DCIT, Central Circle-1, Hyd, Hyderabad V. K.T. Mahi, Hyd, Hyderabad

CO 72/HYD/2015

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2170 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 26-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B KURMI NAIDU
• Assessee Lawyers: AJAY GANDHI
• Keywords: Condonation of delay; Revised return
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER S.NO. ITA NO./ C.O. AY APPELLANT/ CROSS OBJECTOR RESPONDENT 1 & 2 119/H/14 & 120/H/14 2006-07 & 2008-09 K.T. MAHI, HYD PAN AHLPK7131J ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 1, HYD. 3 TO 9 268 TO 274/H/14 2004-05 TO 2010-11 DY. COMMISSIO- NER OF INCOME-TAX, CENTRAL CIRCLE 1, HYD. K.T. MAHI, HYD PAN AHLPK7131J 10 TO 14 C.O. NOS. 69 TO 73/H/15 (IN ITA NOS. 268, 269, 271, 273 & 274/H/14) 2004- 05, 2005- 06, 2007- 08, 2009-10 & 2010- 11 K.T. MAHI, HYD PAN AHLPK7131J DY. COMMISSIO- NER OF INCOME-TAX, CENTRAL CIRCLE 1, HYD. ASSESSEE BY: SRI AJAY GANDHI RESPONDENT BY: SRI B. KURMI NAIDU DATE OF HEARING: 29/01/2016 DATE OF PRONOUNCEMENT: 11/03/2016 O R D E R PER BENCH: THESE APPEALS ARE FILED BY THE REVENUE FOR AY 200 4-05 TO 2010-11, ALSO TWO APPEALS ARE FILED BY THE ASSES SEE FOR AY 2006-07 AND 2008-09, AND FOUR CROSS OBJECTIONS AGA INST THE ORDER OF CIT(A) I, HYDERABAD DATED 23.12.2013. SINC E IDENTICAL ISSUES ARE INVOLVED, THESE ARE TAKEN UP TOGETHER AN D ADJUDICATED TOGETHER FOR THE SAKE OF CONVENIENCE. I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 2 2. THE FACTS IN BRIEF ARE THAT A SEARCH AND SEIZUR E OPERATION U/S 132 OF THE INCOME TAX ACT 1961 (IN SH ORT ACT) WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE AS SESSEE ON 10.09.2009. SUBSEQUENT TO THE SEARCH, A NOTICE U/S 153A OF THE ACT WAS ISSUED ON 13/07/2010 FOR ASSESSMENT YEA RS 2004- 05 TO 2009-10 AND THE SAME WAS SERVED ON 30.08.2010 . IN RESPONSE TO THE NOTICES, ASSESSEE FILED RETURN OF I NCOME. NOTICES U/S 143(2) AND U/S 142 WERE ISSUED. THE ASS ESSEE IS THE MAIN PERSON BEHIND SREENIDHI GROUP. HE IS ALSO THE SECRETARY/ CORRESPONDENT OF THE SREE EDUCATIONAL SO CIETY, WHICH IS RUNNING M/S SREENIDHI INSTITUTE OF SCIENCE & TECHNOLOGY (SNIST). THE GROUP ALSO RUNS SCHOOLS, C& F AGENCIES AND PRINTING PRESS. 