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Income Tax Appellate Tribunal, ALLAHABAD BENCH ‘SMC’ ALLAHABAD
Before: SHRI.VIJAY PAL RAO
O R D E R PER SHRI VIJAY PAL RAO, JUDICIAL MEMBER:
This appeal of the assessee is directed against the order dated 24.10.2019 of ld. CIT(A), Allahabad for the A.Y. 2008-09. The assessee has raised the following grounds: “1- That in any view of the matter the Commissioner of Income Tax (Appeal) by passing ex-parte order dated 24/10/2019 without providing proper opportunity of being heard to the appellant. Specially when appeal was filed in time with the background to contest the matter order to get justice but no chance was provided hence the order is liable to be cancelled. 2- Thai in any view of the matter the ex-parte decision passed by the Commissioner of Income Tax (Appeal) is unjustified, incorrect and illegal because neither any opportunity of being heard was allow nor the appellant is an habitual defaulter, hence the ex-parte decision is liable to be cancelled.
3- That in any view of the matter the addition of Rs.3,81,000/- made the assessing officer as per para 2 of the assessment order and his action as confirmed by the Commissioner of Income Tax (Appeal) is highly unjustified and in this regard the discussion of assessing officer in para 2 are totally incorrect and therefore the same is liable to be deleted. 4- That in any view of the matter addition of Rs. 6 Lacs made by the assessing officer as per para 3 of his order by alleging capitation fee/donation paid for admission in MBBS in Santosh Medical College as observed by the assessing officer and his action as confirmed by the Commissioner of Income Tax (Appeal) by passing ex-parte order dated 24/10/2019 is totally incorrect unjustified and illegal, hence the addition is liable to be deleted in the facts and circumstances of the case. 5- That in any view of the matter an identical issue about alleged payment of capitation fee/donation to Santosh medical college was decided by the Commissioner of Income Tax (Appeal) in other case as per his order dated 23/04/2019 in appeal no. CIT(A)/A11/10265/18-19 by deleting the addition whereas in the appellant's case addition was confirmed without appreciating the correct facts and earlier consider his own earlier decision which action is highly unjustified and illegal because facts of the appellant's case and facts cited case are totally similar and identical, hence the addition is liable to be deleted in the present case also. 6- That in any view of the matter the interest charged under different sections of the IT Act is highly unjustified and illegal in the facts and circumstances of the case. 7- That in any view of the matter the appellant reserves his right to take any fresh ground before hearing of the appeal.”
The ld. AR of the assessee has referred to Ground No.1 and submitted that the ld. CIT(A) has dismissed of the appeal of the assessee by passing exparte order. He has further submitted that the assessee is an individual and derives income from coal and liquor business and maintaining regular books of account. The Assessing Officer has reopened the assessment to assess the capitation fee paid by the assessee for admission of his child in MBBS course. The ld. AR has submitted that since the ld. CIT(A) has dismissed the appeal by passing exparte order and therefore the assessee could not file the supporting evidence to explain the source of the payment. Hence, he has pleaded that the matter may be remanded to the record of the ld. CIT(A) for granting one more opportunity of hearing to produce the evidence as well as explain the source of payment of capitation of fee.
On the other hand, the ld. DR has objected to grant of one more opportunity of hearing to the assessee and submitted that the Assessing Officer as well as ld. CIT(A) granted sufficient opportunities to the assessee but the assessee failed to even appear before the ld. CIT(A).
Having considered the rival submissions and material on record. It is noted that the Assessing Officer has made an addition of Rs.9,81,000/- on account of capitation fee paid by the assessee for the admission of his son in MBBS course. The said addition is based on the documents found during the search and seizure action in case of the trust which is running the medical college. The assessee filed the details of the fees paid in respect of the MBBS course of his son however, apart from the said payment of fee by the assessee the Assessing Officer has also made an addition of Rs.6,00,000/- towards capitation fee. A document received by the Assessing Officer being a seized material in case of search and seizure is required to be confronted with the assessee before making an addition. Accordingly, in the facts and circumstances of the case and in the interest of justice, the assessee is granted one more opportunity to present its case and produced the source of payment if any as well as documentary evidence towards the addition made by the Assessing Officer. The matter is set aside to the record of the ld. CIT(A) for fresh adjudication after granting one more opportunity of hearing to the assessee.
In the result, appeal filed by the assessee is allowed for statistical purposes.
(Order pronounced on 27/01/2021 at Allahabad in the open Court through Video Conferencing)