A of the Act. Thus, he submitted that the action of the Assessing Officer of invoking Section 147 of the Act is clear violation of Section 153A of the Act. For this proposition, he relied on following judicial precedents:- i. Cargo Clearing Agency vs. JCIT 307 ITR 1 (Guj); ii. Rajat Shubra Chatterji v. ACIT (ITA 2430/Del/2015) 47 CCH 0135; iii. ACIT v. Arun Kapur - 140 TTJ 249 (Amritsar); iv. Sangeeta Chhabravs ITO (ITA 1853/Del/2017 Dated 21.04.2017) ; v. G Koteswara Rao vs DCIT 64 Taxmann.com 159 (Viz Bench of ITAT); vi. Shri Navratan Kothari Vs ACIT(ITA 425/JP/2017 Dt 13.12.2017); vii. Sushil Gaur and Shelly Agarwal vs ITO in ITA No.1500& 1501/Del/2017 Dated 08.08.2017 reported in 58 ITR 57 (Del); viii. ITO vs Kamlesh Kumar ITA 86/Agra/2017 Dated:31.08.2018; ix. Girish Chandra Sharma vs ITO ITA987/Del/2018Dt:30.11.2018; x. M/s. Saurashtra Color Tones Pvt. Ltd. v....
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....e Act u/s 151 of the Act and referred to column No. 6.1 of the proforma stating that the Assessing Officer mentioned that assessed income of the assessee is Rs. 15,03,47,006/-, but he missed out the consequent appellate orders where ultimately the income of the assessee was assessed at Rs. 21,66,000/-. He submitted that mentioning the incorrect income proves that the Assessing Officer has not examined the returned income of the assessee as well as consequent appellate order and mentioning of such incorrect fact shows non-application of mind both by the Assessing Officer and by the authorities granting sanction. To support his contention, he referred to the decision of the Hon'ble Delhi High Court in Residing Asia PTE Ltd. Vs. DDIT in WPC No. 614/2014 dated 31.08.2017 and passed Cyber City Pvt. Ltd. Vs. ITO in WPC No. 12360/2018 dated 21.05.2019. He further referred to para No. 10 at Page Nos. 18 to 25 of the decision of Omkar Developers Vs. ITO in ITA. No. 6862/Del/2018 dated 11.05.2021. He further referred to the following judicial precedents of the co-ordinate benches to support his contentions:- i. Smt Kalpana Shantilal Haria Vs ACIT W.P.(L) No.3063/2017 dated 22.12.201....
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.... SPJ Hotels P Ltd ITA No.2857/Del/2017, xi. M/s Superior Build well P Ltd ITA No.3301/Del/2017, xii. M/s Superior Technologies P Ltd ITA No.2269/Del/2017, xiii. M/s Shiv Sai Infrastructure P Ltd ITA No.2527/Del/2017, xiv. ITO vs Randeep Investment (P) Ltd ITA No.4365 & 4005/Del/2015 dt: 26.03.2019 xv. Shree Balkrishan Aggarwal Glass Industries Ltd ITA No.5798/Del/2016 dt: 21.09.2020 23. He further submitted that non-application of mind is further evident from the fact that the Assessing Officer failed to consider the important answers given by Dr. P. Mahalingam. He referred to page Nos. 21 to 45 of the Paper book. He stated that Dr. P. Mahalingam never admitted any un-accounted in the hands of the appellant trust, but he has admitted unaccounted receipts in the hands of M/s. Santosh Trust. He further stated that the reasons shown that as per Annexure A-62 to A-64 and the other annexure such as A-58 to A-61 are not pertaining to this year, but to assessment year 2008-09 to assessment year 2013-14. Thus, the recording of the reasons for Annexure A-58 to A-64 is devoid of any merit demonstrates non-application of mind as Annexure A-58 to....