2.1 DURING THE COURSE OF SEARCH AT THE PREMISES OF THE ASSESSEE, THE FOLLOWING ASSETS WERE FOUND AND SEIZE D: ASSETS FOUND SEIZED CASH RS. 2,84,110/- RS. 2,00,000 JEWELLERY RS. 22,36,380/- RS. 8,59,680/- 3. UNDISCLOSED RECEIPTS: DURING THE COURSE OF SEARCH AT THE OFFICE PREMISES OF SRI K T MAHI AT THE DOMALGUDA, CERTAIN PAPERS/DOCUMENTS AND SPIRAL BOUND BOOKS WERE FOUND AND SEIZED AT A/SNIST /OFF/35 TO 41 AND A/KTMGH/4 &6. THE SAID BOOKS WERE FOUND ON THE OFFICE TABLE OF SRI RAMESH BABU WHO IS THE MAIN CON TACT PERSON FOR ADMISSIONS INTO THE SNIST. THESE BOOKS C ONTAINED DETAILS OF AMOUNTS COLLECTED FROM THE PARENTS OF TH E STUDENTS FOR ADMISSION UNDER MANAGEMENT QUOTA TO VARIOUS COU RSES RUN BY THE EDUCATIONAL INSTITUTIONS RUN BY THE GROU P. SRI RAMESH BABU, FROM WHOSE POSSESSION THE SAME WERE FO UND AND SEIZED, HAD STATED THAT THE SAID BOOKS REFLECT THE AMOUNTS OF CASH RECEIVED FROM VARIOUS PERSON AS I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 3 CONSIDERATION FOR COURSES OFFERED TO THEM AND SAID CASH WAS USED BY SRI RAMESH BABU FOR DEPOSITING THE SAME INT O SRI K T MAHIS INDIVIDUAL BANK ACCOUNT. THE SAME MONEY WAS ALSO STATED TO HAVE BEEN USED BY SRI K T MAHI FOR HIS PE RSONAL PURPOSES, LIKE INVESTMENT IN REAL ESTATE, LANDED PR OPERTIES AND FOR HIS OTHER PERSONAL EXPENDITURE. 3.1 ON PERUSAL OF THE SEIZED BOOKS, THE AO FOUND TH AT THE BOOKS CONTAINS THE DETAILS OF PERSONS WHO HAVE PAID VARIOUS AMOUNTS TO SRI RAMESH BABU WHICH IN TURN ARE DEPOSI TED INTO THE PERSONAL BANK ACCOUNTS OF SRI K T MAHI, VIZ., H IS PERSONAL BANK ACCOUNTS AT ANDHRA BANK, SULTAN BAZAR, BRACH, HYDERABAD AND INDIAN BANK, HIMAYAT NAGAR BRANCH, HYDERABAD. IT WAS ALSO NOTICED THAT THE CASH AMOUNT S COLLECTED BY SRI M RAMESH BABU ARE NOT REFLECTED IN THE BOOKS OF ACCONTS OF SNIST AND IN THE BOOKS OF THE ASSESSE E AS WELL. THE TOTAL OF THE AMOUNTS RECEIVED BY SRI RAMESH BAB U AND ALSO SEIZED MATERIAL AA/KTMGH/4 & 6 HAD BEEN WORKE D OUT AS UNDER: S . N O. AY AMOUNTS COLLECTED FROM STUDENTS(RS. ) AS PER SEIZED ANNEXURE AMOUNTS REDUCED ON ACCOUNT OF FEES AND REFUNDS (RS.) BALANCE UNACCOUNT ED RECEIPTS SEIZED MATERIALS REFERENCE 1 2005- 06 2060000 198000 1862000 A/SNIST/OFF/3 5 TO 41 AA/KTMGH/04 & 06 2 2006- 07 17279000 3762000 13517000 -DO- 3 2009- 10 129620000 39175300 90044700 -DO- 4 2010- 11 81565200 21162300 60402900 -DO- TOTAL 166226600 3.2 VARIOUS STATEMENTS OF SRI K T MAHI WERE RECORDE D ON 03.11.2009, 04.11.2009 AND 05.11.2009 U/S 131. IN I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 4 CONTINUATION OF SEARCH PROCEEDINGS, A STATEMENT U/S 132(4) OF ACT WAS RECORDED ON 06.11.2009 FROM THE ASSESSEE AT THE OFFICE PREMISES OF SREE GROUP OF CONCERNS. IN HIS S TATEMENT, HE HAS STATED THAT CONSIDERING THE FACTS AND CIRCUM STANCES OF HIS CASE WITH A VIEW TO SET RIGHT THE LAPSES, OMISS IONS AND COMMISSIONS IN HIS INDIVIDUAL BUSINESS