SHRI ARUN DUBEY,BHOPAL vs. THE ITO 1(1), BHOPAL

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.”

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.

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.

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.

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