SHRI ARUN DUBEY,BHOPAL vs. THE ITO 1(1), BHOPAL
What did the Tribunal hold?
The Tribunal noted that the assessee's name did not appear in the seized document for his daughter's admission, raising doubts about the revenue's action. The issue was remanded to the Assessing Officer for a fresh decision.
What were the facts?
During a survey, incriminating documents were found indicating cash donations for admissions. The assessee's name was recorded as having made a Rs. 6.5 lac donation for his daughter's admission.
What were the issues?
Whether the addition made under Section 68 for alleged unexplained cash donation was justified, especially when the assessee's name was not directly linked to the admission in the seized documents.
Which sections of the Income-tax Act were involved?
Section 133A,Section 143(3),Section 147,Section 148,Section 68
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCHE, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
आदेश / O R D E R
PER SHRI MANISH BORAD, AM
The instant appeal of the assessee pertaining to the
assessment year 2006-07 is directed against the order of the
Commissioner of Income Tax (Appeals)-31, New Delhi, Camp Bhopal
having concurrent jurisdiction over CIT(A), Bhopal, arising out of
order u/s 143(3) r.w.s. 147 of Income Tax Act (in short referred as
‘Act’) Act framed by the ACIT 1(1), Bhopal.
Arun Dubey ITA 186/2016 2. The assessee has taken the following grounds :-
“(i) That the proceedings u/s 147 is illegal and bad in law. Consequently, order of learned Assessing Officer is illegal and without jurisdiction. (ii) That the addition made u/s 68 by the learned Assessing Officer for sum of Rs.6,50,000/- is incorrect and illegal. (iii) That the additions made by the learned Assessing Officer are not made on basis of cogent material or evidence and these are based on apprehension and surmises. (iv) That the basis of findings of Commissioner (Appeal) for confirming the addition is hypothetical and devoid of provisions of the law.”
The facts, in nutshell, are that the assessee is an Individual. A
survey u/s 133A of the Act was conducted on various concerns of
‘peoples group’ in which various incriminating documents were
found. The ‘Peoples Group’ runs various colleges offering
professional courses in Bhopal. During the course of search loose
papers were found representing cash donations made by various
parents in the form of donation to secure admission of their wards.
In these loose papers, a donation of Rs. 6.5 lacs made by the
assessee was found recorded representing cash donation for
admission of his daughter, Ms. Anuradha Dubey. After issuing the
Arun Dubey ITA 186/2016 notice u/s 148 of the Act and considering the reply of the assessee,
the Assessing Officer observed that the cash paid towards donation
was nothing but unexplained income of the assessee and
accordingly assessed the total income of the assessee at
Rs.6,50,000/-. Aggrieved with the action of the Assessing Officer,
the assessee preferred first appeal before the learned Commissioner
of Income Tax (Appeals) but in vain. Now the assessee is in appeal
before the Tribunal.
At the outset of hearing, the learned counsel for the assessee
drew our attention to Annexure – 2 i.e. the list of students filed by
the assessee in the paper book with the help of which he submitted
that in the said list, against the admission of his daughter,
Anuradha Dubey, the name of the assessee did not find place but
the name of C/o Dr. Asha Sharma, Asstt. Professor of Botany, Govt.
MGM, is mentioned. In this scenario, the learned counsel for the
assessee vehemently submitted that since the name of the assessee
did not find place against the admission of Anuradha Dubey, no
addition is required to be made to his total income therefor and if
any enquiry was to be conducted, it should have been made in the
Arun Dubey ITA 186/2016 name of Dr. Asha Sharma whose name was appearing in the seized
document, Annexure-2 for admission of Anuradha Dubey. On the
other hand, the learned DR strongly refuted the submissions of the
assessee with the plea that throughout the proceedings before the
lower authorities, the assessee did not take this alleged plea and
this being a fresh piece of evidence brought in by the assessee, it
should not be entertained by the Tribunal.
We have heard both the parties and perused the material
available on record. It is an admitted fact that in the impugned
seized document Annexure-2 the name of the assessee is not
appearing which itself raises a doubt on the validity of action
initiated by the revenue authorities against the assessee. It is also
not disputed that Anuradha Dubey is daughter of the assessee and
she is pursuing MBBS course and certain expenditure certainly
might have been incurred on her studies. We find that the assessee
has contended throughout all the proceedings that he has no
regular source of income and he is unemployed facing illness
consistently. In this situation, the onus lies on the assessee to
justify the source of expenditure for the education of her daughter.
Arun Dubey ITA 186/2016 In our view, since the assessee has come up before the Tribunal
with a new plea, it would be appropriate to remand the issue
involved in the present appeal to the file of the Assessing Officer
with a liberty to examine the issue in the light of the facts available
on record. We, therefore, set aside the findings of the lower
authorities and direct the Assessing Officer to decide the issue de
novo after considering the above new plea taken by the assessee
before the Tribunal. Needless to say that proper opportunity of
being heard should be provided to the assessee to establish his
stand.
In view of the above discussion, the appeal of the assessee
stands allowed for statistical purposes.
Pronounced in open Court on 29th June, 2018.
Sd/- sd/- (KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER
29th June, 2018 Dn/- Copy to – Appellant/Respodent/Pr.CIT/CIT(A)/DR/Guard File By order
Arun Dubey ITA 186/2016
Private Secretary
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