AFFAIRS AND ALSO COVERING ALL THE LAPSES INVOLVED IN THE MATERIAL SE IZED BY THE DEPARTMENT DURING THE COURSES OF SEARCH OPERATIONS AND TO AVOID PROTRACTED LITIGATION WITH THE DEPARTMENT AS WELL AS THE CONSEQUENT PENAL PROVISIONS AND TO PURCHASE PEACE, HE HAS COME FORWARD VOLUNTARILY TO DECLARE AN AGGREGATE I NCOME OF RS. 16.50 CRORES IN HIS INDIVIDUAL HANDS COVERING T HE FINANCIAL YEARS COMMENCING FROM 01.04.2003 TILL THE DATE OF S EARCH. THE ABOVE STATEMENT OF THE ASSESSEE WAS FOLLOWED BY FI LING OF LETTERS DATED 04.12.2009 AND 22.12.2009 WITH DETAIL ED BREAK UP OF AMOUNT DISCLOSED AND THE REASONS FOR DISCLOSU RE. THE ABOVE DISCLOSURE WAS FURTHER CONFIRMED BY AN AFFIDA VIT DATED 06.11.2009 FILED BY HIM IN CONTINUATION OF HIS DISC LOSURE MADE U/S 132(4) OF THE ACT. THE ASSESSEE HAD DECLARED TH E BREAK UP OF RECEIPT FOR VARIOUS YEARS AS DETAILED BELOW: F.Y. AMOUNT DECLARED (RS.) 2004-05 15,00,000 2005-06 1,30,00,000 2006-07 2,00,000 2007-08 3,00,000 2008-09 9,00,00,000 2009-10 6,00,00,000 TOTAL 16,50,00,000 4. QUANTIFICATION OF RECEIPTS BASED ON SEIZED MATER IAL: 4.1 AO QUANTIFIED THE UNDECLARED RECEIPTS ON THE BA SIS OF SEIZED MATERIALS DURING SEARCH AND THE SAME WAS GIV EN BELOW: I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 5 AY AMOUNT DECLARED (RS.) AMOUNT COMPUTED (RS.) UNACCOUNTED RECEIPTS BROUGHT TO TAX (RS.) 2004-05 2005-06 15,00,000 18,62,000 18,62,000 2006-07 1,30,00,000 1,35,17,000 1,35,17,000 2007-08 2,00,000 2,00,000 2008-09 3,00,000 3,00,000 2009-10 9,00,00,000 9,04,44,700 9,04,44,700 2010-11 6,00,00,000 6,04,02,900 6,04,02,900 TOTAL 16,50,00,000 16,62,26,600 16,67,26,600 EXTRAPOLATION OF UNDECLARED RECEIPTS: 4.2 IN THE OPINION OF THE AO, THE ASSESSEE WAS COLL ECTING CAPITATION FEES FROM STUDENTS FOR ALL THE ASSESSMEN T YEARS. DRAWING SUPPORT FROM THE DECISION OF HONBLE AP HIG H COURT IN THE CASES OF RAJNIK & CO VS ACIT (251 ITR 561) AND HM ESUFALI (90 ITR 271), WHICH UPHOLDS THE ESTIMATION OF THE SUPPRESSED INCOME BASED ON THE PART PERIOD EVIDENCE S AND SWORN DEPOSITION OF PARTNER OF ASSESSEE-FIRM, THE ASSESSING OFFICER HELD THAT A REASONABLE GUESS WORK BASED ON NEXUS TO THE MATERIAL FOUND DURING THE COURSE OF SEARCH IS R EQUIRED. AO NOTED EVEN IN THE CASE OF M/S BAWARCHI RESTAURANT V S DCIT, THE HONBLE ITAT, HYDERABAD IN THEIR ORDER IN ITA 117/HYD/2005, HAVE OBSERVED THAT WHEN THE ASSESSEE IS IN THE HABIT OF SUPPRESSING TURNOVER CONSISTENTLY, THE ONL Y ISSUE TO BE EXAMINED IS WHETHER THE AOS ESTIMATION OF UNDISCL OSED TURNOVER IS FAIR, BONA FIDE AND REASONABLE. 