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....ly in granting satisfaction under Section 151 of the Act. He relied on the decision of the Hon'ble Delhi High Court in Symphony Trade Links Vs. ITO (supra) and the decision of the co-ordinate bench in Eminent Computers Pvt. Ltd. Vs. ITO (ITA. No. 6372/Del/2019 dated 24.11.2020. He specifically referred to para Nos. 20 to 23 of the said decision. He further relied on following judicial precedents:- i. Chhugamal Rajpal vs. S.P. Chaliha & Ors. - 79 ITR 603 (SC); ii. Arjun Singh vs Asstt. Director of Income Tax (M.P.) reported in (2000) 246 ITR 363 (MP); iii. CIT vs M/s S.Goyanka Lime and Chemicals Ltd 231 Taxman 0073 Dated 15.10.2014 (MP) approved by Hon'ble Supreme Court in 64 taxmann.com 313 (SC). iv. Pr. CIT vs. N. C. Cables Ltd 391 ITR 11 (Del) v. Maruti Clean Coal& Power Ltd Vs ACIT WP(T) No.346 of 2017 Dated 03.01.2018 (Chattisgarh High Court); vi. German Remedies Ltd. vs. Dy. CIT (2006) 287 ITR 494 (Bom); vii. United Electrical Company PLtd. vs. CIT & Ors(2002) 258 ITR 317 (Del)"; viii. Central India electric Supply Co. Ltd. Vs .ITO, 333 ITR 237 (Del); 26. He further submitted that the first proviso to Sectio....
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....ked by proper material referring to page No. 18 of the Paper book. She Referred to the decision of Honourable Delhi High court in case of Experion Developers Limited as well as decision of Synfonia Trade link where the earlier decision is upheld. c. re-opening has been made on the statement of Mr. Mahalingam with respect to the several discrepancies pointed out by the ld. AR in the figures. She submitted that these are figures given by investigation wing , but not absolute figures based on which re-opening has been made. The figures are given by the Investigation Wing. The ld. DR supported her argument by the decision of Aas Paas Multimedia Ltd. of Hon'ble Gujarat High Court 405 ITR 512 , Ankit Aggarwal of Hon'ble Rajasthan High Court and Mona Mahesh BHojani [2017] 83 taxmann.com 363 (Gujarat) of Hon'ble Gujarat High Court. d. at the time of recording of the reasons, the Assessing Officer is not required to correctly state the quantum of escaped income otherwise what is left to be done at the time of the assessment. It was further stated that the reasons are required to be noted by preponderance of probabilities and it cannot be 'cast iron' figures at the time of ....
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...., it was submitted that reason given by the AO is in para 6 at page 7 of assessment order, as per which, the assessee respondent is not engaged in charitable activities and activities of the assessee trust is commercial in nature. The Ld AO found that the appellant has been charging different amount from different students on the basis of the bargaining with the students or his/her parents. The AO has confirmed that sec 2(15) are not satisfied in the present case. The respondent trust is duly registered u/s 12A of the Act as charitable trust, registration has been granted by the CIT from 13.01.1995 (PB 103), and the same has not been withdrawn till date. So far as the application of sec 2(15) is concerned, it is submitted that as per proviso to sec 2(15), the applicability of this section is restricted to the entities pursuing any other objects of public utility implying that the institutions engaged in education/medical relief are not within the ambit of the above proviso. The CBDT Circular No.11/2008 dt: 19.12.2008 in para 2.1 clarifies that "The newly inserted proviso to section 2(15) will not apply in respect of the first three limbs of section 2(15), i.e., relief of t....
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....ission order dt: 27.11.2015 (PB 104-133) and also acknowledgment of the fact that in para 8 to 8.3 at pages 117-118 that the registration u/s 12AA and notification under 10(23C)(vi) has been granted and the same has not been withdrawn. Withdrawal of exemption u/s 11 is a case of judicial in-discipline and against the principle of consistency. The reason being the lower authorities i.e. DCIT are not competent to revisit the issue of grant of exemption u/s 11 of the Act based on the registration u/s 12A granted by the higher authorities i.e. CIT. The Ld CIT(A) has rightly followed the circular No.11 of 2008 and proviso to sec 2(15) in para 4.1.4 at internal page 13 and the Hon'ble ITAT order dt: 17.03.2016 in appellant's own case for assessment years including the AY under appeal to allow exemption u/s 11 of IT Act. He referred to para 4.1.5 at internal page 13-14. In the context of sec 11 of IT Act, the Hon'ble Apex Court in case of CIT Vs. Andhra Pradesh State Road Trpt. Road Corpn. 159 ITR 1 (SC) have held that a trust or institution may run on commercial lines. If the dominant object is to carry out charitable activities and not to earn profit, the purpose would not loose charita....
