Maha Prabhu Ram Mulakh Hi Tech Educational Society, Chandigarh V. DCIT, Chandigarh

ITA 163/CHANDI/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81051 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-11-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 13-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMARVEER SINGH
• Keywords: Document seized; Additional evidence; Assessment record; Documents seized
• Section: 142(1); 133A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, B, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R. SOOD, ACCOUNTANT MEMBER ITAS NO. 160,161,162 & 163/CHD/2014 A.Y: 2006-07, 2007-08,2008-09 & 2009-10 MAHA PRABHU RAM MULAKH V D.C.I.T. C.C.-I HI TECH EDUCATIONAL SOCIETY CHANDIGARH YOG DIVYA MANDIR SECTOR 7 CHANDIGARH AABTM 8670 M ITAS NO. 202 & 203/CHD/2014 A.Y: 2006-07 & 2009-10 D.C.I.T. C.C.I V MAHA PRABHU RAM MULAKH CHANDIGARH HI TECH EDUCATIONAL SOCIETY YOG DIVYA MANDIR SECTOR 7 CHANDIGARH (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI SUDHIR SEHGAL DEPARTMENT BY: SHRI AMARVEER SINGH DATE OF HEARING 25.11.2014 DATE OF PRONOUNCEMENT 27.11 .2014 O R D E R PER BENCH THESE APPEALS ARE DIRECTED AGAINST THE ORDERS OF LD CIT(A), GURGAON DATED 31.12.2013. 2. IN THIS GROUP OF CASES, VARIOUS ISSUES HAVE BEEN RAISED BY THE ASSESSEE AND REVENUE. HOWEVER, AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE STRESSED THAT TWO PRELIMINARY ISSUES I.E. LACK OF OPPORTUNITY AT THE LEVEL OF ASSESSING OFFICER AND D URING REMAND PROCEEDINGS AS WELL AS THE ISSUE REGARDING NON-ADMI SSION OF WHOLE ADDITIONAL EVIDENCE NEEDS TO BE ADDRESSED BEFORE AD JUDICATING OTHER ISSUES. 2 3 THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT I N THIS GROUP ALSO BASICALLY PROPER OPPORTUNITY HAS NOT BEEN GRAN TED. FURTHER ADDITIONAL EVIDENCE HAS NOT BEEN PROPERLY ADMITTED BY THE LD. CIT(A). IN FACT THE ISSUES RAISED IN THESE APPEALS ARE ALMOST IDENTICAL WITH THE ISSUES IN THE CASE OF SHRI SWAMI DEVI DAYAL V DCIT IN ITAS NO. 1051 TO 1057/CHD/2013 AND OTHERS. 4 HE FURTHER SUBMITTED THAT AS DIRECTED BY THE TRIB UNAL IN CASE OF SHRI SWAMI DEVI DAYAL V DCIT (SUPRA) IN THESE CASES ALSO FURTHER ADDITIONAL EVIDENCE HAS BEEN FILED. HE ADMITTED TH AT THE ASSESSEE WOULD NOT INSIST ON FURNISHING FURTHER EVIDENCE BEF ORE THE ASSESSING OFFICER IF THE ORDER IN CASE OF SHRI SWAMI DEVI DAY AL V DCIT (SUPRA) IS FOLLOWED IN THESE CASES. 5 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE ST RONGLY SUPPORTED THE ORDER OF THE CIT(A) IN ITAS NO. 162 & 163/CHD/2014. IN CASE OF ITAS NO. 202 & 203/CHD/2014 HE SUPPORTE D THE ORDER OF THE ASSESSING OFFICER. 