TaxTMI 
TaxTMI 
2024 (7) TMI 1328
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....ant Trust. 4. The Ld. CIT (A) has erred in confirming the addition of Rs.6,61,00,000/- made by the AO solely based on the statement recorded by the employees from whom the search team has not impounded any books of account, documents, money, bullions, jewellery or any incriminating documents. 5. Ld. CIT (A) has erred in confirming the addition of Rs.6,61,00,000/- made by the AO on the basis of some dumb loose sheets said to have been found in the searched premises during the course of search without appreciating the fact the alleged dumb loose sheets cannot constitute books of account. 6. Ld. CIT (A) has erred in confirming the addition of Rs.6,61,00,000/- made by the AO on the basis of dumb loose sheets which were not in the nature of incriminating documents 7. Ld. CIT (A) has erred in confirming the addition of Rs.6,61,00,000/- made by the AO without appreciating the fact that the alleged contention of handing over amount of Rs.6,61,00,000/- to the management was not supported by any conclusive evidence as has been held by the CIT (A). 8. The Commissioner of Income Tax (Appeals) erred in not considering Form 9A filed by the appellant T....
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....in his place and he continued to carry out the same job done earlier by Mr. Ravindra. During the course of the search proceeding, Mr. Dilip Kumar confirmed that loose excel sheets were maintained by him which were found and seized. Mr. Dilip has written fee receipt transactions on the same sheet in his own handwriting. 2.5 The AO observed that Mr. Dilip Kumar maintained the record of the due fee of the students pursuing their study in medical and dental courses and for those who have gotten admission in management and NRI quota in the college. That the amounts received through banking channel were scribbled down by Mr. Dilip Kumar in pen in front of the particular row which contained the details of the student and there were encircling made in pencil also in some cases. 2.6 During the course of search proceedings, a sworn statement dated 20.02.2021 of Mr. Dilip Kumar was recorded u/ 132 (4) of the Act, in which he AX stated that Mr. Vishwanath Shetty had collected some part of their fee directly and in such cases, he recorded 'pd to V.S' in pencil. Mr. Dilip Kumar categorically admitted that 'Pd to V.S' means cash paid to Mr. Vishwanath Shetty. 2.7 In subse....
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....these loose sheets had the data related to cash collected by the agents. He also mentioned that the students paid cash to agents through whom they got admission and claimed that he had not received the said cash. 2.13 The AO observed that the aforesaid claims were contradictory, and that the role of agents were limited to introducing students to the college and carrying out all the documentation and procedure for admission, and they received commission for the same. The agent had no role post the admission of the students. Therefore, the AO asserted it is highly unlikely that the agents would have received the cash from the students as claimed by Mr. Vishwanath Shetty and no evidence for the claims made were found during the search. Mr. Vishwanath Shetty also claimed that the handwritten figures in the seized materials were nothing but discounts given to students. The AO countered these arguments with evidences in the assessment order and discredited the claim. 2.14 Mr. A.J Shetty is the President of the assessee Trust. He along with his son Mr. Prashanth Shetty looked after the overall functioning of the colleges registered under the Trust. All the decisions were taken by Mr....
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.... management of the trust. It was crystal clear that Mr. Mr. Vishwanath Shetty and Mr. Dilip Kumar had turned hostile by changing their stance and deposition on oath. 2.19 The AO pointed out that even there were contradictions in the statements dated 29.09.2021 and 17.08.2021 deposed by Mr. Vishwanath Shetty and Mr. Dilip Kumar and he specified certain instances to prove the same. Further, the AO stated that the retracting statements given were nothing but an afterthought to cover up the cash received by them from the students. The AO referred to and relied upon many judicial pronouncements to support his action that the statements recorded u/s 132 (4) and 131 of the Act have great evidentiary value and cannot be denied in a summary manner. Hence, the unaccounted cash receipts of Rs.6,61,00,000/- was treated as income of the assessee. 2.20 Further, it is seen from the assessment order that the AO claimed that incriminating materials were found at the search premises with respect to seat blocking and cancellation scam by the assessee. The AO explained the concept of "Stray Vacancies", which were nothing but unallotted seats which are lying vacant after the end of MOP-UP round o....
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....the assessee trust at the maximum marginal rate under section (13) (1) (c) r.w.s 164. 2.26 On analyzing the corroborating evidences found during the search, the AO established that unaccounted cash receipts from students aggregated to Rs. 6,61,00,000/- during F.Y 2020-21 and these receipts were not accounted by the assessee Trust. 2.27 Against this assessee went in appeal before ld. CIT (A) who has confirmed the order of ld. AO with regard to addition of Rs. 6,61,00,000/- and given a partial relief. Once again, the assessee is in appeal before us. 3. First, ground Nos.1 to 7 are with regard to addition of Rs.6.61 Crores on the basis of statement recorded u/s 132 (4) of the Act supported by unsubstantiated documents found during the course of search. 3.1 The ld. A.R. submitted that the Learned CIT (A) erred by acknowledging the addition of Rs. 6.61 crores made by the learned AO solely on the basis of sworn statement and loose sheets found in the possession of employees of the trust, which is not sustainable under law. The Learned CIT (A) also erred in upholding the decision of Ld. AO to tax Rs. 6.61 crores by treating the same as unaccounted cash receipts from students w....
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.... in assesee's Paper book dtd 23-04-2024 in SL No.3 page 95-98. Amount mentioned during this period is Rs. 1,75,50,000 which amounts to around 38% of Rs. 4,57,00,000. When he was in ICU etc how can he take cash. But initially on 20-02-2021 in his statement on oath said to be taken under section 132 (4) of the act, he stated he has received cash, Also stated in Page 58 of the assessment order (In his answer to question No 5), that Mr. Vishwanath Shetty was suffering from Covid-19 for the above period. No corroborative evidence in the seized material: in Para 13 of page 46 of the Assessment Order, the learned Assessing Officer has stated as follows: "There are cases where the search team could not find the other corroborating evidence like cheque leaves, the records maintained by the Mr. Dilip Kumar except the data maintained in loose sheet folder marked as A/AJIMS/02'." 3.3 Thus, he submitted that the learned Assessing Officer himself has stated that there is no corroborative evidence in most of the cases. Apart from that whatever seized (A/AJIMS/02) is loose sheets only. Further, in answer to question no 5 as reproduced in Page 58 of the assessment order, Vishwanath Shet....
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.... giving cash in the case of 33 students. In addition, other students / parents gave sworn statement before the assessing officer, during the assessment proceedings. Section31 of the Indian Evidence Act 1872 states that statements/admissions are not conclusive proof. He relied on various precedents which are kept on record. 4. The ld. D.R. submitted that the above issue based on the seized materials found during the search and the statements recorded from various persons at that time. The AO brought out the relevant evidences recovered from the search premises and analyzed these documents in detail along with the statements recorded from Mr. Dilip Kumar and Mr. Vishwanath Shetty. The seized materials, which are the primary evidences, are unambiguously clear in incriminating the appellant on the collection of unaccounted cash receipts from the students. 4.1 The seized documents clearly showed the name of the students, year of admission, batch, the course admitted to, total fees to be paid, dates, the amount paid in RTGS/other bank modes and other amounts with remarks as to whom they were paid to. The titles of these documents such as "old collection" made the purpose evident an....
