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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’, NEW DELHI
Before: SH. H.S. SIDHU
The assessee has filed the appeal against the order dated 08.5.2018 passed by Ld. CIT(A)-20, New Delhi relevant to assessment year 2008-09 by raising as many as 07 grounds, but at the time of hearing, Ld. counsel for the assessee has only argued the ground no. 6 which is reproduced as under:-
“5. That on the facts and in the circumstances of the appellant’s case, the Ld. CIT(A) erred in law by stating that formal cross-examination of deponent, is not required as pr the test of natural justice, by relying upon certain judgment which is contrary to the facts of the appellant’s case.” 2. Brief facts of the case are that assessee has not filed its return of income for the assessment year 2008-09 on 30.09.2009 declaring a total income of Rs. 20,79,470/-. In this case an information was received from the DDIT (Inv.), Unit V(1), New Delhi. On the basis of the said information reasons for reopening of the case u/s. 147 of the Income Tax Act, 1961 (in short “Act”) were recorded. The said reasons for reopening were as under:-
"A letter was received from 1TO, Ward-32(4), vide F. No. ITO-W-32(4)/2014-15/107 dated 12.03.2015 regarding this case. They received information from the DDIT (lnv.), Unit- 5(1), New Delhi Vide letter F. No. DDIT (Inv)/U-5(l)/2014-15/303 dated 05.03 2015 through the Pr. Commissioner of Income Tax-10, New Delhi vide letter F. No. Pr, CIT10/RA147/2014- 15/529 dated 09.03.2015. The DDIT (lnv.), Unit-5(1), New Delhi has intimated that a search & seizure action u/s. 132 of the IT. Act was carried out on 27.06.2013 in Santosh Group of Institutes & Dr. P. Mahalingam, Ghaziabad. During the search, certain documents/books of accounts were seized from the premises H-l to 6, Santosh Nagar, Pratap Vihar, Ghaziabad, the main administrative block of the college which contain the details of donation/ capitation fee, over and above the regular course fees, paid in cash by the parents of students taking admissions in various medical courses during F. Y.s 2007-08 to 2013-14 pertaining to A. Y.s 2008-09 to 2014-15. As per the information received, the assessee has paid the below mentioned amount to M/s. Santosh Medical College during F. Y. 2007-08 pertaining to A. Y. 2008-09, The details are as under: - S. No. of Name of the Student's Date of Capitation Regular Fee Regular Fee Total Amount lnv. Unit Student/course Father's Name Payment of Donation paid by DD in paid in cash made in Rs. Records Purchased and Address Capitation amount paid in Rs. in Rs. donation cash in Rs. amount (1) (2) (3) (4) (5) (6) (7) (8)
1 Dr. Anuj Dr. S.P 18.12.2007 13,00,000 12,00,000 18,500 25,18,500 Aggarwal/MDS(Oral Sur) Aggarwal, P-8, Green Park Extn. N.D
During the course of recording the statement u/s. 132(4) of I.T Act, relevant seized documents were confronted to Dr. P. Mahalingam, Chairman of the Trusts. He has categorically admitted of accepting the donation/ capitation fee in cash and offered the unaccounted money so received for taxation in the relevant Asstt. Years. As per ITD system, no record for return filed by the assessee for A. Y. 2008-09 is available. In view of above facts, I have reason to believe that the assessee has income of Rs.13, 00,000/- which has escaped assessment and needs to assess/ reassess as per provisions of section 147/148 of the Income Tax Act, 1961.“ 2.1 Subsequently, the case was reopened and notice u/s. 148 of the Act was issued on 31.03.2015 which why duly served upon the assessee.
Statutory notice u/s. 143(2) was issued on 27.07.2015 of the Act and notice u/s. 142(1) was issued on 20.10.2015 and duly served upon the assessee asking for details as per questionnaire. In response to the notice, Sh. Vivek Jain, Advocate of the assessee attended from time to time and filed the necessary details information/documents etc. as required. The assessee was provided the reasons for reopening vide letter dated 07.08.2015 to which he filed an objection vide letter dated 08.12.2015.
The objections of the assessee were disposed off vide letter dated 14.01.2016.
2.2 During the course of assessment proceedings, the AR was confronted with the query regarding the cash payment to M/s. Santosh Medical College to the tune of Rs. 13,00,000/- over and above the regular course fees as donation/ capitation fee. The AR was also asked to furnish documentary evidence for the source of the aforesaid payments. In response to that the AR furnished the reply dated 21.01.2016 which is placed on record.