4.3 AO ESTIMATED THE INCOME OF THE YEARS WHERE NO EVIDENCE WAS FOUND, AS UNDER: S. NO. ACADEMIC YEAR AY NO. OF MANAGE MENTS SEATS ESTIMATED EXCESS AMOUNT COLLECTED TOTAL AMOUNT 1 2003-04 2004-05 78 1,00,000 78,00,000 2. 2004-05 2005-06 77 1,50,000 1,15,50,000 I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 6 3 2005-06 2006-07 4 2006-07 2007-08 115 2,50,000 2,87,50,000 5 2007-08 2008-09 130 3,00,000 3,90,00,000 5. IN THE AY 2008-09, THE AO FURTHER NOTICED THAT THOUGH IN THE ORIGINAL RETURN OF INCOME AN AMOUNT OF RS. 59,7 0,000/- HAD BEEN SHOWN BY THE ASSESSEE AS LAND LEASE RENTS RECE IVED FROM M/S SREE EDUCATIONAL SOCIETY, WHEREAS IN THE R ETURN FILED IN RESPONSE TO NOTICE U/S 153A, THE SAME WAS REDUCE D TO RS. 8,95,500/- ONLY. IT WAS EXPLAINED THAT IN VIEW OF T HE LEASE DEED MODIFICATION AGREEMENT DT 20.09.2006, THE SOC IETY HAD INCREASED THE MONTHLY RENT FROM RS. 1000/- TO RS.37 50/- PER ACRE. ACCORDINGLY, THE LEASE RENT WORKED OUT TO RS. 895,500/- FOR WHICH THE ASSESSEE HAD SOUGHT REDUCTION IN THE REVISED RETURN, DUE TO THE FACT THAT IN ORIGINAL RETURN FIL ED, THE ASSESSEE HAD DECLARED INCOME ON HOUSE PROPERTY AT R S. 59,70,000/- ON THE ABOVE PROPERTY BY MISTAKE OR OVE RSIGHT. 5.1 ON THE CONSIDERATION OF ABOVE ISSUE, THE AO OPI NED THAT PROCEEDINGS U/S 153A WERE TAKEN UP AS A CONSEQUENCE OF SEARCH U/S 132. THIS SECTION CANNOT BE USED TO REVI SE THE RETURN, WHICH OTHERWISE IS NOT DETECTED AS A RESULT OF SEARCH. ACCORDINGLY, HE REJECTED THE CLAIM OF THE ASSESSEE. AO RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CAS E OF SUN ENGINEERING WORKS P LTD (198 ITR 297) HOLDING THAT IN THE RE ASSESSMENT PROCEEDINGS, IT IS NOT OPEN TO AN ASSESS EE TO SEEK A REVIEW OF COMPUTATION OF THE ESCAPED INCOME. 6. IN RESPECT OF AY 2009-10, THE AO NOTICED THAT I N THE CASH FLOW STATEMENT, THE APPELLANT HAD CREDITED REC EIPTS ON ACCOUNT OF SALE OF GOLD JEWELLERY OF RS. 104,92,655 /-. HE OPINED THAT THE PROFITS ARISING FROM SUCH SALE WERE LIABLE TO CAPITAL GAINS,. ACCORDINGLY, THE PROFITS OF RS. 52, 09,733/- AS I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 7 WORKED OUT BY THE ASSESSEE AS LONG TERM CAPITAL GAI NS, WAS ADDED. 7. FOR THE AY 2010-11 ALSO, THE AO NOTICED THAT RE NTAL INCOME OF RS. 1,15,20.000/- FROM SREE HOLDINGS HAD NOT BEEN OFFERED TO TAX AND AS THE ASSESSEE DID NOT OBJECT, THE SAME WAS ALSO BROUGHT TO TAX, 8. AGGRIEVED WITH THE ABOVE ORDER THE ASSESSEE FIL ED APPEAL BEFORE CIT(A). CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, GAVE RELIEF TO ASSESSE E ON EXTRAPOLATION OF UNDISCLOSED