9911796707
TMI Blog2009 (12) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... ound No. 1 of the assessee' s appeal are inter-connected which read as under : I. T. A. No. 3804/Del/09 (for the assessment year 2007-08) (revenue' s appeal) : " 1. The learned Commissioner of Income-tax (Appeals) has erred both in law and on facts of the case in treating the receipts of Rs.18,87,000 as ' double addition' even when he has categorically arrived at the finding that the amount involved was nothing but ' capitation fees' as concluded by the Assessing Officer. 2. The learned Commissioner of Income-tax (Appeals) has further erred both in law and on facts of the case in accepting the receipt of Rs. 18,87,000 as advance fees and holding that out of the said receipt, a sum of Rs. 3,60,400 pertains to the assessment year 2007-08 and the balance pertains to subsequent assessment year when he himself has held that the said receipt was nothing but ' capitation fee' ." I. T. A. No. 3557/Del/09 (for the assessment year 2007-08) (assessee' s appeal) : " 1. On the facts brought on record before the Commissioner of Income-tax (Appeals), the Commissioner of Income-tax (Appeals) passing an order thereby making an addition of Rs. 3,60,400 while agreeing in his order that the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Raj Kr. S/o Ravinder Kr. Khandelwal. AIEEE College fee 32,000 Raj Kr. S/o Ravinder Kr. Khandelwal H.Fee H. fee 1,28,000 Anil Kataria, S/o Sukhbeer Kataria Mech. Mech. Nil In the books of account of the assessee, which were produced before the Assessing Officer, it was shown that Shri Manoj Kumar has paid Rs.1,00,000 on July 20, 2007 as advance fee and receipt No. 1 was issued to him for that. This advance was adjusted against his dues by issuing further receipt to him for Rs. 15,200 and Rs. 15,300 on February 17, 2006 and November 17, 2007. Accordingly, an amount of Rs. 48,780 stood adjusted and Rs. 41,220 was shown as outstanding to his credit. It is further noted by the learned Commissioner of Income-tax (Appeals) that similar was the position with regard to other students, names of which have been mentioned in the above paragraph. It is further noted by the learned Commissioner of Income-tax (Appeals) that similar information was found to be contained on page 12 of annexure A 62 which is dated July 27, 2006. The contents of this seized paper are reproduced by the learned Commissioner of Income-tax (Appeals) on page 3 of his order which is as under: Balance 20,000 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the learned Commissioner of Income-tax (Appeals). It was held by the learned Commissioner of Income-tax (Appeals) that the Assessing Officer was justified in holding that the amount of Rs. 18.87 lakhs constituted capitation fees received by the assessee but he was not justified to enhance the income of the assessee again by the same amount because the assessee has shown this amount as advance fees received by the assessee and the assessee is following the cash system of accounting. Thereafter, it is noted by the learned Commissioner of Income-tax (Appeals) on page 9 of his order that as per the details filed by the assessee, the second term fees received from these two students during the month of November, 2006 was Rs. 3,60,400 and the other instalments of the fees received from these students fall in the subsequent assessment year. On this basis, it was held by the learned Commissioner of Income-tax (Appeals) that addition of Rs. 3,60,400 was required to be made to the return of income of the assessee. In this manner, the learned Commissioner of Income-tax (Appeals) has confirmed the addition of Rs. 3,60,400 out of the addition made by the Assessing Officer of Rs. 18.87 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecome final. We have to decide regarding the addition of Rs. 18.87 lakhs made by the Assessing Officer as undisclosed income out of which the learned Commissioner of Income-tax (Appeals) has confirmed the addition of Rs.3,60,400 and in this regard, we find that as per the Assessing Officer also, out of this amount of Rs. 18.87 lakhs, a sum of Rs. 50,000 was refunded to one student Shri Sandeep Kumar on September 2, 2006 and the balance amount is only Rs. 18.37 lakhs. Out of this, the assessee has credited an amount of Rs. 14,76,600 to the income and expenditure account under the head advance fees. Since this amount has been credited by the assessee to income and expenditure account, no addition can be made for this amount. Regarding the balance amount of Rs. 3,60,400 (Rs. 18.37 lakhs Rs. 14,76,600), we find that this is the submission of the assessee that this amount was also credited to the income and expenditure account as the same was included in tuition fees because the same was adjusted against the second semester fees. We find that this is not the case of the Assessing Officer that Rs. 3,60,400 was received by the assessee over and above this amount of Rs. 18.87 lakhs out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese statements were not considered by the Assessing Officer. The affidavit of Shri Surinder Miglani was also filed during the assessment proceedings wherein whatever had been recorded in the statement earlier during the course of search which was claimed to be not given under free consent but the Assessing Officer did not accept the affidavit of Shri Surinder Miglani that he was not an assessee when his statement was recorded and therefore his statement was not recorded under section 132(4) of the Income-tax Act, 1961. It was further held by the Assessing Officer that there was no material on record that the statement was recorded under duress. Under these facts, the Assessing Officer considered it reasonable to disallow the expenses claimed as salary of staff during the present year at Rs. 59,82,757 by the same ratio as brought out from the statement of oath of Shri Om Parkash Miglani, i.e., Rs. 10,000, Rs. 13,150. This resulted in disallowance of Rs. 14,33,132 which was disallowed by the Assessing Officer. Being aggrieved, the assessee carried the matter in appeal before the learned Commissioner of Income-tax (Appeals) who has deleted this disallowance and now the Revenue is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entire assessment order on the basis of statement of one such employee, he has ignored the statements of other 11 similar employees. If the statements of all these 11 persons are considered, the adverse inference drawn by the Assessing Officer against the appellant is not sustainable. In addition to the above evidence, the Assessing Officer has himself mentioned that he was making addition on the basis of certain circumstantial evidence. The circumstantial evidence may be important for deciding an issue in the assessment proceedings in a normal case. However, in my opinion, when an assessee is subjected to search and all the important premises are covered, there could not be any scope for making such huge additions on the basis of circumstantial evidence. The finding of blank signed cheque books of the employees have been considered for adverse inference by the Assessing Officer. However, as brought out in paragraph 10.2 of the assessment order itself, in the statement recorded during the course of search itself, Shri Anil Sharma, accountant of SITM has duly explained the reasons for the same. What has been stated by Shri Anil Sharma is the consistent stand of the appellant rig ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
