TaxTMI 
TaxTMI 
2022 (4) TMI 1173
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....Society established under the Bombay Public Trust Act, 1950. It was founded in the year 1993 with the objects of imparting the education. The appellant society is also registered u/s. 12A of the Income Tax Act, 1961 ('the Act'). It is running several Colleges i.e. it has got 12 Campuses and 97 Institutions in the State of Maharashtra. 4. A search and seizure operations were conducted under the provisions of section 132 of the Income Tax Act, in the premises of the appellant society on 06.08.2013. As a result of search and seizure action, several documents, loose papers had been found and seized. According to the Assessing Officer, these loose sheets indicated collection of capitation fees for admission of the students under Management Quota in the various institutions of the appellant society. The details of seized assets and documents found unearthed as result of search and seizure operations as set out by the AO vide page no. 2 of the assessment order as under:- Sr. No. Particulars of Premises with address Cash (in Rs.) Jewellery (valued in Rs.) Seized / impounded documents. (Number mentioned in bracket is digital seized material) ....
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....t and the Assessing Officer completed the assessment u/s. 143(3) of the Act vide order dated 30.03.2016 for the assessment year 2014-15 at total income of Rs. 112,31,71,443/- bringing to tax the capitation fees collected denying the exemption of income u/s. 11 of the Act and taxed the total income at maximum marginal rate of tax. While doing so, the Assessing Officer had brought to tax the excess income of expenditure of Rs. 89,65,46,443/- and unaccounted capitation fees of Rs. 22,66,25,000/-. The factual matrix of the case leading to the above additions is as under: There was a search and seizure operations conducted u/s. 132 of the Act on 06.08.2013. As a result of search and seizure operations, the cash amounting to Rs. 17,97,700/- was found. Out of which, the cash of Rs. 13,64,000/- was seized and certain documents were impounded as set out by the Assessing Officer in para 1 of the assessment order (extracted supra). During the course of assessment proceedings, the Assessing Officer had analyzed the seized materials and also considered the statements recorded by the Investigation Wing of the Department from three persons u/s. 132(4) of the Act and had come to conclusion that....
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....e of admission agent xii. Digital Back-up of Phone/SMS a) SMS From Dr. Garde's Mobile phone number b) SMS Back up From Shri. Arvind Deshpande's Mobile phone number - 9881000780 xiii. Statements recorded in support of finding of Capitation Fees Collection by STES : Statements of Dr. Janardan Garde, Shri. Arvind Deshpande and Shri. Sharad Bhosale." 8. The Assessing Officer had analyzed the notings found on the Application Forms of the students admitted under Management Quota. He also set out the procedure adopted for admission of the students under Management Quota as well as the modus operandi adopted for collection of capitation fees vide para 4 of the assessment order. (For the sake brevity of the order we chosen not to reproduce the order). The Assessing Officer also reproduced the scanned images of the notings on the Application Forms at page 8 of the assessment order. According to the Assessing Officer, these notings were made by one Shri Arvind Deshpande, who was the Principal of Smt. Kashibai Navale Engineering College, Pune, an institution runs by the appellant society, another person viz. Shri Sharad Bhosale who was the Account....
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....f capitation fees from the students whose names were mentioned in the chits for admission under the management quota. Shri Arvind Deshpande also decoded the figures found in the loose sheets. The scanned images of notings were also reproduced at page no. 8 of the assessment order. The Assessing Officer also reproduced the statement of Shri Sharad Bhosale, who is an Accounts Officer of the appellant society recorded u/s. 132(4), wherein the said Shri Sharad Bhosale had admitted that the amounts as mentioned by Shri Arvind Deshpande on the notings made in the application forms were received by him and the figures mentioned in the loose sheets represent the amount in 'Lakhs'. The AO also considered the statement recorded from Dr. Janardan Garde u/s. 132(4), who looks after admissions to PG and UG Dental courses under management quota, reproduced at page no. 50, 51, 52, 53 and 54 of the assessment order wherein, the said Dr. Janardan Garde had stated that he was only acting as per the instructions of Shri Maruti N. Navale and he was responsible for negotiation with the students and their parents for capitation fees. He also confirmed that the SMS messages exchanged between Shri....
