Late Jhamman Singh, Ghaziabad V. ITO, New Delhi

ITA 1310/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4502 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 06-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO. 131 0/DEL./2017 : ASSTT. YEAR : 2007-08 JHAMMAN SINGH, L/H MRS. MAYAWATI/MOHINDER SINGH, HOUSE NO. 1233, SECTOR-9, VASUNDHARA, GHAZIABAD PAN-ACGPW9138H VS. ITO WARD-55(4), NEW DELHI [APPELLANT] [RESPONDENT] APPELLANT BY : SH.AJAY KUMAR SHARMA, ADV. RESPONDENT BY : SH. T. VASANTHAN, SR. D.R. DATE OF HEARING: 21 08 2017 DATE OF PRONOUNCEMENT: 28 09 2017 O R D E R PER DIVA SINGH, JUDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DAT ED 1.12.2016 OF CIT(A)-19 , NEW DELHI PERTAINING TO 20 07-08 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS : THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE ADDITION OF RS. 20,00,000/- IN THE HANDS OF THE HUSBAND OF THE APPELLANT IS AGAINST THE LAW OF THE LAND MERELY BECAUSE OF THE ADMISSION DURING THE SEARCH AND SEIZURE. THAT, THE HUSBAND OF THE APPELLANT IS NO MORE IN TH IS WORLD. ANY TAXATION RELATED TO HIM SHOULD BE THOROUGHLY EXAMINED BEFORE FINALIZING THE ASSESS MENT. 2. LD. AR AT THE TIME OF HEARING HAD MOVED AN ADJ OURNMENT REQUEST REQUESTING FOR TIME ON THE GROUNDS THAT THE LEGAL HEIRS WERE OUT OF STATION AND RELEVA NT DOCUMENTS ARE REQUIRED TO BE FILED. 3. HOWEVER, AFTER HEARING THE LD. SR. DR, WHERE I T IS EVIDENT THAT FOR WANT OF RELEVANT DOCUMENTS/FA CTS THE APPEAL MAY BE REQUIRED TO BE RESTORED ACCORDING LY IT WAS DEEMED APPROPRIATE TO PROCEED WITH THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD . 4. THE LD. AR AND SR. DR WERE BOTH HEARD. THE RECORD SHOWS THAT IN THE FACTS OF THE PRESENT CASE , THE ADDITIONS HAVE BEEN MADE ON THE BASIS OF THE ALLEG ATION THAT THE ASSESSEE HAD PAID DONATION/ CAPITATI ON FEE OVER AND ABOVE THE REGULAR FEE FOR ADMISSION OF HIS SON MR. MOHINDER SINGH IN DCH COURSE. THE ASSESSEE THEN ALIVE WAS STATED TO BE A PENSIONER WH O HAD EXPIRED ON 9.8.2010. THE LEGAL HEIRS CLAIMED THAT THOUGH THE ASSESSEE HAD ADEQUATE SOURCES OF MO NEY, HOWEVER, DENIED PAYMENT OF DONATION FEE ADDING THAT THEY WERE NOT AWARE OF THE FULL FACTS. THE REVENUES CASE RESTS ON THE FACT THAT DR. P. MAHALINGAM, CHAIRMAN OF MAHARAJI EDUCATIONAL TRUST AND SANTOSH HOSPITAL PVT. LTD. HAS ACCEPTED THAT DONATION/CAPITATION FEE HAS BEEN TAKEN BY HIM HE IS ALSO STATED TO HAVE OFFERED FOR TAX THE UNACCOUNTE D MONEY, STATED TO HAVE BEEN RECEIVED BY WAY OF DONAT IONS. 4.1 HOWEVER, WHETHER DONATION/CAPITATION FEE W AS ACCEPTED IN SOME ADMISSION CASES OR FOR ALL ADMISSIONS IS NOT KNOWN. ACCORDINGLY, IN THE PECUL IAR FACTS AND CIRCUMSTANCES CONSIDERING THE OVERALL FACTUAL MATRIX, IT IS DEEMED APPROPRIATE TO SET ASI DE THE IMPUGNED ORDER BACK TO THE FILE OF THE ASSES SING OFFICER TO CONSIDER WHETHER AS PER THE STATEMENT OF DR. P. MAHALINGAM HAS IT BEEN ACCEPTED THAT DONATION/ CAPITATION FEE WAS PAID BY THE ASSESSEE S PECIFICALLY OR HAS IT BEEN STATED THAT FOR SOME STUDENTS DONATION/CAPITATION FEE WAS RECEIVED. AS C OMPLETE AND RELEVANT FACTS ARE NOT AVAILABLE ON RECORD ACCORDINGLY, IN THE INTERESTS OF JUSTICE, TH E IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF T HE AO TO CONSIDER AND DISCUSS THE ISSUE WITH FULL FACTS A ND THEREAFTER PASS A SPEAKING ORDER IN ACCORDANCE W ITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUN ITY OF BEING HEARD. 5. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 28 /09 /2017) SD/ - (DIVA SINGH) JUDICIAL MEMBER DATED: 28 .09.2017 *BINITA(DELHI)/POONAM(CHD)* COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR