Maheswaram Venkateswarlu , Hyderabad V. Income Tax Officer, Ward-13(3), Hyderabad

ITA 1101/Hyd/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6366 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2021
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB-A
• Assessment Year: 2012-2013
• Appeal Filed On: 03-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income
• Section: 143(3); 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH-A, HYDERABAD (Through Virtual Hearing) BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER ITA NO.1101/Hyd/2019 A.Y:2012-13 Maheswaram Venkateswarlu, Hyderabad. PAN AMZPM 0715 B Vs. The Income Tax Officer, Ward-13(3), Hyderabad. (Appellant) (Respondent) Assessee by: Sri Pavan Kumar Revenue by: Sri B. Balakrishna, DR Date of hearing: 11/10/2021 Date of pronouncement: 15/12/2021 ORDER PER A. MOHAN ALANKAMONY, AM This appeal is filed by the assessee against the order of the ld. CIT (A)-4, Hyderabad in appeal No. 4/10208/17-18/W-13(3)/Hyd/CIT(A)- 4/Hyd/18-19, dated 18/04/2019 passed u/s. 143(3) r.w.s 153C and U/s. 250(6) of the Act for the AY 2012-13. 2. The assessee has raised four grounds in his appeal, and they are extracted herein below for reference: “1. The Ld. CIT (A) is erroneous, illegal and held contrary to the facts of the instant case. 2 2. The Ld CIT (A) is erred in confirming the action of the Assessing Officer in treating the amount of Rs. 10,00,000/- as income of the appellant without considering the submissions. 3. The Ld CIT (A) ought to have considered the fact that the appellant submitted copies of evidences. 4. Any other ground / grounds that may be urged at the time of hearing.” 3. The brief facts of the case are that the assessee is an individual deriving income from salary filed his return of income on 03/04/2013 for the AY 2012-13 after claiming deduction under Chapter VIA of the IT Act, 1961 amounting to Rs. 1,50,720/-. During the scrutiny assessment proceedings, the Ld. AO observed that the assessee had paid Rs. 10 lakhs in cash as donation / capitation fees over and above the regular fees prescribed by the Government for obtaining his daughter’s admission in MBBS course in CAIMS based on the materials found and seized from the premises of M/s. Arihant Educational Society and belonging to it. Further, on perusal of the details and particulars submitted by the assessee, the ld. AO was of the view that for the relevant AY, the assessee did not have source of income for the amount of Rs. 10,00,000/- paid on account of capitation fee/donation towards his daughter’s admission in MBBS Course and therefore added the same to the total income of the assessee. Accordingly, the Ld. AO completed the assessment U/s 143(3) r.w.s 153C of the Act and determined the total income of the assessee at Rs. 16,00,490/- vide order on 19/12/2017. Aggrieved by the order of the Ld. AO, the assessee filed an appeal before the Ld. CIT (A). 3 4. On appeal, the Ld. CIT (A) sustained the addition made by the Ld. AO with respect to the addition made for Rs. 10,00,000/- and remitted the other issue with respect to salary income back to the file of the Ld. AO for verification and thus partly allowed the assessee’s appeal. Aggrieved by the order of the Ld. CIT (A), the assessee is in appeal before the Tribunal. 5. At the outset, the Ld. AR submitted before us that the Ld. CIT (A) did not properly appreciate the submissions of the assessee while sustaining the addition made by the Ld.AO and also erred in remitting back the other issue in the appeal of the assessee to the file of Ld. AO for verification since the Ld.CIT(A) did not have power to do so as per the provisions of the Act. Ld. DR on the other hand vehemently opposed to the submissions of the Ld. AR and strongly relied on the orders of the Ld. Revenue Authorities. 6.1 We have heard the rival submissions and carefully perused the materials on record. At the outset, on perusal of the order of the Ld. CIT (A), we find that the Ld. CIT (A) has remitted the issue with respect to salary income back to the file of the Ld. AO for verification for which the Ld. CIT (A) has no powers under the provisions of the Act. The Ld. CIT (A) ought to have obtained a remand report from the Ld. AO and thereafter passed appropriate order in accordance with law and merit 4 which he has failed to do so. Therefore, considering the facts and circumstances of the case and to ease the situation, invoking our powers under the provisions of the Act, We hereby remit back the issue with respect to salary income to the file of the Ld. AO for fresh consideration and to pass appropriate order in accordance with law and merit after considering the findings of the Ld. CIT (A). 6.2 With respect to the addition made for Rs. 10 lakhs it is apparent that the addition is made based on the seized materials belonging to M/s. Arihant Educational Society which was found in the premises of the Society and not in the possession of the assessee. The Seized material in page 15 of A/CAIMS/04 is a record created and retained by M/s. Arihant Educational Society. However, there is no cojent evidence available on record to establish the fact that the assessee had paid the amount of Rs. 10 lakhs to M/s. Arihant Educational Society for obtaining admission for his daughter. In this situation, we are of the view that addition cannot be made in the hands of the assessee based on some records created and possessed by a third party which has no evidential value to prove the fact that the assessee had made such payment. Therefore, we set-aside the orders of the Ld. Revenue Authorities on this issue and hereby direct the Ld. AO to delete the addition made for Rs. 10 lakhs in hands of the assessee on account of capitation fees/donation paid. We also make it clear that just because 5 we have deleted the addition in the hands of the assessee with respect to the capitation fees/donation alleged to have been paid by the assessee, it does not absolve M/s. Arihant Educational Society from establishing the fact that it had not received the donation from any entity whatsoever. It is ordered accordingly. 7. In the result, appeal of the assessee is partly allowed for statistical purposes as indicated herein above. Order pronounced in the open court on the 15 th December, 2021. Sd/- Sd/- (CHANDRA MOHAN GARG) (A. MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad dated 15 th December, 2021. OKK Copy to: 1 Sri Maheswaram Venkateswarlu, H.No. 2-4-118/75, Street No.7, Swaroop Nagar, Uppal, Hyderabad – 500 039. 2 The Income Tax Officer, Ward-13(3), Hyderabad. 3 The Commissioner of Income Tax (Appeals)-4, Hyderabad. 4 The Principal Commissioner of Income Tax-4, Hyderabad. 5 The CIT-DR, ITAT, Hyderabad. 6 Guard File By Order