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....llected at Lonavala Campus of STES from the students admitted under the management quota. The Assessing Officer also highlighted the role played by the admission agent in collection of capitation fees for admission of the students under the management quota. The SMS conversation between the admission agent and Shri Arvind Deshpande were also extracted at page no. 38 and 39 of the assessment order, which clearly indicates that the appellant society had been in the habit of collection of the capitation fees for admission of the students under the management quota. The search and seizure operations were also conducted in the residential premises of one of the admission agents, namely, Shri Surendra Nagar. During the course of said search and seizure operations, the loose papers containing 33 pages were found. The loose papers are in handwriting of Shri Arvind Deshpande. The scanned image of one of the loose papers is also reproduced at page no. 41 of the assessment order. The statement of said Shri Surendra Nagar was also recorded u/s. 132(4) of the Act wherein, he had clearly admitted that he was working as an admission agent for the appellant society in coordination with Shri Arvind....
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....gement quota in various institutions and quantified the capitation fees at Rs. 5223.85 lakhs during the period commencing form financial year 2008-09 to 2013-14 under consideration as per working set out at page no. 93 and 94 of the assessment order. 14. The Assessing Officer had further proceeded to hold that the capitation fees so collected by the appellant society was siphoned off by the President of the appellant society, namely, Shri Maruti N. Navale. According to the AO, the funds so siphoned off by Shir M.N. Navale were introduced by him in the accommodation bills for jewellery sale and cash deposit of Rs. 3,00,84,382/-. The Assessing Officer further held that the capitation fees so collected by the appellant society was siphoned off by another family members who are specified persons under the provisions of section 13(1)(c) of the Act, Accordingly, the Assessing Officer invoked the provisions of section 13(1)(c) r.w.s. 13(2)(b) by holding that Shri Maruti N. Navale, President/Chairman, Smt. Sunanda M. Navale, Secretary, Shri Rohit M. Navale & Ms. Rachana M. Navale, Vice Presidents are using the property of the appellant society for the residential purposes without compen....
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....ails/submissions made on behalf of the appellant society, the ld. CIT(A) confirmed the findings of the Assessing Officer that the appellant society had been accepting the cash donations or capitation fees outside the books of accounts towards admission of the students under the management quota in the various institutions run by the appellant society. The ld. CIT(A) also confirmed the findings of the Assessing Officer that the capitation fees so collected by the appellant society had been siphoned off by the President of the appellant society, namely, Shri Maruti N. Navale for his personal enrichment. The ld. CIT(A) also enhanced the quantum of capitation fees to Rs. 5726.60 lakhs. The ld. CIT(A) also confirmed the findings of the Assessing Officer that the appellant society had violated the provisions of section 13(1)(c) of the Act. However, as regards to the interest paid to M/s. M.N. Navale Investment and Finance Ltd., the ld. CIT(A) returned the findings that it does not amount to violation of provisions of section 13(1)(c) of the Act. As regards to the exemption u/s. 11 of the Act, ld. CIT(A) upheld the action of the Assessing Officer withdrawing the exemption claimed u/s. 11 ....
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....hosale and Dr. Janardan Garde goes to prove the fact that these persons had given false statements and, therefore, it is submitted that the statements of above three persons should be completely ignored. In the absence of evidentiary value of the statements from these three persons, there is no corroborative evidence to conclude that the appellant society had collected capitation fees. The appellant society also submitted that these three persons, namely, Shri Arvind Deshpande, Shri Sharad Bhosale and Dr. Janardan Garde are shifty witnesses, proved by the fact that the Department had issued a prosecution notice u/s. 277 as they made false statements. Thus, it is contended that the Assessing Officer cannot rely on the statements of shifty witnesses in judicial proceedings, once is false is always is false relying on the decision of the Hon'ble Calcutta High Court in the case of Amal Kumar Chakraborty vs. CIT, 207 ITR 376 (Cal. - HC). Thus, it was submitted that the statements of above said three persons have no evidentiary value in the present proceedings. In the absence of evidentiary value of the statements from these three persons, the loose papers found are merely dumb paper....