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.... 2021-22 to be sustained. 4.4 Further, she relied on the following case laws: (i) Judgement of Hon'ble Supreme Court of India in the case of Video Master Vs. JCIT reported in (2015) 378 ITR 374 (SC), wherein held as under: "A search and seizure operation was carried on at premises of the assessee' firm and others where in partner of the assessee disclosed certain undisclosed income. Accordingly, an addition was made to the income of the assessee. The Tribunal held that statement made by partner could be used as evidence and accordingly upheld the assessment order. The High Court dismissed appeal of the assessee. Held that it is not possible to say that this is a case of no evidence at all inasmuch as evidence in the form of the statement made by the assessee himself and other corroborative material are there on record." (ii) Judgement of Hon'ble High Court of Kerala in the case of CIT, Kozhikode Vs. O. Abdul Razak reported in (2013) 350 ITR 71 (Kerala) where held as follows: "IT: As self-serving retraction, without anything more cannot dispel statement made under oath under section 132 (4)". (iii) Judgement of Hon'ble High Court of Jharkhand i....
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....is own illegal acts, that it was his duty to place all facts truthfully before the assessing authority, that if he fails to do his duty She cannot be allowed to say that assessing authority failed to establish suppression of income, that the facts are within his personal knowledge and therefore it was the burden of the assessee to prove that there was no suppression. Thirdly, the Tribunal has stated that there was no corroborative material to substantiate the contents of the loose papers found during the search. We are not impressed by this reason at all. The papers are not denied or disputed by the assessee. The CIT (Appeals) has found that the partners of the assessee firm had admitted to the practice of suppressing the profits. The papers themselves show two different rates, one higher and the other lower and on comparison with the sale bills it has been found that the sale bills show the lower rate and these findings have not been denied by the assessee. The Tribunal, therefore, erred in looking for some other corroboration to substantiate the contents of the loose papers, overlooking that the loose papers needed no further corroboration and the sale bills compared with the sei....
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....,57,50,000/- 3. Unaccounted cash received from students as per para 13 to 13.2 of the assessment order Rs.1,23,50,000/- 4. Unaccounted cash received from students as per para 14 of the assessment order Rs.30,00,000/- Total Rs. 6,61,00,000/- 5.1 The summary of the seized material relied for making above additions and corresponding statements from the various parties are as follows: SL.No. Name of Student Batch Affidavit or Sworn Statement given by Students/ Parents Reference in Assessment Order/ Paper book Seized Material Extract Reference in Paper book Page No. of the paper book No.3 1 BH Gyan 2019-20 Sworn Statement Page No 71 & 72 of Assessment order Page No 113 of Paper book No 1 01-02 2 Man Shetty Somanath Sudarshan 2019-20 Not able to contact Page No 114 of Paper book No 1 03 3 Utsav Shetty 2019-20 Sworn Statement from Mr. Uday Shetty (Father of Utsav Shetty) Page No 73 & 75 of Assessment order Page No 115-116 of Paper book No 1 04-05 4 Kunwar Rahihikmat 2017-18 Affidavit Assessee's Paper book No. 1 (Page No. 72 & 73). Page No ....
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.... of Paper book No 2 27 22 Akhil S Plackiel 2018-19 Affidavit Assessee's Paper book No. 1 (Page No. 45 & 46). Page No 134 of Paper book No 1 28 23 Anantha Padmanabhan 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 47 & 48). Page No 135 of Paper book No 2 29 24 Karthik BA 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 51 & 52). Page No 136 of Paper book No 2 30 25 Kaveesh S Shetty 2019-20 Sworn Statement Page No 67& 68 of Assessment order Page No 137 of Paper book No 1 31 26 Rishab Jain 2019-20 Sworn Statement Page No 65& 66 of Assessment order Page No 137-138 of Paper book No 1 32 27 Dr Aishwarya R 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 43 & 44). Page No 138-139 of Paper book No 2 33 28 Nikitha Nagesh 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 57 & 58). Page No 139-140 of Paper book No 1 34 29 Chidrawaj Yogendra Prakash 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 49 & 50). Page No 140 of Paper book No 1 35 30 Tejasvi Mathur 201....
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.... 310 In right side written in Pen "Neft Dt 1-2-21 Rs. 10L XX 9972". Therefore pending amount as per this is Rs.15,00,000. Encircled Rs. 25,00,000 and written Rs. 15,00,000 over it.. Written in pencil "15L Pd". But it was not mentioned that it was paid to Vishwanath Shetty or it was paid in cash. In right side written in pencil "Nil as per V.S 2-02-21" 2 As per Dilip Rs. 10,00,000 was due on 25-07-2020. 312 Encirled Rs. 10,00,000 and right side in Pen written " Rs. 10L Neft Dt 01-02-21 XX 9972", that means Rs.10,00,000 paid via banking channel mentioned This is same neft details given here which is given in Page No. 310, which means this Rs. 10,00,000 is part of the above Rs.25,00,000 which is already been discussed. Utsav Shetty: Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 07-01-2021 Utsav Shetty MBBS19-20 15,00,000 16 The Student's father Mr. Uday Shetty in his sworn statement dated 14-03-2022 before assessing officer which is reproduced in Page No. 73 to 75 of the assessment order, he mentioned that Rs.15,00,000 was the discoun....
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....f the student has been recorded on 14.3.2022. He stated that Rs.15 lakhs discount has been given by management due to Covid and remaining fees Rs.10 lakhs was paid through RTGS and he was advised by the management not to disclose the giving of discount to him and therefore, he has mentioned cash instead of discount in his Whatsapp message and he has paid only Rs.15 lakhs cash. However, the ld. AO observed that Dilip Kumar as mentioned in the seized material of "15 L pd to V.S". The ld. AO decoded 15LRs. Paid to Vishwanath Shetty in his statement. However, Dilip Kumar has not mentioned to the question No. 14 to sworn statement dated 11.8.2021 that Rs.15 lakhs was paid to Vishwanath Shetty. His answer to question No. 14 in the sworn statement dated 11.8.2021 is as follows: "15 denotes amount was CLEARED TO Vishwanath Shetty (V.S.) by the students them I called them". 5.4 It may be noted that nowhere he has mentioned in his answer that Rs.15 lakhs was paid to Vishwanath Shetty and he also said in his answer to next question that he has not paid any attention of whatsapp message of Uday Shetty, father of Utsav Shetty. However, it is to be noted that the amount of Rs.15 lakh....