2.3 The assessee is a Doctor by profession and derived income from Business or Profession, income from House Property, income from Capital Gain and income from Other Sources.
2.4 During the course of assessment proceedings, summon u/s. 131 of the Act dated 10.03.2016 was sent to the assessee for recording his statement. In response to the summon, Sh. Suresh Prasad Aggarwal attended the office of the undersigned on 14.03.2016. Thereafter, the statement of Sh. Suresh Prasad Aggarwal was recorded and put on record.
Since, the information regarding the assessee has been received from the DDIT [Inv.], Unit-5(1), New Delhi vide letter F. No. DDIT (Inv)/U- S(l)/2014-15/303 dated 05.03.2015 through the Pr. Commissioner of Income Tax-10, New Delhi vide letter F. No. Pr. CIT-10/RA147/2014- 15/529 dated 09.03.2015 in which it was stated that during the statement u/s. 132(4) Dr. P. Mahalingam has admitted to accepting the capitation fee as unaccounted money from Sh. Suresh Prasad Aggarwal father of Dr. Anuj Aggarwal and surrendered the same for taxation, Rs.13,00,000/- was added to the income of the assessee as unexplained money u/s. 69A of the I.T. Act, 1961 vide order dated 21.3.2016 passed u/s. 147/143(3) of the Act. Against the above addition, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 08.05.2018 has dismissed the appeal of the assessee. Aggrieved with the impugned order dated 08.5.2018, assessee is in appeal before the Tribunal.
During the hearing, Ld. counsel for the assessee has submitted that the AO has erred on facts and in law forming a negative inference solely on the basis of extracts of statement by third parties without confronting the same to the assessee company and in total disregard to the provisions of law. He further stated assessee vide ground no. 2 which is at page no. 2 of the impugned order of the Ld. CIT(A), has raised the issue that “That on the facts and in the circumstances of the appellant case the AO erred both in fact and in law in making addition of Rs. 13 lacs under section 69A of the Act being unexplained money by relying on the unilateral statement of Dr. Mahalingam recorded under section 132(4) without affording the appellant an opportunity to cross examine the dependent though specific request was made by the appellant in statement recorded under section 131(1). Hence, addition of Rs. 13 lacs being unexplained money in the hands of the appellant is bad in law and liable to be deleted.” and submitted that the same was not adjudicated by the ld. CIT(A) and inspite of deciding the same, he has mentioned vide para no. 6.3.12 at page no. 31 that the plea of the assessee at this stage that opportunity of cross examination was not given in this case deserves to be rejected as no cross examination was asked by the appellant at the time of deposition before AO, which was wrong. However, he further submitted that vide para no. 6.3.8 at page no. 29 while answering Question No. 6, the Ld. CIT(A) has reproduced the statement of the assessee wherein, it has been mentioned that “…..However, I have requested you to once again provide me the opportunity to cross examination Dr. P. Mahalingam so that I can confirm that I had paid any cash amount to Dr. P. Mahalingam/ Santosh Medical Group of Institute…..” In view of above, he submitted that the addition in dispute was made and confirmed merely on the basis of the statement made by P. Mahalingam on the back of the assessee and without giving any opportunity to cross examine him, which is not sustainable in the eyes of law. Therefore, he submitted that the issue argued vide ground no. 6 is squarely covered by the decision of the ITAT, SMC, Delhi Bench wherein the Tribunal vide its order dated 06.11.2018 passed in (AY 2014-15) in the case of Smt. Jyoti Gupta vs. ITO has allowed the appeal of the assessee on exactly similar facts and circumstances. Hence, he requested to follow the aforesaid case and allow the appeal of the assessee.
Ld. DR relied upon the orders of the authorities below. He relied upon various case laws on the merits of the case and on other legal issues. But on the issue of cross examination, he especially reiterated the contents of para 6.3.12 at page no. 31 of the Ld. CIT(A)’s order.