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....ue, inasmuch, as the Assessing Officer had not provided opportunity of cross-examination to the appellant society. Finally, it is submitted that there was no allegation that the appellant society had violated the provisions of the Maharashtra Educational Institution (Prohibition of Capitation Fees) Act, 1987. This itself is a testimony to the allegation made by the Assessing Officer. (D). Without prejudice to the above, it is submitted that if the statements of Shri Arvind Deshpande, Shri Sharad Bhosale and Dr. Janardan Garde recorded u/s. 132(4) are to be believed, it would only mean that they collected the capitation fees for their personal enrichment. It is further fortified by fact that even the Central Government had been stepped into control the corruption in the private sector and the Lokpal and Lokayukta Act passed in the year 2013. In the said Act, the office bearers of NGO's have been treated as public official for the purposes of the Act. As regard to the exemption u/s. 11 of the Act, the ld. AR submitted that in a case addition on account of receipt of capitation fees is sustained, denial of exemption u/s. 11(2) be restricted to the addition on account of receipt....
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....39;s institutions under his/her sole signature or jointly with Secretary or Vice President or any other person authorized by the Managing Council, n. Mr. M.N. Navale and his wife Mrs. Sunanda Navale have stood as guarantor for the loans obtained from various banks in their individual capacities for the benefits of the appellant." (F). Thus, it was contended that providing rent free accommodation by any standard cannot be considered as undue benefit passed on to Shri Maruti N. Navale. In support of this, the ld. AR relied upon the following decisions:- (i) NH Kapadia Education Trust, 136 ITD 111. (ii) 21st Society of Immaculate Conception, 241 ITR 193. (iii) Foundation for Social Care, 37 taxmann.com 389. (iv) Manockjee Cowasjee Petit Charities, 21 taxmann.com 456. Thus, it is submitted that there is no violation of section 13(1)(c) of the Act on account of rent free accommodation provided to Shri Maruti N. Navale alleged by the Assessing Officer. As regards to the violation of provisions of section 13(1)(c) of the Act on account of salary paid to Shri U.Y. Pawar, who was admittedly working for a company like JSAPL as the amount ....
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....erse testimony was given. However, it is only one student, namely, Ms. Mrinalini Patankar had admitted the payment of capitation fees in cash. However, the said Ms. Mrinalini Patankar and her father Shri Sudhir Patankar had expressed their insecurity for their lives through emails sent by them to the Assessing Officer on 26.03.2016. It is submitted that the Assessing Officer's action of not considering the statements recorded from the students and their parents should be considered in the backdrop of the fact that the students and their parents, who had paid the capitation fees for participated in this mutually collusive transaction of payment of capitation fees. V. The evidence brought on record by the Assessing Officer clearly brings out and substantiate role played by (a) Shri Maruti N. Navale, Founder and President of the appellant society, (b) Shri Arvind Deshpande, Director and Principal, (c) Dr. Janardan Garde, Professor and HOD, Dental College and (d) Shri Sharad Bhosale, Accounts Officer. Even the statements recorded u/s. 132(4) of the Act had clearly confirmed the factum of receipt of capitation fees by the appellant society. VI. The statements which....
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....ts cannot be termed as "dumb documents". X. As regards to the submissions of ld. AR that if at all capitation fees is collected, it was for the personal enrichment of the said three persons, namely, Shri Arvind Deshpande, Shri Sharad Bhosale and Dr. Janardan Garde cannot be accepted for the reason that no criminal proceedings were initiated against the said three persons even after the management had come to know of such practice. XI. As regards t the role of Shri Maruti N. Navale, the Founder and President of the appellant society, the ld. CIT-DR drawing our attention to the statements given by Dr. Janardan Garde u/s. 132(4) of the Act wherein, in reply to question no. 6, he categorically stated that the criteria for accepting the capitation fees was set by Shri Maruti N. Navale. The ld. CIT-DR, in view of the following facts:- i) Cash of Rs. 38,12,595/- was found at the residential premises of Sh. M.N. Navale out of which an amount of Rs. 35 lakhs was seized which couldn't be explained satisfactorily by the Sh. M.N. Navale. Out of Rs. 38,12,595/- an amount of Rs. 3419500/- was found in the bedroom of Sh. Rohit Navale who is son of Sh. M.N. Navale an....