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....on may be denied to the assessee trust or institution. No such converse finding has been given by the AO in this case. Respondent also draws support from Circular no.194/16- 17 II(AI) in which the question referred to board is; whether an educational institution existing solely for educational purpose but which shows some surplus at the end of the year is 5 eligible for exemption. The board had replied this question in the following manner: "If the profit of the educational institution can be diverted for the personal use of the proprietor thereof, then the income of the educational institution will be subject to tax. However, there may be cases where the educational institutions may be owned by the trusts or societies to whom the provisions of section 11 may be applicable. Where all the objects of these trusts are educational, and the surplus, if any, from running the educational institution is used for educational purposes only, it can be held that the institution is existing for educational purposes and not for purposes of profit. However, if the surplus can be used for non-educational purposes, it cannot be said that the institution is existing solely for educational p....
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....has been considered by the co-ordinate Bench in ITAT order for AY 2007-08 in ITA No.1477/Del/2011 dt:17.03.2016 in para 8.4 therein and the Hon'ble ITAT has approved the grant to exemption u/s 11 of IT Act as allowed by the Ld CIT(A). Although decision of the Settlement Commission is not for the AY 2007-08 and strictly not binding on authorities for the matters for AY 2007-08 but Ld CIT(A) has followed the above finding in other years but for the sake of consistency, the surplus of 22% is accepted by the Ld CIT(A). A Chart showing the calculation of exemption u/s 11 for the assessment year under appeal after taking into account the seized annexure A-21 (Back Page 114) shows that the ultimate income left after granting exemption u/s 11 is Nil. He therefore submitted that the issue of taxability of the above sum is also correctly decided by the learned CIT - A. In the result he submitted that appellant prays that the reopening of the assessment proceeding is held to be invalid and even otherwise on the merits of the addition the issue is correctly decided by the learned CIT - A. 31. We have carefully considered the rival contentions and perused the orders of the lower authoriti....
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....nancial year 2006 - 07 has been worked to Rs. 196,497,500/- in the case of Maharaj educational trust. The list of Year wise and annexure wise summary of such unaccounted receipt of fee/donation received in cash, worked out on the basis of seized documents is reproduced as Under:- annexure/financial year 2006 - 07 A - 58 21,00,000 A - 59 19,75,000 A - 60 74,51,500 A-61 2,70,61,000 A - 62 13,79,50,000 A - 63 1,39,50,000 A - 64 60,10,000 Total 19,64,97,500 Dr P Mahalingam, in his statement recorded u/s 132 (4) of the IT Act, during the course of search on 27/6/2013 (which continued and concluded on 29.6.2013) admitted the fact in unambiguous terms that the receipts appearing in seized documents/registers were not recorded in the regular books of accounts of the trust and the source of such receipts which were in addition to the regular fees, is in the form of unaccounted fees /donations from various students who are allowed admission in various courses of the institution. In view of the above I have reason to believe that assessee has failed to disclose truly and fully all metal facts in his return of income for a....
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....ed assessment year in case of the trustee Dr P Mahalingam the assessee also offered a sum of Rs. 3 crores which was assessed by order u/s 143 (3) of the act for assessment year 2007 - 08 at the total income of Rs. 30,942,840/-. 36. It is also important to note that assessee has recorded the total fee income of Rs.36,31,73,074 the financial year 2006 - 07 relevant to the assessment year 2007 - 08. According to the objects of the trust, it is established for the sole purpose of providing education through medical, dental, paramedical in para dental colleges located at Chennai and at Ghaziabad. 37. The assessee raised an objection on 24/11/2014 on the issue of notice u/s 148 of the act, which was disposed of by the learned assessing officer by passing an order on 2/2/2015 rejecting all the contentions of the assessee. During the course of reassessment proceedings assessee explained before the learned assessing officer that the fee recorded in the reasons for reopening of Rs. 196,497,500 by the learned assessing officer based on the investigation wing report is incorrectly mentioned and the correct figure is Rs. 149,446,000 the assessee also submitted the detailed reconciliation,....
