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Income Tax Appellate Tribunal, Hyderabad ‘B‘ Bench, Hyderabad
Before: Shri R.K. Panda, Vice- & Shri Laliet Kumar
आयकर अपील�य अ�धकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘B‘ Bench, Hyderabad Before Shri R.K. Panda, Vice-President AND Shri Laliet Kumar, Judicial Member आ.अपी.सं /ITA Nos.1836 to 1838/Hyd/2019 (िनधा�रण वष�/Assessment Years: 2008-09 to 2010-11) Shri Tikkavarapu Vinayak Vs. Dy. C. I. T. Ravi Reddy Circle 16(2) Hyderabad Hyderabad PAN:ABAPT1371Q (Appellant) (Respondent) आ.अपी.सं /ITA Nos.1839 to 1841/Hyd/2019 (िनधा�रण वष�/Assessment Years: 2008-09 to 2010-11) Shri Tikkavarapu Venkata Vs. Dy. C. I. T. Ram Reddy Circle 16(2) Hyderabad Hyderabad PAN:AAWPT6892M (Appellant) (Respondent) िनधा��रती �ारा/Assessee by: Advocate B Shanti Kumar राज� व �ारा/Revenue by:: Smt. Sheetal Sarin, DR सुनवाई की तारीख/Date of hearing: 26/03/2024 घोषणा की तारीख/Pronouncement: 27/03/2024 आदेश/ORDER Per Bench: These six appeals filed by both assessees are directed against the separate orders dated 23.09.2019 of the learned CIT (A)-4, Hyderabad relating to A.Ys. 2008-09 to 2010-11 respectively. Since common issues are involved in all these appeals, for the sake of convenience, these were heard together and are being disposed of by this common order. – A.Y 2008-09 2. Facts of the case, in brief, are that the assessee is the Chairman of M/s. Deccan Chronicle Holdings Ltd and is in receipt of income from salary, house property, business, capital gains and other resources. The assessee has filed his return of income for the A.Y 2008-09 on 30.09.2008 admitting an income of Rs.1,52,10,644/-. The same was processed on 11.01.2010 u/s 143(1) of the I.T. Act. Subsequently, the case of the assessee was reopened u/s 147, proposing to assess the income for the A.Y under consideration, by issuing notice u/s 148 dated 4.11.2013 after duly recording the reasons which was served on the assessee on 5.11.2013.
The assessment order was passed by the Assessing Officer whereby an addition of Rs.2.00 crores were made in the hands of the assessee on the basis of the disclosure made by the officials of the South Indian Educational Society. The findings of the Assessing Officer given in Para 9 to 9.3 of the assessment order are reproduced below: “9.0 The assessee's contentions were perused and considered thoroughly. The material available with the department was also taken into consideration. Based on the material available with the department, it is an established fact that the assessee has received Rs. 2.00,00.000 during the FY. 2008-09, from M/s South Indian Education Society, in cash. When the same is put forth before the assessee, he has requested for an opportunity to cross examine the person, from whom sworn statement was recorded. The assessee's request is conceded and it is to mention here that the evidence is not gathered by the undersigned, but send through official channels. Hence, it is informed to the assessee that the opportunity to cross examine the person cannot be given. However, the assessee was given an opportunity to obtain the copy of sworn statement recorded during the search proceedings U/s 132. But the assessee did not prefer to obtain the copy of sworn statement.
9.1 Further, it is to mention that the evidence gathered during the search proceedings have great evidentiary value and the same can be used as evidence in court of law. It shows the significance and importance of evidences gathered during the search proceedings, viz., sworn statements, impounded material. Further, the sworn statement were recorded by concerned ADIT/ DDIT, as a quasi - judicial authority and after duly administering Oath, as per the statutory guidelines. Hence, the statements given by the persons reflect the truth and only truth. 9.2 The assessee, during the complete scrutiny proceedings, merely claiming that he has not received any cash from M/s South Indian Educational Society. But the department has evidence, in the form of sworn statement, that the educational society has given cash to the assessee and in turn given cheques. In the absence of any contrary evidence, credence cannot be given to the assessee's claims. Mere claims do not relieve the assessee from the burden of proof. 9.3 Keeping in view of the above facts and on account of assessee's failure to submit any contrary evidence, the contentions of the assessee cannot be considered and thus rejected. Accordingly, an amount Rs. 2,00,00,000/- received in cash from M/s South Indian Educational Society is hereby added to the income, as unaccounted cash in the books of the assessee. [Additions. Rs, 2,00,00,000/-] Accordingly, the assessment for the AY.2008-09 is completed as under: Income Returned - Rs. 1,52,10,644/ 1. Addition on account of unaccounted cash. Rs. 2,00,00,000/-“
Aggrieved by the assessment order, the assessee preferred appeal before the learned CIT (A) on the following two grounds: “1. The notice issued by the Assessing Officer is bad in law and the reopening of assessment is not in accordance with the provisions of I.T law in as much as there is no tangible material on record. 2. The Assessing Officer erred both in law and on facts in relying on third party statements while making addition of Rs.2,00,00,000/- as unaccounted cash”.