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....vi) Similarly in the statement of Sh. Deshpande, he has categorically confirmed at oath that Sh. M.N. Navale is final authority in deciding upon the admission under MQ/IQ. vii) Noting made by Sh. M.N. Navale on the rate-list of PG admission of dental college, especially in the case of student Sh. Viral Gada earmarking two installment of Rs. 37 lakhs and Rs. 10 lakhs each with date and signature is more than speaking evidence of Sh. M.N. Navale's involvement in finalizing the quantum of capitation fee and getting it executed through accountant. viii) There are numerous incidents wherein Sh. M.N. Navale has received recommendation letters from MLA, MP, ministers and eminent personalities seeking concession in donation to be paid. Many such letters were seized during search action which have been processed further by Sh. M.N. Navale by passing on due instruction to Sh. Bhosale." XII. The ld. CIT-DR submits that Mr. M.N. Navale is key person behind the scheme of collection of capitation fees and he is final authority in deciding the quantum/concession for the capitation fees. He also submits that the statement given by Shri Surendra Nagar who is alleged t....
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....essment order. On examination of these loose sheets, the Assessing Officer found out that the appellant society had been indulging in the collection of the capitation fees from the students for admission under the management quota in various courses in the institutions run by the appellant society. The case setup by the Assessing Officer against the appellant society is that Shri Maruti N. Navale, the President of the appellant society decides the broad framework and Shri Arvind Deshpande, Principal and Director of the appellant society decides the rate of donations for a particular course after negotiation with the admission seekers. Once the rate of donation is finalized, the details of student's name, courses, college and the amount of capitation fees that should be collected from such students is communicated to Shri Sharad Bhosale, who is Accounts Officer of the appellant society. After completion of the negotiation, these students are directed to meet Shri Sharad Bhosale for depositing the capitation fees in cash. In the meantime, Shri Sharad Bhosale was informed about by internal system i.e. either oral or through notings in the chits/papers of the amount to be collected....
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....eipt was issued. He also confirmed that SMS messages received on Mobile No. 9822001404 are only regarding the receipt of the capitation fees. In addition to above, the Assessing Officer also brought on record corroborative evidence in the form of evidence showing refund of the capitation fees upon cancellation of admission under the management quota and recommendation letters from various important VIPs urging waiver/concession in donation of capitation fees and also exchanges digital backup of Mobile Phone's SMS from Dr. Janardan Garde and Shri Arvind Deshpande and also statement recorded from the admission agent, namely, Shri Surendra Nagar who had admitted in the statement recorded u/s. 132(4) of the Act that he earned commission income for admission under the management quota and by paying the capitation fees. These notings on the loose sheets/papers clearly indicates that the appellant society had been indulging in the collection of capitation fees for admission of the students under the management quota. The main contention of the appellant society is that the statements recorded from three persons u/s. 132(4) have no evidentiary value in view of the fact that the said st....
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....otings found in the loose sheets, as the author of the loose sheets have admitted the contents found in the loose sheets and also decoded the figures found in the loose sheets. In the circumstances, the contention that the loose sheets are merely the dumb documents have no evidentiary value cannot be accepted. Even the loose sheets also come within the ambit of the documents as defined u/s. 292C of the Income Tax Act. The Hon'ble Madras High Court in the case of M. Vivek vs. DCIT, 432 ITR 53 following its earlier decision in the case of CIT v. T. Rangroopchand Chardia, 241 Taxman 21 held as follows vide para 34 of the judgement:- "34. With regard to the evidentiary value of loose sheets is concerned, section 132(4) of the Income-tax Act, permits the authorised officer to seize books of accounts and other documents. The judgment relied upon by the learned Counsel for the petitioner in the case of V.C. Shukla case (supra), and others reported in 1998 (3) SCC 410, has no bearing for the case on hand, as that case was dealing with a criminal proceeding involving criminal conspiracy under section 120-B of IPC and further, it was dealing with "books of accounts". Whereas, in....