INCOME AND ADDITIONAL INCOME OVER AND ABOVE THE DECLARED INCOME OF THE ASSESSEE AFTER HER OBSERVAT ION AS BELOW: 07.1 IN THE ASSESSMENT ORDER MADE BY THE ASSESSIN G OFFICER IN THE CASE OF THE SOCIETY, THE APPEAL HA S BEEN DECIDED BY ME VIDE ORDER IN ITA NO. 0468 TO 0474/CC-1, HYD/CIT(A)/11-12 DT 23.12.2013. IN THE SAID ORDER, I HAVE DISCUSSED THE ISSUE AT LENGTH AND CONCLUDED THAT THERE HAS BEEN VIOLATION OF THE PRO VISIONS OF SECTION 13(1)(C) OF THE I.T. ACT AND THEREFORE , THE EXEMPTION U/S 11 IS NOT AVAILABLE TO THE SOCIETY A ND THE ENTIRE CAPITATION FEE COLLECTED HAS TO BE TAXED AS NORMAL INCOME IN THE HANDS OF THE SOCIETY. SINCE T HE UNDISCLOSED INCOME OFFERED BY THE APPELLANT HAS B EEN TREATED AS INCOME OF THE SOCIETY, THE ISSUE OF EXTRAPOLATION OF INCOME ON ACCOUNT OF SUPPRESSED/ UNACCOUNTED RECEIPTS FOR THE YEARS WHERE NO INCRIMINATING MATERIAL WAS FOUND SHOULD ALSO BE CONSIDERED IN THE HANDS OF THE SOCIETY ONLY AND N OT IN THE HANDS OF THE APPELLANT. THEREFORE THE ADDI TION OF RS. 78,00,000/- , RS. 1,15,50,000/-, RS.2,87,50 ,000/-, RS.3,90,00,000/-, RS.44,700/- AND RS.4,02,900/- FO R ASST.YEARS 2004-05, 2005- 06, 2007-08, 2008-09, 2009-10 AND 2010-11 IS ORDERED TO BE DELETED. 8.1 ON THE ADDITIONAL GROUNDS RAISED BY ASSESSEE, CIT(A) HAD CONFIRMED THE ADDITION OF LEASE RENT FOR AY 200 8-09 AND AY 2010-11 OF RS.50,74,500/- AND RS. 1,15,20,2000/- I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 8 RESPECTIVELY BUT ON MERIT, SHE DIRECTED AO TO GIVE DEDUCTION U/S 24 AS PER LAW. 8.2 CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE REGARDING THE TAXING OF LONG TERM CAPITAL GAINS AT NORMAL RAT E OF TAX INSTEAD OF AT THE SPECIAL RATE APPLICABLE TO LTCG. ACCORDINGLY AO WAS DIRECTED TO VERIFY AND TAX THE LTCG AS PER A PPLICABLE RATES. 8.3 ON ADDITIONAL GROUND RAISED BY ASSESSEE ON GRAN TING OF REBATE ON AGRICULTURE INCOME WHILE COMPUTING THE TA X LIABILITY, CIT(A) DIRECTED AO TO GRANT THE REBATE ON AGRICULTU RAL INCOME AS PER LAW. 9. AGGRIEVED WITH THE ABOVE ORDER OF CIT(A), REVEN UE RAISED FOLLOWING GROUNDS OF APPEAL FOR AY 2005-06 T O 2010-11, WHICH ARE COMMON IN ALL THE APPEALS: 1. THE ORDER OF THE CIT(A) IS ERRONEOUS IN LAW. 2. THE CIT(A) IS NOT JUSTIFIED IN DELETING THE ADD ITION MADE BY THE ASSESSING OFFICER BASED ON SEIZED MATE RIAL TOWARDS UNACCOUNTED CASH RECEIPTS FOR THE AY UNDER CONSIDERATION AND THAT THE SAID AMOUNTS HAVE IN TU RN DEPOSIT IN PERSONAL BANK ACCOUNTS OF THE MANAGING TRUSTEE OF THE SOCIETY, I.E. THE ASSESSEE. 