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.... 60,19,364 Less Amount of project work receipt already added as income of the trust in assessment order passed u/s 143 (3) for the assessment year 2007 - 08 1,70,23,219 Balance of receipts 5,32,52,207 Less amount of expenses of the project work already added as income of the trust in assessment year passed for the assessment year 2007 - 08 and receipts already accounted 2,52,25,116 Net amount of receipts 2,65,27,091 Less Expenses out of the remaining receipts as appears in dSR which also applied in charitable activities 2,65,27,091 Excess if any Nil Therefore, the assessee claimed that there is no unaccounted income required to be taxed in the hands of the assessee. 39. Based on the above was submission made by the assessee, the learned AO verified the claim of the assessee and the seized registers also with the details furnished by the assessee. He also verified these details from the hard disk containing accounts of the assessee seized during the search. (Paragraph number 5 of the assessment order). 40. Therefore the learned ass....
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.... income tax act as the search in the case of the assessee took place on 27/6/2013. He further referred to the provisions of Section 153A of the act, which bars the application of provisions of Section 147 of the income tax act. In the present case, the date of search is indisputably 27/6/2013, therefore the previous six-assessment year covered Under the provisions of Section 153A are assessment year 2008 - 09 to assessment year 2013-14. The assessee has relied upon the plethora of judicial precedents to say that the provisions of Section 147 of the income tax act are bad when there is assessment pursuant to search u/s 153A of the act. We have carefully gone through all the decisions cited before us on this issue by the learned authorised representative do not agree because all those decisions are related to those six assessment years which are covered Under the provisions of Section 153A and not prior to that. In the present case the issue before us is whether, for assessment year 2007 - 08 which is prior to the period of six assessment years covered u/s 153A of the act could be disturbed by invoking the provisions of Section 147 of the act or not. This issue is squarely covered ag....
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....However, in the present case, approval/sanction has been obtained from both, the Addl. Commissioner of Income-tax as well as the Principal Commissioner of Income-tax, which is the appropriate authority for issuance of such sanction, as noted in CIT-8 (Erstwhile CIT-III) v. Soyuz Industrial Resources Ltd. [2015] 58 taxmann.com 336 (Delhi). 42. Further, it is the case of the petitioner that there was no independent application of mind by the sanctioning authorities for according approval. Whilst it is the settled position in law that the sanctioning authority is required to apply his mind and the grant of approval must not be made in a mechanical manner, however, as noted by the Division Bench of the Calcutta High Court in Prem Chand Shah (Jaiswal) v. Asst. CIT [2016] 383 ITR 597 (Cal) ; [2016] 67 taxmann.com 339 (Cal), the mere fact that the sanctioning authority did not record his satisfaction in so many words would not render invalid the sanction granted under section 151(2) when the reasons on the basis of which sanction was sought could not be assailed and even an appellate authority is not required to give reasons when it agrees with the finding unless statute or rules....
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....Commissioner, has not even made such an endorsement. This apart, the endorsement of the Assistant Commissioner of Income-tax should have been indicated to respondent No. 2 if nothing else that there was something amiss when the escaped income is quantified as Rs. 25,95,277 whereas in the order recording reasons, penned by respondent No. 1, the escaped income was quantified as Rs. 26,93,500. 10.5. As noted above, in the instant case, because of the failure on the part of respondent No. 1 to correlate the information received with the ostensible formation of belief by him, respondent No. 2 attempted to connect, via her counter affidavit, that the escaped income with the "suspicious" unsecured loan entries reflected in the assessee's returns for the assessment years 2010-11 and 2011-12. As correctly argued by Mr. Kochar, the counter-affidavit and the submissions made across the bar cannot be used to sustain the impugned actions. The order recording reasons and the order granting sanction should speak for themselves. (See observations made Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 and Mohinder Singh Gill v. Chief Election Commissioner, New Delhi [....