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....urning Officer, AIR 1977 SC 1726-27]. In the light of this above legal position, the statement voluntarily made by the assessee could form the basis of assessment. 27. Now, we shall deal with the contention made on behalf of the appellant society that no evidentiary value can be attached to the statements made by said three persons u/s. 132(4) of the Act in view of the affidavits filed on 21.04.2014 before the Assessing Officer by the said three persons. The said affidavits are claimed to be retraction statements from the said three persons. Now the question that arises for consideration is under what circumstances, the retraction statement can be given the credence. The Hon'ble Rajasthan High Court in the case of Bannalal Jat Construction (P) Ltd. vs. ACIT, 106 taxmann.com 128 after referring to the series of decisions laid down that (i) the retraction should be made as soon as possible and immediately after statement has been recorded (ii) the retraction should be supported by duly sworn affidavit and statement through convincing evidence the assessee could demonstrate that the earlier statement was incorrect and (ii) whenever pleadings were made that to effect that the ea....
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.... statement is incorrect through cogent material. In this connection, we rely upon the decision of the Hon'ble Rajasthan High Court in the case of PCIT vs. Shri Roshan Lal Sancheti in Income Tax Appeal No. 47/2018 dated 30.10.2018 wherein, the Hon'ble High Court after referring to the several decisions held as follows:- "This court in CIT, Bikaner Vs. Ravi Mathur, supra, which judgment has been relied by the ITAT in the present case, after considering catena of previous decisions, held that the statements recorded under Section 132(4) of the IT Act have great evidentiary value and they cannot be discarded summarily and cryptic manner, by simply observing that the assessee retracted from his statement. One has to come to a definite finding as to the manner in which the retraction takes place. Such retraction should be made as soon as possible and immediately after such statement has been recorded by filing a complaint to the higher officials or otherwise brought to the notice of the higher officials by way of duly sworn affidavit or statement supported by convincing evidence, stating that the earlier statement was recorded under pressure, coercion or compulsion. We d....
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....otice that the AO in the Assessment Order observes:- "Regarding the amount of Rs. 44.285 lakhs, it is now contended that the statement u/s. 132(4) was not correct and these amounts are in ITA No. 720/JP/2017 M/s. Bannalal Jat Construction Pvt. Ltd., Bhilwara vs. ACIT, Central Circle-Ajmer thousands, not lakhs i.e. it is now attempted to retract from the statements made at the time of S & S operations." Therefore, what we gather from the Assessment Order and on perusal of the above finding that the retraction was at the stage when the assessment proceedings were being finalized i.e. almost after a gap of more than an year. Such a so-called retraction in our view is no retraction in law and is simply a self-serving statement without any material." The judgment of the Delhi High Court in CIT Vs. Sunil Aggarwal, supra, relied on by the assessee does not in any manner extend any assistance to him because that was a case in which the court found that the assessee, apart from retracting the statement, also discharged the onus on him through cogent material to rebut the presumption that stood attracted in view of the statement made under Section 132(4) of the IT ....
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.... surrender had been made at the time of search cannot be held to be bad. The Tribunal, thus, erred in concluding otherwise. The Tribunal, therefore, was not justified in reversing the order of the Assessing Officer which was affirmed by the Commissioner of Income-tax (Appeals) also." The Punjab and Haryana High Court in Bachittar Singh Vs, Commissioner of Income-Tax, supra, in para 7 of the report, held as under:- "7. It is not disputed that the statement was made by the assessee at the time of survey, which was retracted on May 28, 2003, and he did not take any further action for a period of more than two months. In such circumstances, the view taken by the Tribunal that retraction from the earlier statement was not permissible, is definitely a possible view. The mere fact that some entries were made in a diary could not be held to be sufficient and conclusive to hold that the statement earlier made was false. The assessee failed to produce books of account which may have been maintained during regular course of business or any other authentic contemporaneous evidence of agricultural income. In the circumstances, the statement of the assessee could certainly be a....