The learned CIT (A) while adjudicating the above grounds has granted partial relief to the assessee in para 6.1 and 6.2 of his order as under:
“6.1 I have carefully considered the facts of the case, assessment order and the submissions of the appellant along with the details available. For this A.Y it is a fact that the appellant has issued cheques of Rs.2 Crores to the South Indian Educational Society Trust. As per the survey it is also evident that the appellant has given cheques and in turn received cash. For this A.Y the appellant claimed to have gave donation of Rs.2.00 crores and claimed eligible deduction u/s 80G of Rs.l.00 crore i.e 50% of the donation given. The Assessing Officer added Rs.2.00 crores as unaccounted receipts. This fact is not correct since the appellant has issued cheques of Rs.2 crores, Rs.1.00 Crore each on 02.08.2007 from the known sources. From the evidences available with the Assessing Officer and also information available from the survey u/s I33A, it is evident that the appellant has given cheques and received back cash. Since cheques were issued from known sources, therefore, cannot be treated as unaccounted. Hence, the addition made by the Assessing Officer is deleted. 6.2 At the same time the appellant has claimed deduction u/s 89 of Rs.1.00 crores was not to be allowed since the donation is bogus since the appellant has received back cash. Tus, the claim of deduction u/s 8G is not genuine. Hence, the deduction claimed of Rs. 1.00 crore is disallowed. Therefore, the Assessing Officer is directed to disallow deduction claimed u/s 80G of Rs.1.00 crore and brought to tax.”
Aggrieved with such order of the learned CIT (A) the assessee preferred appeal before the Tribunal. The assessee has not raised any other grounds except the grounds mentioned therein. However, the Tribunal has remanded back the matter to the file of the learned CIT (A) for deciding the issue afresh. The finding of the Tribunal in this regard is given in para 8 & 9 of its order which reads as under:
“
The learned CIT (A) decided the issue against the assessee vide order dated 23.9.2019 which is to the following effect:
The assessee before us has raised the following grounds: “
1. CIT (A) erred in upholding validity of reopening assessment u/s 147. 2. CIT (A) erred in rejecting claim of deduction u/s 80G of Rs.1,00,00,000/-. 3. Any other ground that may be urged at the time of hearing”.
8.1 The contention of the assessee before us that as per the request of the assessee, the Assessing Officer was required to provide copy of the underline material namely the statement of the Officer of the South Indian Educational Society and other documents on the basis of which the satisfaction was recorded by the Assessing Officer before reopening of the assessment. It was submitted that since the underlined documents have not been provided to the assessee, therefore, the assessment order passed by the Assessing Officer is bad in law.
Per contra, the learned DR relied on the orders passed by the learned CIT (A).
We have heard the rival arguments made by both the sides and perused the material available on record. The learned CIT (A) while passing the order on 13.07.2016 in Para 6.1 has accepted the source of giving donation to M/s. South Indian Educational Society. However, while granting relief to the assessee, the learned CIT (A) has denied the deduction of 80G to the assessee. Despite that, the assessee has not challenged the above said finding of the learned CIT (A) before the Tribunal in the first round of litigation, as it is clear from the grounds of appeals reproduced herein above. Since the assessee has not challenged the denial of 80G before the Tribunal in the first round of litigation, therefore, the assessee cannot be permitted to raise this ground before the Tribunal.
In our considered opinion, once the order of the learned CIT (A) dated 14.07.2016 have not been challenged before the Tribunal with respect to Ground No.2, then the order passed by the learned CIT (A) had attained finality and no adjudication can be made in that regard. Hence ground of appeal No.2 of the assessee is dismissed.
Now coming to the first issue raised before us which is in respect to the validity of the reopening of the assessment. In this regard it will be sufficient to mention that the reopening was made by the Assessing Officer by recording the following reasons:
The grievance of the assessee in the first round of litigation before the Tribunal was that the learned CIT (A) had not adjudicated the grounds of 147 despite the same was raised before the learned CIT (A). As mentioned herein above, after the remand by the Tribunal this issue has been thoroughly examined by the learned CIT (A) while passing the order in Para 3 to 3.4 of the order (Supra). All the contention of the assessee has been duly examined by the learned CIT (A). In our opinion, the contention that the assessee was not given the chance to cross examine, was not the subject matter of the appeal earlier filed by the assessee. Similarly, it was not the ground of the assessee before the CIT (A)/ ITAT that the underlined documents have not been provided to the assessee. Despite this, the learned CIT (A) had examined the issue and have decided the issue against the assessee. Further, if we accept the argument and grant opportunity to the assessee at this stage, then the issue which had attained finality either in favour of the assessee or against, the issue would again be required to be adjudicated by the Assessing Officer. In our opinion, the assessee cannot be worsened of in appeal filed by him as the relief already granted would be withdrawn.
Considering the totality of the facts of the case and more particularly when the addition have been deleted by the learned CIT (A) in the first round and only the issue of 80G deduction was denied, we do not find any merit in the present appeal of the assessee. Accordingly, the appeal of the assessee is dismissed. We hold and direct accordingly.
In the result, appeal filed by the assessee for the A.Y 2008-09 is dismissed.
In the remaining appeals, the assessees have raised similar grounds of appeal for the A.Ys 2009-10 & 2010-11 respectively. Since identical issues are raised by both the assessees for the A.Ys 2009-10 and 2010-11, following our reasonings given in for the A.Y 2008-09, the grounds raised by the assessee for the A.Ys 2009-10 & 2010- 11 are also dismissed.
To sum up, all the appeals filed by the respective assessees are dismissed.