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.... - 9448705542(F) 9964382671(M) 9886867634(S) Remarks for above loose sheet SL No Name of the Students Batch Year Amount Remarks as per A/AJIMS/06 Page no 3 Shashank D Raghavan MBBS 201718 6,00,000 Fees due amount not mentioned. Payment details also not given so it cannot be considered as cash payment. 426 Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 29-12-2021 Shashank Raghavan MBBS17-18 6,00,000 16 Observation of AO: In the Students Affidavit is part of Assessee's Paper book No. 1 (Page No. 89), Mr. Shashank D Raghavan mentioned he has not paid any amount of fees in cash to the Trust or management of the college. Also in the said affidavit student has affirmed that said declaration in the affidavit is given by him voluntarily. Akshara Shetty Our Remarks for above loose sheet SLNo Name of the Students Batch Year Amount Point No Remarks as per A/AJIMS/06 Page no 4 Akshara Shetty MBBS 2018-19 10,00,000 1 As per Dilip Rs. 25,00,000 was Due on 25-07-2020. 362 Enc....
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....5-07-2020. 362 Encircled Rs.20,00,000 in pen and right side in pen written "Rs. 20L RTGS Dt. 04-12-20 XX19035". 2 Rs. 20,00,000 was Due on 25-07-2020. 364 Encircled Rs.20,00,000 in pen and right side in pen written "Rs. 20L RTGS Dt. 04-12-20 XX19035". This is same neft details given here which is given in Page No. 362. Hence the total fees due on 25-07-2020 was received through banking channel. Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 5-Dec Ankit M Mudalagi MBBS 18-19 5,00,000 8 In the Students sworn statement dated 14-03-2022 is reproduced in Page No. 69 & 70 of the assessment order, Mr. Ankit Malligarjun Hudalogi mentioned Rs.5,00,000 was the discount given by the management and remaining fees paid through banking channels. Kadeejat....
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.... This Rs. 10,00,000 encircled in pencil & written 'Nil' over it in pencil. In pencil written" Rs.10L Pd to K.V.S" but It was not mentioned that it was paid in cash. 2 Fees due amount for 2020 not mentioned 35e6 Krishna Priya Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 23-12-2020 Krishna Priya M.K MBBS18-19 10,00,000 16 In the Student's Affidavit is part of Assessee's Paper book No. 1 (Page No. 70 & 71), Ms. Krishna Priya H K mentioned she has not paid any amount of fees in cash to the management. Also, in the said affidavit student has affirmed that said declaration in the affidavit is given by her voluntarily. Shivaprakash P Remarks for above loose sheet SL.No. Name of the Students Batch Year Amount Point No Remarks as per A/AJIMS/06 Page no 8 Shivaprakash P MBBS 201819 12,50,000 1 Rs. 12,50,000 was due on 25-072020 348 Encircled Rs. 12,50,000 in pen a....
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....d 20-02-2021 has not stated that the alleged amount was paid in cash. It was only in his sworn statement dated. 06-07-2021 which has been reproduced in page 18 of Assessment Order he has said that Rs. 7,50,000 was paid in cash to Mr. Vishwanath Shetty (Answer to Question No.8 of his sworn statement dated 06-07-2021) However Mr. Dilip Kumar has filed a letter dated 17-08-2021 before the investigation wing, which has been reproduced in page 21 of assessment order, clarified that he was started bleeding through his nose. The same brought to the notice of the authorities but the same was not paid heed to. That means sworn statement dated 06-07-2021 was not correct. Noting as per A/AJIMS/06-Written by Dileep Remarks for above loose sheet SL. No. Name of the Students Batch Year Amount Point No Remarks as per A/AJIMS/06 Page no 9 Shravan Kumar Shetty MBBS 2018-19 12,50,000 1 Rs 12,50,000 Given due on 25-07-2020 348 Encircled 12,50,000 in pen. In right side mentioned RTGS dt 14-09-2020 ** 83840 but amount received through RTGS was not written. &....
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....U MBBS18-19 5,00,000 14 Suha Suman In the Student's Affidavit is part of Assessee's Paper book No. 1 (Page No. 94), Mr. Suha Suman A U mentioned he has not paid any amount of fees in cash to the management. Also, in the said affidavit student has affirmed that said declaration in the affidavit is given by him voluntarily Observation of AO in Para 8.5 of Page No. 18 of the assessment order Mr. Dilip Kumar has again confirmed that Mr. Vishwanath Shetty has collected cash of Rs. 7.5 lakhs and 5 lakhs from Mr. Shivaprakash and Ms. Suhasuman respectively in the FY 2020-21. Therefore he has recorded these events as "Rs. 5L pd to v.s and Rs. 7 pd to v.s". Aishwarya Ajay Noting as per A/AJIMS/06-Written by Dileep Remarks for above loose sheet SL. No. Name of the Students Batch Year Amount Point No Remarks as per A/AJIMS/06 Page no 11 Aishwarya Ajay MBBS 2019-20 20,00,000 1 As per Dilip Rs. 30,00,000 was due on 25-07-2020 is circled and written in pen Rs.20,00,000 above it 258 Rs 20,00,000 encircled in pencil written Nil over it in pencil.  ....
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.... of Assessee's Paper book No. 1 (Page No. 35 & 36), Ms. Aishwarya Arvind mentioned she has not paid any amount of fees in cash to the management. Also, in the said affidavit student has affirmed that said declaration in the affidavit is given by her voluntarily Ananth Patil 114 Ananth Patil 1200000 25.07.2020 9632225773 800000 25.07.2021 800000 25.07.2022 Remarks for above loose sheet SL. No. Name of the Students Batch Year Amount Remarks as per A/AJIMS/06 Page no 13 Ananth Patil MBBS 2019-20 23,00,000 Rs. 12,00,000 was due on 25-07-2020 266 In right side written in pencil "Not Paid" In right side written "Transfer dt 10-09-2020 xx10470" but amount received through RTGS was not written. Circled Rs. 12,00,000 in pen. In name column written "Before " However it is not so ligible. Hence the total fees due on 25-072020 was encircled. Balance amount of ....
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....he has not paid any amount of fees in cash to the management. Also, in the said affidavit student has affirmed that said declaration in the affidavit is given by her voluntarily Panchami Remarks for above loose sheet SLNo Name of the Students Batch Year Amount Remarks as per A/AJIMS/06 Page no 15 Panchami MBBS 2019-20 30,00,000 Rs. 15,00,000 was due on 25-12-2020 250 Encircled Rs. 15,00,000 in pen. In right side written "F. Tr dt 05-012021 xx217953". Transfer amount not written. Hence the total fees due on 25-072020 was encircled The balance amount is not written here so it can be said that total fees is received through banking channel. Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 8-Sep Panchami MBBS 19-20 30,00,000 10 In the Student's Affidavit is part of Assessee's Paper book No. 1 (Page No.80 & 81). Ms. Panchami mentioned she has not paid any amount of fe....
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.... said that total fees is received through banking channel. Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 12-01-2021 Shreyas M.B MBBS19-20 20,00,000 14 In the loose sheets written by Mr. Dilip 12 lacs vs written 20 lacs not details asked. In the Student's Affidavit is part of Assessee's Paper book No. 1 (Page No.63 & 64), Ms. Shreya M B mentioned she has not paid any amount of fees in cash to the management. Also, in the said affidavit student has affirmed that said declaration in the affidavit is given by her voluntarily. Nithin HS Remarks for above loose sheet SL.No Name of the Students Batch Year Amount Point No Remarks as per A/AJIMS/06 Page no 18 Nithin HS PG 2018-19 20,00,000 1 Rs.20,00,000 was due on 20-05-2020. Encircled Rs.20,00,000 in pencil and written Rs.10,00,000 over it but this Rs. 10,00,000 is not encircled. 418 Right side written in pencil" 10L Pd as per V. Shetty" & "As per V.S -Nil" but its not mentioned that it was paid to Vishwanath Shetty and also its no mentioned that it was ....
