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TMI Blog2022 (10) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... S Course. Since the Revenue alleged that the amount in question is paid by assessee for admission of his daughter to the Medical Course, therefore, the burden is very heavy upon Revenue to prove by positive evidence that assessee has in fact made the payment to the Medical College for admission for his daughter. However, no evidence is available on record to prove such contention and initial denial of the assessee itself supports the explanation of assessee that no amount is paid by assessee for admission of his daughter in Medical Course. As decided in Shri Naresh Pamnani, Delhi [ 2019 (3) TMI 1787 - ITAT DELHI] assessing officer did not record in the assessment order if statement recorded at the back of the assessee by the Investigation Wing, was allowed for cross examination on behalf of the assessee at any stage, therefore, statement of third party, cannot be used against the assessee unless assessee has been allowed a right to cross-examine such statement. A.O. in the assessment order also did not mention, if any, material found during the course of search, was confronted to the assessee. Thus, assessee was justified in denying in making any cash payment at any stage. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S during the year under consideration. The A.O. issued statutory notices to the assessee under sections 147 and 142(1) requiring the assessee to furnish full details and documents and the return of income for the A.Y. 2013-14. During the course of assessment proceedings, the assessee denied that he had made payments of Rs.19,50,000/- in cash to the Institution towards capitation fee/donation. However, the A.O. was not satisfied with the explanation furnished by the assessee and treated the amount of Rs.19,50,000/- as income escaping assessment under section 147 of the I.T. Act, 1961 and added the same back to the income of the assessee and determined the total income of the assessee at Rs.23,20,580/- as against the returned income of assessee at Rs.3,70,580/- under section 143(3)/147 of the I.T. Act, 1961 vide order dated 08.12.2016 and initiated penalty proceedings under section 271(1)(c) of the I.T. Act, 1961 separately. 2.1. The assessee challenged the initiation of reassessment proceedings under section 148 of the I.T. Act and addition on merit before the Ld. CIT(A). The Ld. CIT(A) did not accept the contention of assessee as regards initiation of re-assessment proceedings a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gahlot was included at S.No.34 in the list of cash received of Rs.23 lakhs on 10.07.2012 as noted by the Ld. CIT(A) in his order at para No.4.1 at page-3 and 4 of the order. Since the assessee failed to prove that he has not paid any capitation fee/donation towards admission of his daughter Ms. Manjeet Singh Gahlot in MBBS Course in Santosh Medical College/Maharaji Educational Trust, he, submitted that addition have been rightly made in the hands of assessee and that reopening of the assessment is wholly justified. He, therefore, prayed that the order of the Ld. CIT(A) be confirmed. 6. I have heard the Learned Representatives of both the parties and perused the material on record. 7. I have considered the rival submissions of both the parties and perused the material on record. It is not in dispute that the assessee has filed original return of income for the assessment year under appeal on 30.09.2013 declaring income of Rs.3,70,580/-. Such fact is also mentioned in the assessment order. Copy of the notice under section 148 and reasons for the belief that income has escaped assessment are filed at page-13 and 14 of the PB in which the A.O. has recorded that as per informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UDICIAL MEMBER ITA.Nos.1561/Del./2018 Assessment Year 2010-2011 Shri Naresh Pamnani, Delhi.PAN AAFPP4406J C/o. Matta Associates, 877, Aggarwal Cyvber Plaza-II, Netaji Subhash Place, Pitampura, Delhi-034. vs. The Income Tax Officer, Ward-61(5), Civic Centre, SP Mukherjee Marg, New Delhi. (Appellant) (Respondent) For Assessee : Shri Ajay Kumar Matta, C.A. For Revenue : Shri S.L. Anuragi, Sr. D.R. Date of Hearing : 25.02.2019 Date of Pronouncement : 05.03.2019 ORDER This appeal by assessee has been directed against the Order of Ld. CIT(A)-27, New Delhi, Dated 29th January, 2018, for the assessment year 2010-2011. 2. Briefly the facts of the case are that assessee filed return of income declaring income of Rs.29,14,950/-. An information was received from DDIT, Investigation, New Delhi, on the basis of which, the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessee raised specific ground on merit to challenge the addition on merit, but, the Ld. CIT(A) without any reason noted in the impugned order that assessee has not raised any ground in this regard. He has submitted that Ld. CIT(A) has reproduced all the grounds in the appellate order, in which, in Ground No.6, assessee has challenged the addition of Rs.19,75,000/-. He has submitted that A.O. or the Investigation Wing have not supplied copy of the statement of Dr P Mahalingam to him for rebutting his statement and no cross-examination to his statement have been allowed at any stage, therefore, this statement cannot be read in evidence against the assessee. He has referred to the statement of assessee recorded at assessment stage, copy of which is filed on record, in which he has denied to have paid any amount to Dr P Mahalingam or the above college as capitation fees. He, therefore, submitted that since no material has been confronted to assessee, therefore, no addition could be made against the assessee. 6. On the other hand, Ld. D.R. relied upon orders of the authorities below. 7. After considering the rival submissions, I am of the view that addition on merit is who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of reassessment proceedings and have also cited various case Laws and Ld. D.R. also submitted written submissions. However, in view of the fact that addition on merit have been deleted, the issue of reopening of assessment is left with academic discussion only. I do not propose to decide the same. In view of the above, appeal of assessee is allowed. 9. In the result, appeal of Assessee is allowed. 7.1. Considering the totality of the facts and circumstances of the case noted above in the light of material on record as well as Order of the Tribunal in the case of Shri Naresh Pamnani, Delhi (supra), I am of the view that no addition could be made against the assessee of the impugned amount. In view of the above, I set aside the Orders of the authorities below and delete the entire addition in the hands of the assessee. Since the addition on merit have been deleted, therefore, the issue of reopening of the assessment is left with academic discussion only and I do not propose to decide the same. In view of the above, appeal of the assessee is allowed. 8. In the result, appeal of the Assessee is allowed. Order pronounced in the open Court on 04.10.2022. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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