6 WE HAVE CONSIDERED THE RIVAL SUBMISSINS CAREFULLY . THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE, DETAILS OF WHICH ARE AS UNDER: ASSESSMENT YEAR 2006-07 ONE PAPER BOOK CONSISTING OF 77 PAGES 2007-08 ONE PAPER BOOK CONSISTING OF 232 PAGES 2008-09 THREE PAPER BOOKS CONSISTING OF 1054 PAGE S 2009-10 FOUR PAPER BOOKS CONSISTING OF 1280 PAGES THE FACTS AND ISSUES RAISED IN THIS GROUP OF APPEAL S ARE IDENTICAL TO THE ISSUES ADJUDICATED BY US IN CASE O F SHRI SWAMI DEVI DAYAL V DCIT (SUPRA). THESE ISSUES WERE ADJUD ICATED BY US VIDE PARA NO. 15, 22 TO 31 WHICH ARE AS UNDER: 15 ON THE BASIS OF ABOVE SUBMISSIONS AND ADDITION AL EVIDENCE RECEIVED DURING HEARING, THE REVENUE WAS D IRECTED TO SUBMIT FULL DETAILS AND REPLIES ON THE FOLLOWING IS SUES- 3 (I) DETAIL OF PHOTOCOPIES GIVEN TO THE ASSESSEE OF THE SEIZED MATERIAL ALONG WITH RECEIPTS OF THE ASSESSEE AND CHART SHOW ING THE DATE OF REQUEST AND SUPPLY OF SUCH INFORMATION. (II) SIMILAR DETAIL AS ABOVE REQUESTED BY THE ASSES SEE FROM INVESTIGATION WING (III) WHETHER THERE IS ANY BAR IN THE LAW FOR CONST ITUTION OF COMMITTEE FOR REMAND VERIFICATION AND WHY FIRST REMAND REPORT WAS WITHDRAWN? (IV) WHETHER ANY OPPORTUNITY WAS GRANTED TO THE ASS ESSEE DURING SECOND REMAND PROCEEDINGS AND PARTICULAR REPLY TO T HE AFFIDAVIT FILED BY THE ASSESSEE. WHY THE NOTING SHEETS ARE NOT IN THE HAND WRITING OF THE ASSESSING OFFICER AND COMPUTERIZED ORDER SHEETS HAV E BEEN PREPARED WHICH IS AGAINST THE NORMAL PRACTICE? (V) STATUS OF THE REGISTRATION OF 12AA AND WHETHER THE SAME IS GENUINE (VI) WHEN THE FIRST REMAND REPORT WAS NOT ACCEPTED BY THE ADDL CIT WHETHER ANY ACTION WAS TAKEN AGAINST THE EMPLOYEES WHO PREPARED SUCH REPORT? (VII) COPIES OF THE FOLDERS OF BOTH THE REMAND REPO RTS WERE DIRECTED TO BE PRODUCED. IT SEEMS THAT THE CIT,LD. D.R FOR THE REVENUE HAS R AISED ABOVE QUERIES AS WELL AS OTHER CONCERNS WITH OFFICE RS AND COMMISSIONER OF THE CENTRAL CIRCLE FROM WHOM SHE H AS RECEIVED VERY LITTLE REPLY AND WHATEVER HAS BEEN RE CEIVED HAS BEEN FURNISHED BEFORE US AND OR ENCLOSED WITH HER W RITTEN SUBMISSIONS. NOW LET US CONSIDER THE SUBMISSIONS OF THE LD. CIT D.R FOR THE REVENUE IN THIS BACKGROUND. 22 IN THIS CASE SEARCH WAS CONDUCED ON 15.7.2008 AN D VARIOUS DOCUMENTS WERE FOUND AND SEIZED. EVEN THE HARD DISK OF ACCOUNTS WERE SEIZED. THE ASSESSEE MADE FIRST R EQUEST ON 13.8.2008 FOR OBTAINING COPIES OF VARIOUS DOCUMENTS . THE CONTENTS OF LETTER DATED 13.8.2008 WHICH IS AVAILAB LE AT PAGE 1 OF THE COMBINED PAPER BOOK ARE AS UNDER: THE ADDL DIRECTOR OF INVESTIGATION DATED: 13.8.2 008 INCOME TAX PANCHKULA SUB: RELEASE OF DOCUMENTS IMPOUNDED U/S 133A OF THE INCOME TAX ACT DURING SEARCH OPERATION ON OUR PREMISES ON 15.7.200 8 DEAR SIR, IT IS RESPECTFULLY SUBMITTED THAT DURING THE COURSE OF SEARCH OPERATIONS CONDUCTED ON OUR PREMISES ON 15.7.2008, VARIOUS DOC UMENTS, FILES, BOOKS OF ACCOUNT, HARD DISK AND OTHER RELATED PAPER S WERE IMPOUNDED BY THE SEARCH TEAM FROM DIFFERENT PREMISES. WE HAVE TO FINALIZE OUR