10. THE ASSESSEE CAME IN APPEAL FOR AYS 2006-07 AND 2008-09 AND HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: FOR AY 2006-07: 1. THE ORDER OF THE CIT(A) IS IN VIOLATION OF THE PROVISIONS OF LAW AND IS BAD IN LAW. 2. THE CIT(A) HAS ERRED IN ASSESSING THE TOTAL INC OME AT RS. 1,78,16,013. 3. THE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 5,17,000 TOWARDS UNACCOUNTED RECEIPTS. FOR AY 2008-09 1. THE ORDER OF THE CIT(A) IS IN VIOLATION OF THE PROVISIONS OF LAW AND IS BAD IN LAW. I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 9 2. THE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 50,74,500 TOWARDS LEASE RENT THOUGH SUCH INCOME WA S NOT EARNED BY THE ASSESSEE. 3. THE CIT(A) HAS ERRED IN ASSESSING THE TOTAL INC OME AT RS. 4,90,36,650. 11. THE ASSESSEE ALSO FILED C.O. IN AYS 2004,05, 20 05-06, 2007-08, 2009-10 AND 2010-11 AND HAS RAISED A COMMO N OBJECTION, WHICH IS AS UNDER: THE CIT(A) HAVING HELD THE INCOME AS BELONGING TO T HE SOCIETY, OUGHT TO HAVE DIRECTED THE ASSESSING OFFI CER TO DELETE THE SAME INCOME ASSESSED IN THE HANDS OF TH E ASSESSEE RESULTING IN DUAL ASSESSMENT OF THE SAME INCOME. 12. THE ASSESSEE FILED C.OS AFTER EXPIRY OF 519 DAY S AND LD. AR FILED PETITION FOR CONDONATION OF DELAY WITH AFF IDAVIT. THE LEARNED DEPARTMENTAL REPRESENTATIVE OBJECTED TO CON DONATION OF SUCH DELAY IN FILING C.OS. AS SUFFICIENT CAUSE W AS EXPLAINED IN THE AFFIDAVIT, WE ARE INCLINED TO CONDONE THE DE LAY AND ADMIT THE C.OS. FOR ADJUDICATION. 13. THE LD. AR SUBMITTED THAT THE ASSESSEE MADE A DECLARATION OF UNDISCLOSED INCOMES AGGREGATING TO R S. 16.5 CRORES FOR AYS 2004-05 TO 2009-10 AND THE RETURNS FILED IN RESPONSE TO THE NOTICES U/S 153A INCLUDE THE UNDISC LOSED INCOMES DISCLOSED U/S 132(4) OF THE ACT, TO BUY PEA CE FROM THE DEPARTMENT. 14. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED UPON THE ORDERS OF ASSESSING OFFICER A S FAR AS THE REVENUE APPEALS ARE CONCERNED AND RELIED UPON THE O RDERS OF CIT(A) AS FAR AS THE ASSESSEES APPEALS ARE CONCERN ED. 15. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD AS WELL AS ORDERS OF REVENUE AUTHORITIES. WE HAVE ALSO CAREFULLY GONE THROUGH TH E DECISIONS I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 10 CITED. SUBSEQUENT TO SURVEY AND BASED ON THE RECOR DS FOUND BY THE REVENUE, NO DOUBT THAT THE EVIDENCE FOUND, E STABLISHES THAT ADDITIONAL FEES WERE COLLECTED BY THE PEOPLE I NVOLVED IN THE MANAGEMENT OF THE EDUCATION IN THE COLLEGE. NOW , THE BIG QUESTION ARISES, WHO ACTUALLY COLLECTED THE ADDITIO NAL FEES. ON PERUSAL OF THE DECISIONS OF THE COORDINATE BENCH OF THIS