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.... 20-05-2020. 76 Circled Rs. 13,00,000 In pencil and written Rs. 2,50,000 above it in pencil. Nowhere its mentioned by Dilip that "pd to v.s". Circled Rs. 2,50,000 in pencil and written Nil near that in pencil. Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 30-Nov Dr Ananth Padmanabha MPG 19-20 14,00,000 8 23-12-2020 Dr Ananth Padmanabha MPG 19-20 2,50,000 16 04-01-2021 Dr Ananth Padmanabha MPG 19-20 5,00,000 16 07-01-2021 Dr Ananth Padmanabha MPG 19-20 5,50,000 16 It is not clear how Mr. Vishwanath Shetty made four entry in the loose sheet. The details was in loose sheet as against amount of Rs.13,00,000 was written by Mr. Dilip. In the Students Affidavit is part of Assessee's Paper book No. 1 (Page No. 47 & 48), Dr. Ananth Padmanabha mentioned he has not paid any amount of fees in cash to the management. Also in the said affidavit student has affirmed that said declaration in the affidavit is given by him voluntarily. Karthik BA Remarks for ab....
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....ining fees paid through banking channels. Rishab Jain Noting as per A/AJIMS/06-Written by Dileep 48 Dr. Rajesh Jain Orthopaedics MGT 5500000 20.05.2021 9743104610 9448540069 (F) 8904205020 (M) SL No Name of the Students Batch Year Amount Point No Remarks as per A/AJIMS/06 Page no 23 Rishab Jain PG 2019-20 35,00,000 Rs. 55,00,000 was due on 20-05-2021. Fees due for 2020 details not given here. Fees payment details not given. 64 Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 28-Sep Dr Rishab Jain Ortho 19-20 35,00,000 10 In the Student's sworn statement dated 14-03-2022 is reproduced in Page No. 65 & 66 of the assessment order, Dr. Rishab Jain has mentioned Rs.35,00,000 was the discount given by the management and remaining fees paid through banking channels Dr Aishwarya R Noting as per A/AJIMS/06-Written by Dileep Remarks for above loose sheet SL. No Name of the Students Batch Year Amount Point No Remarks as per A/AJIMS/06 Page no 24 Aishwarya R PG 2019-20 13,50,000 ....
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....ntarily. Chidrawar Yogendra Prakash Noting as per A/AJIMS/06-Written by Dileep 4 Dr. Chidrawar Yogendra Prakash M.Ch Urology MGT 2000000 20.09.2021 9763498189 9822994489 (F) 9423901443 (M) Remarks for above loose sheet SL No Name of the Students Batch Year Amount Remarks as per A/AJIMS/06 Page no 26 Chidrawar Yogendra Prakash PG 2019-20 15,00,000 Rs. 20,00,000 was due on 20-092021. Fees due for 2020 details not given here. Fees payment details not given. 44 Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 22-Oct Dr Yogendra Mch URO 19-20 15,00,000 12 In the Students Affidavit is part of Assessee's Paper book No. 1 (Page No. 49 & 50), Dr. Chidrawar Yogendra Prakash mentioned he has not paid any amount of fees in cash to the management. Also in the said affidavit student has affirmed that said declaration in the affidavit is given by him voluntarily. Tejasvi Mathur Noting as per A/AJIMS/06-Written by Dileep Dr. Tejasvi Mathur General Medicine MGT 5500000 20.05.2021 9458901741 9412998075 (F) 9937035775 (M)  ....
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.... MBBS 2019-2020 12,50,000 Rs. 25,00,000 was due on 20-05-2021. Fees due for 2020 details not given here. Fees payment details not given. 256 & 260 Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 03-Dec Arjun Venugopal MBBS 19-20 12,50,000 8 In the Student's Affidavit is part of Assessee's Paper book No. 1 (Page No. 41 & 42), Mr. Arjun Venugopal mentioned he has not paid any amount of fees in cash to the management. Also, in the said affidavit student has affirmed that said declaration in the affidavit is given by him voluntarily. III THIRD ADDITION RS.1,23,50,000/- in respect of 9 students is as follows: Sr. No. Name of the students Batch Year Cash paid for their fee on year 2020 1. Adya P Shenoy MBBS 2017-18 12,50,000/- 2. Rasmitha R MBBS 2017-18 12,50,000/- 3. Saiyed Maria Imtiyaz MBBS 2017-18 12,50,000/- 4. Bhaskar Gorala PG 2017-18 8,00,000/- 5. Vangara Sushmita PG 2018-19 30,00,000/- 6. Mohd. Ashar EK PG 18-19 2,50,000/- 7. Kaushik Raju PG 2019-20 20,00,000/- 8. Shaludeen MBBS 19-20 23....
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....unt of fees in cash to the management. Also, in the said affidavit student has affirmed that said declaration in the affidavit is given by her voluntarily. Bhaskar Gorla Noting as per A/AJIMS/06-Written by Dileep Dr. Bhaskar Gorla paediatrics 500000 15.08.2020 9703545327, 9916589927 9441444289 (F) Remarks for above loose sheet SL No Name of the Students Batch Year Amount Remarks as per A/AJIMS/06 Page no 4 Bhaskar Gorla PG 2017-18 8,00,000 Rs. 5,00,000 was due on 15-08-2020. Fees payment details not given. 308 Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 15-Oct Dr Bhaskar Gorla MPG 17-18 8,00,000 12 He completed course in the year of 2020 and we are not able to contact him. However, Vishwanath shetty said he has written wrong amount. Vangara Sushmita Remarks SL. No Name of the Students Batch Year Amount Point No Remarks as per A/AJIMS/06 5 Vangara Sushmita PG 2018-19 30,00,000 This Student details not found Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amoun....
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....dent has affirmed that said declaration in the affidavit is given by him voluntarily. Shajaluddeen Remarks for above loose sheet SL No Name of the Students Batch Year Amount Point No Remarks as per A/AJIMS/06 Page no 8 Shaludeen MBBS 2019-20 23,00,000 Rs. 12,00,000 due on 25-07-2020. 266 Circled Rs.12,00,000 in pen. In right side written ''TR xx28569 dt 11-09-2020'' Noting as per A/AJIMS/02-Written by Vishwanath Shetty Date Name Dept Amount Page No 03-Dec Shahaluddeen MBBS 19-20 23,00,000 8 In the Student's Affidavit is part of Assessee's Paper book No. 1 (Page No. 87 & 88), Mr. Shahaluddeen mentioned he has not paid any amount of fees in cash to the management. Also, in the said affidavit student has affirmed that said declaration in the affidavit is given by him voluntarily. Musin Farook Remarks SL No Name of the Students Batch Year Amount Remarks as per A/AJIMS/06 9 Musin Farook MBBS 2014-2015 3,00,000 This Student....