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.... as the documents seized would come within the purview of evidence under Section 158(BB) of the Income-tax Act read with Section 3 of the Evidence Act and Section 131 of the Income Tax Act. Based on the above finding, it was also held that such evidence would be admissible for the purpose of block assessments too. The explanation to Section 132(4) of the Income Tax Act was also noticed by the Division Bench to further emphasise that the evidence so collected would be relevant in all purposes connected with any proceedings of the Income Tax Act." The Allahabad High Court in Dr. S.C. Gupta Vs. Commissioner of Income-Tax, supra, in para 7 of the report, held as under:- "7. As regards the assessee's contention that the statement having been retracted the Assessing Officer should have independently come to a conclusion that there was additional income as sought to be assessed and that there was no material to support that there was such income, this contention in our view is not correct. As held by the Supreme Court in Pullangode Rubber Produce Co. Ltd. v. State of Kerala, (1973) 91 ITR 18 an admission is an extremely important piece of evidence though it is not co....
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....in such business, various expenses have been inflated and shown in the books of accounts, and that the income so generated on account of such inflation in expenses is represented in the form of cash was found at his residence. This undisclosed income belonged to his company M/s. Bannalal Jat Construction Pvt. Ltd. In response to question no. 11 wherein he was asked to provide any other explanation which he wishes to provide, he submitted that pursuant to search operations where various documents, loose papers, entries, cash, investment, advances and individual expenditure details have been found and taking all that into consideration, he surrendered Rs. 4,01,43,210/- as his undisclosed income. He also categorically stated that the said disclosure is in the hands of M/s. Bannalal Jat Construction Private Limited in respect of unexplained cash amounting to Rs. 1,21,43,210/- and Rs. 2,50,00,000 and Rs. 30,00,000/- totalling to Rs. 2,80,00,000 in his individual capacity." In view of the law discussed above, it must be held that statement recorded under Section 132(4) of the Act and later confirmed in statement recorded under Section 131 of the Act, cannot be discarded simply b....
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....d material evidence that the statement was incorrect. Therefore, the statement made under Section 132(4) of the Income Tax Act, 1961 has a strong evidentiary value and is binding on a person, who makes it." 29. Applying the above legal principle to the facts of the present case, we have no hesitation to hold that the so called retraction statements cannot be given any credence, on the other hand, the statements given by three persons named above u/s. 132(4) of the I.T. Act carries more evidentiary value and cannot be discarded. 30. Further, the Assessing Officer also brought corroborative evidence in the form of the evidence showing refund of capitation fees, recommendation letters given by VIPs of the locality seeking waiver/reduction in the capitation fees/donations, exchange the SMS messages between Shri Arvind Deshpande and Shri Sharad Bhosale and Dr. Janardan Garde and admission agent, Shri Surendra Nagar. This corroborative evidence remains uncontroverted by the appellant society. Thus, there is a conclusive evidence brought on record by the Assessing Officer to hold that the appellant had been indulging in collection of capitation fees from the students at the time of ....
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....ent of the appellant society for his personal enrichment. The President of the appellant society had adopted a modus operandi by which by forming non-juridical organization with object of collection of capitation fees for the admissions under the management quota for the benefit of persons managing the appellant society and, therefore, it can be safely concluded that the appellant society was formed for the purpose of personal gain, it cannot be said to be an association formed with the object of charitable purpose as held by the PRIVY COUNCIL in the case of All India Spinners' Association vs. CIT, 12 ITR 482 reiterated by the Hon'ble Supreme Court in the case of Director of Income-tax vs. Bharat Diamond Bourse, 215 ITR 280 wherein, the Hon'ble Apex Court held that when specified person in the present case, President of the appellant society because of the position as a trustee, misuses his powers by lending himself or taking away the income or the funds of the trust, then it tantamount to breach of the trust indicating that the trust was formed for a personal gain and, therefore, it cannot be said that the objects of the appellant society are charitable and, therefore,....