TRIBUNAL, IT CLEARLY SPELT OUT THAT THE ADDITIONAL FEES COLLECTED BY ASSESSEE WAS WITHOUT CLEAR AUTHORITY OF THE SO CIETY. WITH THE ABOVE FACTUAL FINDINGS, IT IS ESTABLISHED THAT THE ASSESSEE HAS COLLECTED ADDITIONAL FEES AND THE SAME SHOULD B E ASSESSED ONLY IN THE HANDS OF ASSESSEE. MOREOVER, T HE SAME WAS ALSO ACCEPTED BY ASSESSEE AND OFFERED TO TAX VO LUNTARILY TO BUY PEACE FROM THE DEPARTMENT. IT IS IMPORTANT T O MENTION HERE THAT THE DEPARTMENT HAS CHOSEN TO ASSESS TO TA X THE SAME ADDITIONAL FEES COLLECTED IN THE HANDS OF ASSE SSEE. WE ARE INCLINED TO ADJUDICATE THAT THE ADDITIONAL FEES COLLECTED SHOULD BE ASSESSED ONLY IN THE HANDS OF ASSESSEE. 16. WITH REGARD TO QUANTIFICATION OF UNACCOUNTED RE CEIPTS BY THE ASSESSING OFFICER, THE ASSESSING OFFICER HAD QU ANTIFIED RS. 16.62 CRORES INSTEAD OF RS. 16.50 CRORES AS ACC EPTED BY ASSESSEE THE CALCULATION IS BASED ON THE INVESTMENT MADE BY ASSESSEE IN HIS INDIVIDUAL NAME AS WELL AS IN HIS O WN COMPANIES AND THE MATERIAL SEIZED DURING THE COURSE OF SEARCH. SINCE THE ASSESSING OFFICER HAD QUANTIFIED PROPERLY, THIS ALSO CAN BE ASSESSED IN THE HANDS OF ASSESSEE. 17. WITH REGARD TO ESTIMATION OF EXCESS AMOUNT COLL ECTED FOR AY 2004-05 TO AY 2007-08 BASED ON THE CALCULATION O F THE ASSESSING OFFICER THAT THE ASSESSEE WAS INTO PRACTI CE OF COLLECTION OF CAPITATION FEES FOR THE EARLIER YEARS ALSO, RELYING ON THE SEIZED MATERIAL, THE AVERAGE EXCESS FEES REC EIVED WAS WORKED OUT AT RS. 3.5 LAKHS IN THE LATEST YEAR. ASS ESSING I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 11 OFFICER HAD ESTIMATED FOR OTHER EARLIER YEARS BY GI VING DISCOUNT OF RS. 50,000 PER YEAR AS BELOW: AY ESTIMATE NO. OF STUDENTS AMOUNT 1. 2004-05 1,00,000 78 78,00,000 2. 2005-06 1,50,000 77 115,50,000 3. 2006-07 2,00,000 - - 4. 2007-08 250,000 45 287,50,000 5. 2008-09 3,00,000 130 390,00,000 FROM THE ABOVE CALCULATION, IT CLEARLY ESTABLISHES THAT ASSESSING OFFICER HAD PRESUMED THAT THE ASSESSEE HA D COLLECTED THE ABOVE SAID AMOUNT BUT COULD NOT PROVI DE ANY COGENT MATERIAL TO SUBSTANTIATE THE ABOVE PRESUMPTI ON. HE RELIED ON THE TWO JUDGMENTS VIZ., RAJWIK & CO VS. ACIT AND M.S BAWARCHI RESTAURANT (SUPRA). IN THE CASE OF RAJ WIK, IT WAS ESTABLISHED THAT THE ASSESSEE HAD SUPPRESSED INCOME BASED AS PART PERIOD EVIDENCES AND SWORN DEPOSITION OF PA RTNER OF THE FIRM, WHICH WAS UPHELD. WHEREAS IN THE GIVEN CA SE, NO DOUBT, IT WAS ESTABLISHED THAT THE ASSESSEE COLLECT ED EXCESS FEES BUT THE EXCESS COLLECTION WAS NOT FOR PART PER IOD NOR HE HAD ACCEPTED IN THE SWORN DEPOSITION ANYTHING MORE