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....w of this objection of the learned authorised representative does not deserve to be considered hence rejected. 47. Now we come to the fact that whether the learned assessing officer has correctly applied his mind to the information found during the course of search for recording of reasons u/s 147 of the act for reopening of the assessment for assessment year 2007 - 08 or not. We fully agree with the contention of the learned departmental representative that the learned assessing officer at the time of recording reasons u/s 147 of the income tax act has to prima facie show his own satisfaction that the income has escaped assessment. He is not obliged to determine the correct amount of the escaped income at the time of recording the reasons. It is also correct that if that is done at the time of recording of the reasons there is nothing further required to be done. However, it is also correct that the reasons recorded by the learned assessing officer should be after application of his own mind on the tangible material made available to him. It is also true that if the learned assessing officer applies his mind to the material based on which is going to reopen the case, the, recor....
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....ch and seizure operation u/s 132 of the income tax act carried out on 27/6/2013. The learned assessing officer has also recorded that the above sum has been disclosed by Dr P Mahalingam in the form of unaccounted income. During the course of assessment proceedings, the sum stated by the learned assessing officer is escaped income gone for a toss. Even the learned assessing officer could not defend that sum. 50. There is one more aspect to this issue. The assessee has been assessed u/s 143 (3) of the act for assessment year 2007 - 08 provide order passed u/s 143 (3) of the act on 31st of December 2009. Therefore, the complete information with respect to the audited accounts, income and expenditure of the assessee was available before the assessing officer. During the course of assessment proceedings when questioned AO himself agreed that assessee has already recorded a sum of Rs. 74,651,210 in the income and expenditure account as fees income. Therefore he reduced the sum of the escaped income recorded in the reasons of Rs. 196,497,500/-. This clearly proves that when the learned assessing officer has recorded the reasons for reopening of the assessment, he did not look at the as....
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.....e. Santosh trust. Despite this fact, the learned assessing officer did not verify this fact that the time of recording of the reasons that how much fees is already recorded by the trust. Therefore recording of the reasons on the basis of these annexure in the case of the assessee there is no reason given by the learned assessing officer that though, those have been stated to be belonging to Santosh trust how they belong to assessee trust. Further, on reading the statement of Mr. Mahalingam does not is also supported the reasons recorded by the AO. This is so because the learned assessing officer has heavily relied on the statement of Mr. Mahalingam to reach at a conclusion that their reason escapement of income. 54. Based on the above observation it is clear that therefore, the correlation between the underlying material and the information, which was available in the balance sheet and income and expenditure account of the assessee, was clearly not made. Therefore the formation of belief by the Income-tax Officer that income of the assessee chargeable to tax had escaped assessment, was unreasonable and irrational, as it could not be related to the underlying information ; somet....
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....at extent. 57. Coming to ground number 4 - 7 of the appeal of the learned assessing officer, the learned CIT - A has deleted the above addition to the extent of Rs. 103,830,790 in paragraph number 4.1.10 of his order as Under:- "4.1.10 I have considered the submissions of the appellant. In the submissions made by the appellant, it does not contest that the register seized as numbers A - 58 A - 64 are indeed fees received registers maintained student wise. The appellant has also not contested the final competition of undisclosed capitation fees of Rs. 103,830,790/-. However, the appellant submits that these seized registers only reflect the receipts and not any expenditure. Various expenditures have also been incurred which are not accounted for. The appellant requested that this expenditure should be allowed. He (it) made the same request before the AO but the AO did not take cognizance of the same. In support of its contention, the appellant points out another seized document annexure A - 21, page 114, which contains unaccounted capitation fees as well as unaccounted expenditure for the assessment years 2007 - 08, 2008 - 09 and 2009 - 10. Honourable settlement commissi....