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TMI Blog2016 (7) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment in the particular assessment year. Bonafide of the reasons can be looked into by this Tribunal. It is a case where, in our opinion, the reasons recorded are bonafide. In this case the assessee has asked the Assessing Officer which is apparent from para 8.1 of the assessment order to make available the person who has made the entries in the documents, which were seized from Santosh Medical College, Ghaziabad i.e. the third party and to produce the same to cross examine him. AO instead of providing the said party to the assessee for his cross examination, asked the assessee to bring a certificate from the college i.e. from that third party that no cash payment of ₹ 23,00,500/- was made by the assessee at the time of admission of his son. This action of AO clearly proves that the addition has been made by the Assessing Officer on the basis of the evidence found from the third party and as has been recorded by the third party. It is undisputed fact that the documents on the basis of which addition has been made in the case of the assessee were not found from the assessee. The entries are also not in the hand writing of the assessee in the documents found during the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 132 of the I.T. Act. 1961, carried out on 27.06.2013 in the case of M/s Santosh Group of Institutions Dr. P. Mahalingham. During the course of search, certain documents/ books of accounts were seized from the premises H-l to 6, Santosh Nagar, Pratap Vihar, the main administrative block of the college in which receipts of the donation/capitation fee, over above the regular course fees, paid in cash by the parents of students taking admission. As per above information Sri Ram Pratap father of Sri Ajay Pratap Singh (candidate) had paid donation/capitation fee amounting to ₹ 23,00,000/- on 14.7.2006 in cash. The above facts has not been verifiable from the records of this office. Accordingly, expenditure made by assessee towards payment of capitation fees mentioned above is not verifiable, therefore I have reason to believe that income to the tune of ₹ 23.00.000/- has escaped to assessment for the A.Y. 2007-08. Hence, it is a fit case for issue of notice u/s 148 of the I.T. Act, 1961. 3.1 From the reasons to believe, it is apparent that the Assessing Officer has initiated the proceedings on the basis of the information received from Dy. Director of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear. Bonafide of the reasons can be looked into by this Tribunal. It is a case where, in our opinion, the reasons recorded are bonafide. We, therefore, dismiss ground Nos. 1 to 4 taken by the assessee. 4. Ground Nos. 5 to 8 of the appeal relate to the sustenance of addition of ₹ 23,00,500/- by the CIT(A). The brief facts related to this issue are that the assessee s son Ajay Pratap Singh appeared in Pre Medical Examination for M.B.B.S. course provided by Santosh Medical College, Ghaziabad. The assessee had paid the requisite fees through DD issued in favour of Santosh Medical College, Ghaziabad. There had been search in the case of Santosh Group of Institutions and Dr. P. Mahalingham carried out on 27/06/2013 in which the fees paid through DD was shown. However, in addition to this, a cash payment was also mentioned. The assessee, during the course of assessment proceedings, through an affidavit and also through statement on oath recorded by the Assessing Officer, specifically denied that he has not paid any cash. He does not know how the college has mentioned his name. The security deposit for hostel fees was duly refunded to Ajay Pratap Singh through cheque. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to crossexamine, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. The entries are also not in the hand writing of the assessee in the documents found during the course of search at the third party. It is a case where the third party has mentioned the name of the assessee. Therefore, the third party are the evidence of the Revenue for making the addition in the hands of the assessee. The Revenue is bound to produce these witnesses when the assessee asked for his cross examination as in our opinion, the statement and the documents of the third party was the witness of the Revenue. No contrary decision was brought to our knowledge. The decision of Hon'ble Supreme Court in the case of Andman Timber Industries is binding on us. Respectfully following the said decision, we delete the addition of ₹ 23,00,500/-. In our opinion, the addition has been made on the basis of material collected on the back of the assessee and for which no opportunity for cross examination has been given to the assessee. We, therefore, set aside the order of CIT(A) and delete the addition of ₹ 23,25,500/-. 6. In the result, the appeal of the assessee stands partly allowed. (Order pronounced in the open court on 27/07/2016) - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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