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TMI Blog2021 (10) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration before us is, as to whether, the amount written in pencil and impounded from the third person, can be taken as basis for adding the amount to the income of the assessee. It is also noted in the orders of lower authorities that some students have admitted of giving donation for taking admission but in the case of the assessee, he has denied to give any donation for the admission of his son. Merely because some students/parents have admitted, that cannot be used against the assessee without any plausible materials - Decided in favour of assessee. - ITA No. 04/Ind/2020 - - - Dated:- 29-9-2021 - S/SHRI C.M. GARG, JUDICIAL MEMBER AND MANISH BORAD, ACCOUNTANT MEMBER Assessee by : Shri S.S.Deshpande, CA Revenue by : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which, he has taken admission by giving donation of ₹ 3,50,000/- in cash and also by DD No.53550. Since this amount was not disclosed in the return of income, the AO treated the same as payment from undisclosed source and added the same to the income of the assessee. 4. On appeal also, the assessee denied the cash payment for securing admission in MBBS source of his son. It was submitted that the assessment has been framed on the basis of documents found and impougned from the beiefcase of Shri Ram Vilas Vijayavargiya, which were impounded during the course of TDS survey on 9.8.2005. Since this is not a valid evidence, therefore, cannot be a basis for reopening of assessment and consequently adding the same to the income of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the orders of lower authorities. He submitted that the addition has been made on the basis of materials impounded during the course of survey. Hence, no interference in the order of ld CIT(A) is called for. 7. We have heard the rival submissions and perused the records of the case, inter alia, the decisions relied by ld A.R. of the assessee. It is an admitted fact that during the course of survey, some loose papers were impounded and on the basis of same, it was gathered that some students have taken admission in MBBS course by giving donation. Out of those students, the name of the assessee s son is appearing having paying ₹ 3,50,000/-. But the issue for consideration before us is, as to whether, the amount written in pencil and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56 on which heavy reliance has been placed by the AO is nothing but a piece of paper containing details of number of seats allotted to Management Quota and Government Quota. This document cannot be said to be even an incriminating document because this is a declared truth which is also recorded in the books of the trust. The statement recorded after the verification cannot be accepted without doubt. So, we can safely conclude that document No. 56 cannot be treated as incriminating document by any stretch of imagination. Nothing incriminating is scribe on it. Nothing has been mentioned on this piece of paper regarding collection of any capitation fees or even the amount of fees which is legally chargeable. Hence, we cannot give meaning in on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the students was reflected in the books of account. This statement confirms the contention of the assessee that some well wishers were giving donations which were duly received and reflected in the books of account. In fact, the statement of Dr. N.M. Veeraiyan was recorded under s. 131 on 9th Nov., 2007 which has also been made a basis for this addition. He was not examined under s. 132(4) of the Act. A statement made under s. 131 cannot be equated with a statement recorded under s. 132(4) of the Act. A statement recorded under s. 132(4) is a valid and relevant piece of evidence but a statement recorded under s. 131 is not so relevant. Nevertheless, even a statement recorded under s. 132(4) can not be made a sole basis for any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Departmental Representative that the letter dt. 26th Aug., 2003 written by the Director of Medical Education/Chairman, Grievance Committee alleging that the assessee was charging excess fee against the prescribed fee structure would prove the receipt of capitation fees by the assessee particularly when this is a search case and nothing was found during search to support this allegation. The decisions of Hon ble Supreme Court in the case of CIT vs. Durga Prasad More 1973 CTR (SC) 500 : (1971) 82 ITR 540 (SC) and Sumati Dayal vs. CIT (1995) 125 CTR (SC) 124 : (1995) 214 ITR 801 (SC), which speak about human probabilities and realities which have to be taken into consideration while dealing with income-tax matters. In fact, this is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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