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....as 'A/AJIMS/02'. Mr. Yashwanth Goud has made the cash payment of Rs. 15 lakh and 12 lakhs on 01.01.2021 and 07.11.2020 respectively. Mr. Dilip Kumar has recorded the due fee of 15 lakh as per the excel sheet maintained by him in seized material marked as 'A/AJIMS/06'. The list maintained by Mr. Dilip is for the pending dues after the payment of Rs. 12 lakhs are made in cash; therefore, it only says Rs. 15 lakhs is pending. This Rs. 15 Lakhs is paid in cash to Mr. Vishwanath Shetty on 01.01.2021 and the same is recorded in A/AJIMS/02. Roshan V Shetty Noting as per A/AJIMS/06-Written by Dileep Remarks for above loose sheet SL.No Name of the Students Batch Year Amount Remarks as per A/AJIMS/06 Page no 2 Roshan V Shetty PG 18-19 3,00,000 Rs. 17,00,000 was due on 20-09-2020. 44 Circled Rs. 17,00,000 in pen and Rs. 2,00,000 written above. In right side written "Rs 5L Dt 2409-2020 P519659 chd 022, Rs 5L Dt 25-09-2020 HDFC 009, Rs 5L 2509-2020 HDFC 002, Total Rs. 15L'' &nb....
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....No 1 15-16 8 Shravan Kumar Shetty 2018-19 Affidavit Assessee's Paper book No. 1 (Page No. 92 & 93) Page No 124-125 of Paper book No 1 17 9 Suha Suman AV 2018-19 Affidavit Assessee's Paper book No. 1 (Page No. 94) Page No 125-126 of Paper book No 1 18-19 10 Aishwarya Ajay 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 33 & 34). Page No 127 of Paper book No 1 20 11 Aishwarya Arvind 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 35 & 36). Page No 128 of Paper book No 2 21-22 12 Ananth Patil 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 39 & 40). Page No 129 of Paper book No 2 23 13 Nibina Nisar 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 78 & 79). Page No 130 of Paper book No 1 24 14 Panchami 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 80 & 81). Page No 130-131 of Paper book No 1 24A 15 Richa Kumari 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 61 & 62). Page No 131-132 of Paper book No 2 25 16 Shreya MB 2019-20 Affidavit Assessee's Paper bo....
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....er book No. 1 (Page No. 87 & 88). Page No 147 of Paper book No 1 46 34 Musin Farook 2015-16 Affidavit Assessee's Paper book No. 1 (Page No. 77). Page No 148 of Paper book No 2 47 35 Roshan V Shetty 2019-20 Affidavit Assessee's Paper book No. 1 (Page No. 84). Page No 149-150 of Paper book No 1 50-51 5.6 The following persons confirmed in the sworn statement before authorities that they have not paid any unaccounted fees to the assessee. 1 BH Gyan 2019-20 Sworn Statement Page No 71& 72 of Assessment order Page No 113 of Paper book No 1 01-02 2 Utsav Shetty 2019-20 Sworn Statement from Mr. Uday Shetty (Father of Utsav Shetty) Page No 73& 75 of Assessment order Page No 115-116 of Paper book No 1 04-05 3 Ankit Malligarjun Hudalogi 2018-19 Sworn Statement Page No 69& 70 of Assessment order Page No 120 of Paper book No 1 11 4 Kaveesh S Shetty 2019-20 Sworn Statement Page No 67& 68 of Assessment order Page No 137 of Paper book No 1 31 5 Rishab Jain 2019-20 Sworn Statement Page No 65& 66 of Assessment order Page No 137-138 of Paper book No ....
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....from students any unaccounted fees and no cash has been handed over to him. Further, it is also admitted fact that there was a physical cash of Rs. 53,00,750/- which was the cash balance appearing in the books of accounts of the assessee as on the said date on 17.2.2021. Being so, the said cash balance is duly explained and it cannot be treated as unaccounted physical cash found during the course of search. The addition cannot be made only on the basis statement recorded u/s 132 (4)/131 of the Act with unsubstantiated documents or loose slips found during the course of search action unless it is supported by any other documents, money, bullion, jewellery or other valuable property or articles or thing belong to this assessee. In our opinion, when these loose sheets, scribblings and jottings having no signature or authorization from the assessee's side, these are unsubstantiated documents. These documents won't suggest the undisclosed assets of assessee in the form of landed property, building, investments, money, bullion, jewellery or any kind of movable or immovable assets. As such, no addition could be made on this count. 5.11 We also take support of various decisions for ....
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.... no. 26 of the said decision has been reproduced hereinbelow: - 26. In view of what has been stated hereinabove we are of the view that this explanation seems to be more convincing, has not been considered by the authorities below and additions were made and/or confirmed merely on the basis of statement recorded under section 132 (4) of the Act. Despite the fact that the said statement was later on retracted no evidence has been led by the Revenue authority. We are, therefore, of the view that merely on the basis of admission the assessee could not have been subjected to such additions unless and until, some corroborative evidence is found in support of such admission. We are also of the view that from the statement recorded at such odd hours cannot be considered to be a voluntary state ment, if it is subsequently retracted and necessary evidence is led contrary to such admission. Hence, there is no reason not to disbelieve the retrac tion made by the Assessing Officer and explanation duly supported by the evidence. We are, therefore, of the view that the Tribunal was not justified in making addition of Rs. 6 lakhs on the basis of statement recorded by the Assessing Office....
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....aragraph no. 18 that no addition has been made on the basis of any incriminating material found during the course of search. Further, the ITAT relied on the decision of the Supreme Court in the case of CIT v. Sinhgad Technical Education Society1 and held as follows: - "18. Further, while writing the order it has come to our notice that the Hon'ble Apex Court in the case of Sinhgad Technical Education Society has held that section 153C can be invoked only when incriminating materials assessment year-wise are recorded in satisfaction note which is missing here. Therefore, the proceedings drawn u/s 143 (3) as against 153C are invalid for want of any incriminating material found for the impugned assessment year. 19. In view of the above, the additional grounds raised by the assessee in the case of M/s Pavitra Realcon Pvt. Ltd. And M/s Delicate Real Estate Pvt. Ltd. are accepted. Since the assessee succeeds on this legal ground, we refrain ourselves from adjudicating the issue on merit as far as these two cases are concerned." 25. Also, the Supreme Court in the case of CIT v. Abhisar Buildwell (P) Ltd., has clarified that in case no incriminating material is f....
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....inating material, the AO would not be justified in seeking to assess or reassess completed assessments. Though the aforesaid observations were rendered in the context of completed assessments, the same position would prevail when it comes to assessments which abate pursuant to the issuance of a notice under Section 153C. Here too, the AO would have to firstly identify the AYs' to which the material gathered in the course of the search may relate and consequently it would only be those assessments which would face the spectre of abatement. The additions here too would have to be based on material that may have been unearthed in the course of the search or on the basis of material requisitioned. The statute thus creates a persistent and enduring connect between the material discovered and the assessment that may be ultimately made. The provision while speaking of AYs' falling within the block of six AYs' or for that matter all years forming part of the block of ten AYs', appears to have been put in place to cover all possible contingencies. The aforesaid provisions clearly appear to have been incorporated and made applicable both with respect to Section 153A as well a....