I have heard both the parties and perused the records, especially the assessment order as well as impugned order and the forming a negative inference solely on the basis of extracts of statement by third parties without confronting the same to the assessee company and in total disregard to the provisions of law. I note that assessee vide ground no. 2 which is at page no. 2 of the impugned order of the Ld. CIT(A), has raised the issue that “That on the facts and in the circumstances of the appellant case the AO erred both in fact and in law in making addition of Rs. 13 lacs under section 69A of the Act being unexplained money by relying on the unilateral statement of Dr. Mahalingam recorded under section 132(4) without affording the appellant an opportunity to cross examine the dependent though specific request was made by the appellant in statement recorded under section 131(1). Hence, addition of Rs. 13 lacs being unexplained money in the hands of the appellant is bad in law and liable to be deleted.”. I further note that the same was not adjudicated by the ld. CIT(A) and inspite of deciding the same, he has mentioned vide para no. 6.3.12 at page no. 31 that the plea of the assessee at this stage that opportunity of cross examination was not given in this case deserves to be rejected as no cross examination was asked by the assessee at the time of deposition before AO, which is not in accordance with law. I further note that Ld. CIT(A) vide para no. 6.3.8 at page no. 29 while answering Question No. 6, has reproduced the statement of the assessee wherein, it has been mentioned that “…..However, I have requested you to once again provide me the opportunity to cross examination Dr. P.
Mahalingam so that I can confirm that I had paid any cash amount to Dr. P. Mahalingam/ Santosh Medical Group of Institute…..”, therefore, there is considerable cogency in the contentions of the Ld. Counsel for the assessee that the addition in dispute was made and confirmed merely on the basis of the statement made by P. Mahalingam on the back of the assessee and without giving any opportunity to cross examine him, which is not sustainable in the eyes of law. In view of above, the legal issue argued vide ground no. 6 before the Tribunal is squarely covered by the decision of the ITAT, SMC, Delhi Bench wherein the Tribunal vide its order dated 06.11.2018 passed in (AY 2014-15) in the case of Smt. Jyoti Gupta vs. ITO wherein, the Tribunal has allowed the appeal of the assessee on exactly similar facts and circumstances. I am of the considered view that assessee has considerable cogency that addition was made on the basis of statement of Dr. P. Mahalingam, but the assessee was not granted the opportunity to cross examine Dr. P.
Mahalingam which ground was also raised before the Ld. CIT(A), who did not adjudicate the same, which is against the settled law. The case laws cited by the Ld. DR are distinguished on facts, because the same relates to merit of the case or on other legal issue raised by the assessee.
However, the assessee has only argued the issue of cross examination. I note that exactly on the similar facts and circumstances the ITAT, SMC, Delhi Bench vide its order dated 06.11.2018 passed in (AY 2014-15) in the case of Smt. Jyoti Gupta vs. ITO wherein, the SMC Bench has considered the statement of Vikrant Kayan and has held that since the impugned addition was made on the statement of Sh. Vikrant Kayan without providing any opportunity to the assessee to cross examine the same, which is in violation of principle of natural justice and against the law laid down by the Hon’ble Supreme Court of India in the case of Andaman Timber vs. CIT decided in Civil Appeal No. 4228 of 2006. For the sake of convenience, I am reproducing the relevant portion of the ITAT, SMC, Delhi Bench vide its order dated 06.11.2018 passed in ITA No. 3510/Del/2018 (AY 2014-15) in the case of Smt. Jyoti Gupta vs. ITO as under:-
“13. Merely on the strength of statement of third party i.e. Shri Vikrant Kayan cannot justify the impugned additions. Moreso, when specific request was made by the assessee for allowing cross examination was denied by the Assessing Officer. The first appellate authority also did not consider it fit to allow cross-examination.
This is in gross violation of the principles of natural justice and against the ratio laid down by the Hon'ble Supreme Court in the case of Andaman Timber Vs. CIT Civil Appeal
No. 4228 OF 2006 wherein it has been held as under:
“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 the correctness of the statements and wanted to cross-examine, the Adjudicating
Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross- examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No.
2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause. We, thus, set aside the impugned order as passed by the Tribunal and allow this appeal.”
Considering the facts of the case in totality, I do not find any merit in the impugned additions. The findings of the CIT(A) are accordingly set aside. The Assessing Officer is directed to allow the claim of exemption u/s 10(38) of the Act.”
Keeping in view of the facts and circumstances of the present case and respectfully following the order of the Tribunal, SMC Bench, Delhi in the case of Smt. Jyoti Gupta vs. ITO (Supra) and in view of the law settled by the Hon’ble Supreme Court of India in the case of Andaman Timber vs. CIT (Supra), on identical facts and circumstances, the addition in dispute is deleted and the appeal of the assessee is allowed.
In the result, the appeal filed by the assessee is allowed.