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TMI Blog2023 (9) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... en in the present case, the assessee has been deprived of with the opportunity of cross-examining Chairman[ Medical College] which was ultimately resulted in making the addition of similar nature, in our opinion, the addition made by the Revenue is in violation of the natural justice which requires to be interfere. By relying the order of the Co- ordinate Bench of ITAT, Delhi, we allow the grounds of appeal of the Assessee and delete the addition made by the AO which was confirmed by the Ld. CIT(A). X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) has erred on facts and in circumstances of the case and in law by not appreciating the fact that the order passed by Ld. Assessing Officer were also wrong and not tenable, because of getting and granting the approval by the Addl. CIT, on a mechanical manner u/s 151 of the Income Tax Act, 1961. 7. That the appellant craves, leave to add, modify and/or delete any of the ground of appeal at the time of hearing of appeal, if deemed necessary, in the interest of justice and equity." 4. There is a delay of 159 days in filing the present appeal and the assessee filed an application for condoning the delay and relied on the order of the Hon'ble Supreme Court in suo moto writ petition (Civil) No.3/2020 dated 23/03/2020 wherein the Hon'ble Supreme Court has relaxed the limitation period due to Covid-19 pandemic situation. Considering the fact that the order of the Commissioner has been passed on 21/01/2020 and by relying on the order of the Hon'ble Supreme Court in suo moto writ petition No.3/2020 dated 23/03/2020, the delay of 159 days in filing the present appeals are condoned. 5. First, we take up the assessee's appeal in ITA No.1576 for AY 2010-11 and consider the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ld. CIT(A) is on the statement of Dr. P. Mahalingam of Santosh Medical College received from DDIT (Inv.) New Delhi and possessed by Ld. Assessing Officer which did not confirmed that the assessee has paid the donation/capitation fee of Rs. 50,00,000/- in cash at the time of admission of his daughter in Santosh Medical College, Ghaziabad, against whom the proceedings have been invoked/initiated u/s 147/148 of the Income Tax Act, 1961. Therefore submitted that, the assessment completed has become invalid. Further submitted that, the assessee has not been given opportunity of cross examination of the said Dr. P. Mahalingam of Santosh Medical College, which violated the principles of natural justice. Even after seeking specific permission, the authorities have failed to secure the person who has given the alleged statement against the assessee. Further, the Ld. Counsel for the Assessee has also relied on the order of the Tribunal in the case of Sulekha Chand Singhal Vs. ACIT in ITA No. 6700/Del/2019 and submitted that the Assessee's case is squarely covered by the said order of the Tribunal. Therefore, submitted that the additions made by the AO which was confirmed by the Ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by Santosh Trust. Q. 65 It is seen that the above referred registers contain entries of amounts received from the candidates. Please explain whether the receipts are accounted for in the regular books of account. If yes, then please give the name of the entity in whose books the receipts are accounted and please produce the same. Ans. These receipts mentioned in the registers are partly accounted for in the regular books of account of Santosh Trust. The entire receipts are not entered in the books of account. I will who you the entries in the books of Santosh Trust later since due to last more than 48 hours of search action I am unable to get the details located. Q. 66 Please go through the above referred registers and work out the amount of unaccounted receipts register wise, financial year wise ? Ans. I have gone through the above referred registers annexurized as A-44 to A-64, I have got the unaccounted receipts complied with the help of Sh. Kamala Kannan, Financial Controller in Santosh Trust. The register- wise compilation is submitted herewith to be attached as annexure to this statement. The total unaccounted receipts register-wise works out as under." 14. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear at the appellate stage, therefore, the fact remained that assessee has been denied right to make cross-examination to the statement of Dr. P. Mahalingam. It is well settled Law that any adverse material collected at the back of the assessee when not confronted and that if any statement is recorded by the A.O./Revenue Department at the back of the assessee and such statement is not allowed for cross-examination on behalf of the assessee, such material cannot be considered against the assessee in the Income Tax proceedings and such material/statement cannot be read in evidence against the assessee. We rely upon Judgments of the Hon'ble Supreme Court in the case of Kishanchand Chellaram 125 ITR 713 (SC) and Andaman Timber Industries 281 CTR 214 (SC). Thus, the statement of Dr. P. Mahalingam cannot be relied upon against the assessee. There is no other material available on record so as to make any addition against the assessee. Thus, onus upon the Revenue Department to prove that assessee paid cash to Dr. P. Mahalingam or the Medical College is not discharged in the present case. In view of the above discussion, we set aside the Orders of the authorities below and delete the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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