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....f regular assessments with those that may be triggered by a search. On a search being undertaken in terms of Section 153A, the jurisdictional AO is enabled to initiate an assessment or reassessment, as the case may be, in respect of the six AYs' immediately preceding the AY relevant to the year of search as also in respect of the "relevant assessment year", an expression which stands defined by Explanation 1 to Section 153A. Of equal significance is the introduction of the concept of abatement of all pending assessments as a consequence of which curtains come down on regular assessments. B. Both Sections 153A and 153C embody non-obstante clauses and are in express terms ordained to override Sections 139, 147 to 149, 151 and 153 of the Act. By virtue of the 2017 Amending Act, significant amendments came to be introduced in Section 153A. These included, inter alia, the search assessment block being enlarged to ten AYs' consequent to the addition of the stipulation of "relevant assessment year" and which was defined to mean those years which would fall beyond the six year block period but not later than ten AYs'. The block period for search assessment thus came to....
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....Supreme Court in Vikram Sujitkumar Bhatia. The submission of the respondents, therefore, that the block periods would have to be reckoned with reference to the date of search can neither be countenanced nor accepted. E. The reckoning of the six AYs' would require one to firstly identify the FY in which the search was undertaken and which would lead to the ascertainment of the AY relevant to the previous year of search. The block of six AYs' would consequently be those which immediately precede the AY relevant to the year of search. In the case of a search assessment undertaken in terms of Section 153C, the solitary distinction would be that the previous year of search would stand substituted by the date or the year in which the books of accounts or documents and assets seized are handed over to the jurisdictional AO as opposed to the year of search which constitutes the basis for an assessment under Section 153A. F. While the identification and computation of the six AYs' hinges upon the phrase "immediately preceding the assessment year relevant to the previous year" of search, the ten year period would have to be reckoned from the 31st day of March of....
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....Ltd. (supra) has also held that not providing opportunity of cross-examination makes the addition invalid. It has come to our notice that the Hon'ble Delhi High Court recently has upheld the said decision as reported in 397 ITR 82." 31. On this aspect, it is beneficial to refer to the decision of the Supreme Court in the case of Andaman Timber Industries v. CCE9, wherein, it was held that not providing the opportunity of cross-examination to the assessee amounts to gross violation of the principles of natural justice and the same will render the order passed null and void. The relevant paragraph of the said decision is extracted herein below: - "6. According to us, not allowing the assessee to cross-examine the witnesses by the adjudicating authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed t....
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....lowing observations from the judgment of Tucker, L.J. in Russel v. Duke of Norfolk [(1949) 1 All ER 109] : "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." [Emphasis supplied] 33. Further, the argument of learned counsel for the Revenue that this mistake is curable under Section 292B of the Act lacks merit as the plain language of the said Section makes it abundantly clear that this provision condones the invalidity which may arise merely by mistake, defect or omission in notice. The said Section reads as under: - 292-B. Return of income, etc., not to be invalid on certain grounds.-No return of in....
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....The factual setting of the case are that, a search was conducted by the CBI in the premises of Birla Groups, as a result of which, certain incriminating materials and an amount of Rs.25 crores were recovered. CBI referred the matter to Income Tax Department. In another search, the IT department recovered certain incriminating materials and unaccounted money of Rs.135 crores from Sahara Group of Companies. Allegedly the department recovered certain print out of excel sheets showing that Rs.115 crores were paid to several public figures. The settlement commission granted immunity to the Sahara Group of Companies on ground that the scrutiny of entries on loose papers, computer prints, hard disk, pen drives, etc. have revealed that the transactions noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disks and pen drives, etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. The Income Tax Settlement Commission has also observed that department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of thes....
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....en loan to Sri Anil Kumar to the extent of Rs.1,05,00,000/-. In the search proceedings in the residence of Shri Anil Kumar also, no evidence with regard to unaccounted investment or expenditure representing the loan supposed to be taken from the assessee was found. Merely on the basis of the statement given by Shri Lanka Anil Kumar, which was subsequently retracted, the AO made the addition on the presumption that the assessee had advanced the sums to Shri Lanka Anil Kumar without bringing any evidence on record. The AO has neither given opportunity to the assessee to cross examine the third party nor disproved the explanation given by the assessee. As found from the order of the AO Sri Lanka Anil Kumar is an employee of M/s Navaratna Estates and drawing the salary of Rs.25000/- per month. He explained that the sums mentioned in the whatsapp messages were related to the amounts given to Sri Lanka Anil Kumar in the range of Rs.5,000/- to Rs.10,000/- to meet the petty cash and miscellaneous expenses. No evidence was found with regard to the investment made by Shri Anil Kumar in his own business out of the loans stated to have given by the assessee. In the above facts and circumstance....
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.... 294 ITR 49 • Venkata Rama Sai Developers Vs DCIT ITA 453/Vizag/2012. • P. Venkateshwar Rao Vs DCIT ITA 25/825/Vizag/2012. The ratio laid down is that solely on the basis evidences such as notings in loose sheets found with third parties and the statement of third parties, additions cannot be made without corroborative evidences and independent enquiries. Applying the above ratio to the facts of the case, it is held that the addition made is not warranted, the same is deleted." 6.1. No evidence was found by the department to establish that assessee has given loans to Shri Lanka Anil Kumar during the course of search and no evidence was found regarding utilization of purported advances by Shri Lanka Anil Kumar. Shri Anil Kumar also subsequently retracted from the statement and clarified that he has not received any cash loans from the assessee. Addition was made merely on the basis of whatsapp messages and the statement recorded from section 132 (4) from Shri Lanka Anil Kumar which was subsequently retracted. Therefore we are of the view that the addition made by the AO is unsustainable and the Ld. CIT (A) rightly deleted the addition. Acc....
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....ause Notice. (para 8)" 5.17 The Delhi Tribunal in the case of Veena Gupta v. ACIT in ITA No. 5662/Del/2018 dated 27.11.2018 relying on the above judgment of Hon'ble Supreme Court in the case of Andaman Timber Industries (supra) quashed the assessment order on the reason of not providing cross-examination of witnesses whose statements were recorded. 5.18 The Hon'ble Supreme Court in the case of Mehta Parikh & Co. v. CIT, 30 ITR 181 held as under:- "In the instant case a mere calculation of the nature indulged in by the ITO or the AAC was not enough, without any further scrutiny, to dislodge the position taken up by the assessee, supported as it was, by the entries in the cash book and the affidavits put in by the assessee before the AAC. The Tribunal also fell into the same error. It could not negative the possibility of the assessee being in possession of a substantial number of these high denomination currency notes. It, however, considered that it was impossible for the assessee to have had 61 such notes in the cash balance in their hands on 12-1-1946, and then it applied a rule of the thumb treating 31 out of such 61 notes as within the bounds of possibil....