THAN RS. 16.50 CRORES. ON THE OTHER HAND, THE DECISION OF M/ S BAWARCHI CAN BE APPLIED WHEN THE SITUATION ARISES FOR ESTIMA TION. NOT IN THE PRESENT CASE. 18. WE ARE OF THE VIEW THAT THE ASSESSING OFFICER C ANNOT INFER THE ESTIMATION BASED ON THE FINDINGS IN THE S EARCH PROCEEDINGS WITHOUT ANY COGENT MATERIAL AVAILABLE F OR THE OTHER AYS OR WITHOUT ANY FINDINGS FROM THE DIRECT M ATERIAL DURING SEARCH PROCEEDINGS OR DEPOSITION OF ANY OFFI CE BEARERS OF THE SOCIETY THAT IT HAS COLLECTED ADDITIONAL FEE S IN THE EARLIER YEARS. I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 12 19. IN ITA NO. 119/HYD/14, THE ASSESSEE HAS RAISED THREE GROUNDS IN HIS APPEAL, FIRST GROUND IS GENERAL, NEE D NO ADJUDICATION AND GROUND NOS. 2 & 3 ARE CONCERNED, T HE ASSESSEE HAD ACCEPTED THE UNDISCLOSED INCOME AND WE HAVE ADJUDICATED THEM AS THE INCOME OF THE ASSESSEE IN P ARAS 15 & 16 ABOVE. HENCE, THESE GROUNDS ARE DISMISSED. 20. IN ITA NO. 120/HYD/14 FOR AY 2008-09, THE ASSES SEE HAS RAISED FIVE GROUNDS IN HIS APPEAL. FIRST GROUND IS GENERAL AND HENCE, NO ADJUDICATION IS REQUIRED. IN GROUND NO. 2, THE ASSESSEE HAD REVISED THE LEASE RENT INCOME WHILE SU BMITTING THE REVISED RETURN OF INCOME. ASSESSING OFFICER HAD DECLINED TO ACCEPT THE REDUCTION IN INCOME AS THE ASSESSEE C ANNOT USE THE PROCEEDINGS U/S 153A TO REVISE/REDUCE HIS RETUR NED INCOME. BY RELYING ON THE HONBLE SUPREME COURT JUD GMENT IN THE CASE OF SUN ENGG. WORKS P. LTD. (SUPRA), THE SA ME WAS UPHELD BY THE CIT(A). ON CAREFUL EXAMINATION OF FAC TS AND THE APPLICABILITY OF THE ABOVE JUDGMENT, WE ARE ALSO OF THE VIEW THAT THE ASSESSEE CANNOT MAKE A FRESH CLAIM IN THE PROCEEDINGS UNDER SECTION 153A. HENCE, THIS GROUND OF THE ASSESSEE IS DISMISSED. WITH REGARD TO 3 RD GROUND, THE CIT(A) HAD ALREADY DELETED THE ADDITION IN PARA 7.1 OF HIS ORDER. HENCE, THIS GROUND IS ALSO DISMISSED. 21. IN THE RESULT, APPEALS OF ASSESSEE FOR AY 2006- 07 AND 2008-09, APPEALS OF REVENUE FOR AYS 2004-05 TO 20 10-11 & C.OS. OF THE ASSESSEE FOR AY 2004-05, 2005-06, 2007 -08, 2009-10 AND 2010-11, ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH, 2016 SD/- (P. MADHAVI DEVI) JUDICIAL MEMBER SD/- (S. RIFAUR RAHMAN) ACCOUNTANT MEMBER I.T.A. NO. 119/HYD/2014 AND OTHERS K.T. MAHI 13 HYDERABAD, DATED 11 TH MARCH, 2016 KV 1. SHRI K.T. MAHI, C/O GANDHI & GANDHI, CAS, 1002, PAIGAH PLAZA, BASHEERBAGH, HYDERABAD 500 0P63. 2. ACIT, CENTRAL CIRCLE 1, 7 TH FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD 500 001. 3. CIT -I, HYDERABAD 4 CIT(CENTRAL) HYDERABAD 5 THE DR, ITAT, HYDERABAD