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....cer. His conduct neutralises his value as a witness. A man indulging in double-speaking cannot be said by any means a truthful man at any stage and no court can decide on which occasion he was truthful. If Shri Sukla is neutralised as a witness what remains is the accounts, vouchers, challans, bank accounts, etc. But, we would observe here that which way lies the truth in Shri Sukla's depositions, could have been revealed only if he was subjected to a cross-examination by the assessee. As a matter of fact, the right to cross-examine a witness adverse to the assessee is an indispensable right and the opportunity of such cross-examination is one of the corner-stones of natural justice. Here Shri Sukla is the witness of the Department. Therefore, the Department cannot cut short the process of taking oral evidence by merely having the examination-in-chief. It is the necessary requirement of the process of taking evidence that the examination-in-chief is followed by cross-examination and re-examination, if necessary. 9. It is not just a question of form or a question of giving an adverse party its privilege but a necessity of the process of testing the truth of oral evidenc....
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....s. Therefore, it is necessary to delve out the truth from him and for that matter a cross-examination is necessary. Secondly, if the statement of Shri Sukla as a witness against the adverse party, the assessee, is relied upon as truthful, still remains the question of estimation of the profit. The assessee no doubt has given a comparative instance of gross profit rate but it is also necessary for the Department to come to a finding as to the norm of the gross profit on the basis of comparative cases. Therefore, it is the duty of the Assessing Officer to counter the comparative statement cited by the assessee before he can have the option to estimate the gross profit. Again, it is the comparative instance that alone can be the foundation of such estimate in case the accounts are really found to be unreliable and requiring to be rejected. Therefore, in the interest of justice for both the parties, the assessee and the Revenue, it is necessary for us to direct the Tribunal to remand the case to the Assessing Officer for reconsidering the whole matter in the light of the observations made by us in the foregoing and redo the assessment accordingly. All opportunities should be given to t....
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....nce could be placed on loose sheets seized during the course of search and third party statements unless provided cross-examination. Collection of unaccounted fees is governed by Karnataka Institutions (Prohibition of Capitation Fees) Act, 1984 and there was no violation noticed by the State authorities and also Medical Council of India. In such circumstances, it is not possible to conclude on the basis of various loose sheets and jottings found during the search action u/s. 132 that assessee has collected unaccounted fees from students. 5.23 Further, the Bangalore Bench in the case of Anand Social & Education Trust in ITA Nos. 2542-2548(B)/2017 dated 29.05.2020 by placing reliance on the judgment of Hon'ble Madras High Court in the case of Balaji Educational & Charitable Public Trust, 56 taxmann.com 182 in similar circumstances observed that the AO had not conducted any enquiry with the students or parents or others. The cash seized during the search was accepted as not belonging to the assessee. There was no complaint received from any student or parent regarding unaccounted fee charged by the institution. In the above case also the AO had estimated the unaccounted fees receiv....
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....o as to sustain the addition. 5.27 Considering the facts of the case, we are of the opinion that the evidence collected by the authority is not sufficient to establish that the assessee has collected unaccounted fees for admission of students to various courses in the assessee's college. We are aware that entire evidence has to be appreciated in a wholesome manner and even where there is documentary evidence in favour of an assessee, the same can be overlooked if there are surrounding circumstances to show that the claim of assessee is opposed to normal course of human thinking, conduct and human probability. Even applying this principle to the present case, we have difficulty in rejecting the assessee's plea as opposed to normal course of human conduct. The circumstances surrounding the case are also not enough to reject the assessee's explanation. We have considered all the material on record and also the statement of the parties as discussed in the earlier paragraphs. We are of the opinion that the department cannot rely on those statements, more so when it was confronted to the assessee's employees during cross-examination, they have denied the collection of unaccounted fees....
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....esha Education Society in ITA Nos.100 to 106/Bang/2012 and M.J. Balachander in ITA Nos.90 to 94/Bang/2012, order dated 21.12.2012 considered the case in similar circumstances where Mr. M.J. Balachander was collecting extra tuition fees without any authority or consent of the society and the conclusion of the CIT(Appeals) was that extra tuition fees was collected by Mr. Balachander on his own and society has nothing to do with extra tuition fees collection. Being so, the Tribunal held that the assessee cannot be faulted and approval cannot be withdrawn so as to deny the benefit of section 11 of the Act. The relevant observations of the Tribunal are as follows:- ""In this regard, the ld. counsel for the assessee brought to our notice that the agreed tuition fee which the Society can collect for admission has also been collected and this is duly reflected in the statement found in the seized documents. It was submitted that the total collections in the form of DD was a sum of Q 1,16,74,975 and the amount stated to have been deposited by the Secretary in the Head Office is only a sum of Q 80,000 on 02.06.2005 and Q 14,33,500 on 19.10.05. It was submitted that the reference ....
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....on which reliance is placed by the revenue authorities is not conclusive evidence to sustain the addition. 5.30 Further the Hyderabad Bench of the Tribunal in the case of ACIT v. B. Srinivasa Rao, 159 TTJ 483 (Hyd) [wherein the AM herein was the author observed as under:- "8. As for the first reason put forth for cancellation of registration, viz., collection of capitation fee, it is submitted that in the course of search, excel sheets were found containing the names of students, names of parents and the amount. In the course of search and, thereafter, statements of chairman of the assessee trust were recorded on a number of occasions, with reference to the entries in these excel sheets. It was explained that circumstances in which the excel sheets were found were not ascertainable. It was contended that uncorroborated notings in the excel sheets should not be acted upon to derive any inference against the society. In support of this contention that the said excel sheets are not reliable, the learned counsel for the assessee put forth the following reasons : (a) The notings in the excel sheets lacked corroboration of the notings although the Department attempte....
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....iance is placed on the decision of Ahmedabad Bench of the Tribunal in the case of Sanskruti Township v. Department of IT [IT Appeal No. 1885 (Ahd.) of 2006, dated 23-9-2011] and Hyderabad Bench of the Tribunal in the case of Dy. CIT v. C. Krishna Yadav [2011] 12 taxmann.com 4/46 SOT 250 (Hyd.)(URO). (h) There is evidence in the seized record that the Department has typed some information by making use of assessee's computer and made part of the Panchnama. This fact was pointed out by the chairman of the assessee, Sri B. Srinivasa Rao in the course of his statement recorded on 17th Dec, 2009. This act on the part of the search party raises an eyebrow. (i) The Dy. Director of IT in course of post-search investigation made extensive enquiries to corroborate the notings in the excel sheets. One of the steps taken by him was that he summoned all the parents of the students under s. 131 to take evidence. In course of assessment proceedings, the assessee made requests to supply the copies of these statements. Repeated requests made by the assessee fell in deaf ears and so far these statements have not been provided. On being directed by the AO in course of assessment....
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.... (c) Asstt. CIT v. Dr. Kamla Prasad Singh [2010] 3 ITR (Trib) 533 (Pat.) ; (d) CIT v. Khazan Singh & Bros. [2008] 304 ITR 243/[2007] 164 Taxman 30 (Punj. & Har.) ; (e) CIT v. Girish Chaudhary [2008] 296 ITR 619/[2007] 163 Taxman 608 (Delhi) ; (f) Bansal Strips (P.) Ltd. v. Asstt. CIT [2006] 99 ITD 177 (Delhi) ; (g) CIT v. Maulikkumar K. Shah [2008] 307 ITR 137 (Guj.). (l) As regards the presumption under s. 132(4A), it was submitted that a loose sheet is not a book/document so as to raise the presumption. For this proposition, reliance was placed on the decision of Apex Court in the case of CBI v. V.C. Shukla [1998] 3 SCC 410. Further the presumption in this section is not mandatory. This can supplement but cannot supplant evidence. Nothing was found by the Department to support their suspicion. (m) Therefore, the Excel sheets which are not speaking either by itself or in the company of others, or corroborated by enquiry, cannot be the basis of any inference that capitation fees were collected and not entered in the accounts to cancel registration. 5.31 Thus, it is seen from the seized material and Excel sheets that these....
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....e students / parents who have paid the unaccounted fees cannot come to the conclusion that the assessee has received unaccounted fees. The basis for donation is notebook / loose sheet. This notebook or loose sheets found during the course of search is only circumstantial evidence and not full proof evidence to sustain the addition. No addition can be made in the absence of any corroborative material. If it is circumstantial evidence in the form of loose sheets and notebook, it is not sufficient to come to the conclusion that there is conclusive evidence to hold that assessee has collected unaccounted fees. The notes in the diary/loose sheets are required to be supported by corroborative material. Since there was no examination or cross-examination of persons concerned, the entire addition in the hands of the assessee on the basis of uncorroborated writings in the loose papers found during the course of search cannot be sustained. The evidence on record is not sufficient to uphold the stand of revenue that assessee is collecting huge unaccounted fees in the guise of carrying on educational activities. 5.33 Being so, in our opinion the seized material relied by the assessing offic....
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....students; and 5.35 Further, the seized material are in the form of various loose sheets, scribblings, jottings and Excel sheets taken from the computer having no signature or authorization from the assessee's side. These are unsubstantiated documents and there is nothing to suggest any undisclosed assets of assessee found during the course of search. More so, search action not resulted in recovery of any undisclosed assets in the form of landed property, building, investments, money, bullion, jewellery or any kind of movable or immovable assets. 5.36 It is also noted that on cross examination of the employees, they have denied the receipt of the unaccounted fees. Further, out of 43 students alleged to have been paid unaccounted fees, 35 students denied the same in affidavit, 5 denied in their sworn statement and whereabouts of 3 students were not known. No efforts has been done to find out their whereabouts. 5.37 Further, some of the statements have been recorded under section 131 by the authorized officer subsequent to completion of search and these statements cannot be considered as conclusive evidence in view of the below mentioned CBDT Circular in file no.286/98/2013-I....
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...."The principles relating to section 133A of the Income Tax Act, 1961, are as follows: (i) an admission is extremely an important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made the admission to show that it is incorrect and that the assessee should be given a proper opportunity to show that the books of accounts do not correctly disclose the correct state of facts; (ii) in contradistinction to the power under section 133A, section 132 (4) enables the authorized officer to examine a person on oath and any statement made by such person during such examination can also be used in evidence under the Income-tax Act. On the other hand, whatever statement is recorded under section 133A of the Income-tax Act it is not given any evidentiary value obviously for the reason that the officer is not authorised to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law; (iii) The expression "such other materials or information as are available with the Assessing Officer" contained in Section 158BB of the Income-tax Act, 1961, would include the materials gathered durin....
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....is extremely an important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made the admission to show that it is incorrect and that the assessee should be given a proper opportunity to show that the books of accounts do correctly disclose the correct state of facts, vide decision of the Apex Court in Pullangode Rubber Produce Co. Ltd. v. State of Kerala [(1973) 91 I.T.R. 18]; ii. In contradistinction to the power under section 132 (4) of the Income-tax Act enables the authorized officer to examine a person on oath and any statement made by such person during such examination can also be used in evidence under the Income-tax Act if it is supported by corroborative materials. On the other hand, whatever statement is recorded under section 133A of the Income-tax Act it is not given any evidentiary value obviously for the reason that the officer is not authorized to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law, vide Paul Mathews and Sons v. Commissioner of Income-tax [(2003) 263 I.T.R. 101]; iii. The word "may" used in Section 133A (3)(iii) of the Act, viz., "r....
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....rm 9A as prescribed in the Income Tax Rules with the concerned PCIT. 6.1 In our opinion, it is appropriate to remit this issue to the file of ld. AO to examine the same in the light of Form No.9A before PCIT, if any filed by the assessee. Ordered accordingly. 7. In the result, appeal of the assessee is partly allowed for statistical purpose Order pronounced in the open court on 18th July, 2024 ============= Document 1 30 Utsav Shetty 1501. To sha 10 4500 000 2500000 25.07.2020 9481750413 2500000 25.07.2021 9449813413 9482253613 2500000 25.07.2022 May dk 12-21 10.4-9972 Document 2 1000000 25.07.2020 9481750413 30 Utsav Shetty 2500000 25.07.2021 9449813413 9482253613 2500000 25.07.2022 4. 10. L. 18. V. 1.2.21 9972 Document 3 S.R Name of students Batch Year No. Cash paid for their fee of year 2020 12,50,000/- 1. KunwarRahiHikmat MBBS 2017-18 2. LekhaBhat MBBS 2017-18 3,50,000/- 3. Shashank D Raghavan MBBS 2017-18 6,00,000/- 4. AksharaShetty 5. Ankit MalligarjunHudalogi MBBS 2018-19 6. KadeejathShanifaFarveen MBBS 2018-19 7. K....
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....ame of the students Instalment DUE DATE Contact Nos Amount 750000 22 27 SHIVAPRAKASH P 1250000 25.07.2020 9496266936(S), 2500000 2500000 30.06.2022 25.07.2021 9947863695(F) 1.5. vis 5Lsd622x2744 Document 11 Sl. No Name of the students Instalment Amount DUE DATE Contact Nos 7.5 M 27 SHIVAPRAKASH P 750000 1250000 25.07.2020 9496266936(S), 2500000 25.07.2021 9947863695(F) 2500000 30.06.2022 622744 Document 12 28 SHRAVAN KUMAR SHETTY 1250000 25.07.2020 9449278389(5), 9591890529(F) RTGS dk 1920x83840 2500000 25.07.2021 1965 d. 14-9-20x83840 9449278389(S), 28 SHRAVAN KUMAR SHETTY 1250000 25.07.2020 9591890529(F) 2500000 25.07.2021 Document 13 999940 RTGS d 10-9-20m 90024 2500000 25.07.2020 7338559108(S), 29 SUHA SUMAN AU 7 2500000 25.07.2021 9845475658(F) 1500000 30.06.2022 Document 1429 SUHA SUMAN A U 2500000 25.07.2021 1500000 30.06.2022 7338559108(S), 9845475658(F) Document 15 Chack Aishwarya Ajay 1 Aishwarya Ajay 2000.000 3000000 25.07.2020 R 10-L RTGS-11-9-20x85569 8156975526 2500000 25.07.2....