ACCOUNTS AND FILE OUR INCOME TAX RETURNS BY 30 TH SEPT 2008 AND ARE TO MAINTAIN FURTHER DAY TO DAY ACCOUNTS, WHICH IS NOT POSSIBLE WITHOUT THE RELEVANT RECORD. MOREOVER WE A RE TO GIVE STATEMEN T RELATING TO THE SEIZED DOCUMENTS WHICH CAN BE GIVEN ONLY AFTER SEEI NG THE DOCUMENTS. WE THEREFORE REQUEST YOU TO KINDLY PROVIDE US THE C OPIES OF BOOKS OF ACCOUNT AND OTHER RELATED RECORDS SEIZED DURING THE SEARCH OPERATION AT THE EARLIEST. KINDLY DO THE NEEDFUL. 4 THANKING YOU, YOURS FAITHFULLY, SD/- (ROSHAN LAL JINDAL) THEREAFTER ANOTHER REQUEST WAS MADE ON 15.4.2009 FO R SUPPLY OF PHOTOCOPIES OF VARIOUS DOCUMENTS. NEXT REQUEST WAS MADE ON 13.8.2009, 15.3.2010, 16.8.2010 AND 26.8.2010. WE HAVE SPECIFICALLY ASKED THE REVENUE TO SHOW WHICH DOCUME NTS WERE SUPPLIED AND WHICH DOCUMENTS WERE STILL NOT SUPPLIE D ON THE FIRST DATE. IT SEEMS THAT THE LD. CIT-D.R HAD SPEC IFICALLY WRITTEN LETTERS TO THE CONCERNED OFFICERS FOR OBTAI NING THIS INFORMATION AND IN THIS REGARD WE WOULD LIKE TO REP RODUCE FIRST LETTER WRITTEN BY DCIT, ITAT ON 13.5.2014 WHICH IS AS UNDER: NO. CIT/ITAT/2014-15/80 DATED: 13.05.2014 TO, THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-I, CHANDIGARH SIR, SUB: ITA NOS. 1054 TO 1057/CHD/2013 IN THE CASE OF SWAMI DEVI DAYAL HIGHTECH EDUCATION ACADEMY A.YS. 2003-04 TO 2009- 10- REGARDING IN REFERENCE TO THE ABOVE CASE FIXED FOR HEARING BE FORE THE HONBLE ITAT, CHANDIGARH ON 13.05.2014 THE ASSESSEE HAS TAKEN UP PLEA THAT DURING THE ASSESSMENT PROCEEDINGS, DESPITE SEVERAL WRITTEN REQUESTS, HE WAS NOT PROVIDED THE PHOTOCOPIES OF SEIZED DOCUMENTS IN TIME SO AS TO EFFECTIVELY REPRESENT HIS CASE BEFORE THE ASSESSING OFFICER AND OTHER SUPERIOR AUTHORITIES. IN THIS REGARD, THE HONBLE B ENCH HAS DESIRED A DATE WISE TABULATION CHART DEPICTING AS TO ON WHAT DATE SUCH REQUESTS WERE MADE AND CONSEQUENTLY WHICH OF DOCUMENTS WERE SUPPL IED TO THE ASSESSEE (ALONGWITH DATE WISE PROOF OF SUCH RECEIPT S). SIMILAR DATA, IF ANY, PERTAINING TO THE DOCUMENTS R EQUESTED AND RECEIVED BY THE ASSESSEE FROM INVESTIGATION WING IS ALSO TO BE INCORPORATED IN THE SAID TABLE. YOU ARE FURTHER REQUESTED TO SEND THE A SSESSMENT RECORDS IN ABOVE CASE FOR A.Y. 2003-04 TO A.Y. 2009-10. THE NEXT DATE OF HEARING IN THE SAID APPEAL IS 16 TH & 17 TH JUNE, 2014. YOU ARE REQUESTED TO SENT YOUR COMMENTS / REPLY ON OR BEFORE 31.05.2014. PLEASE TREAT IT AS MOST URGENT. YOURS FAITHFULLY, SD/- (AKHILESH GUPTA) DY. COMMISSIONER OF INCOME TAX, ITAT, CHANDIGARH TO THIS LETTER TWO REPLIES HAVE BEEN MADE BY THE DC IT WHICH ARE AS UNDER: GOVERNMENT OF INDIA INCOME TAX DEPARTMENT 5 OFFICE OF THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-I, ROOM NO. 2, AAYAKAR BHAWAN, SECTOR 17-E, CHANDIGARH F.NO. DCIT/CC-I/CHD/2014-15/1122 DATED: 01/08/2014 TO THE DY. COMMISSIONER OF INCOME TAX (ITAT), SECTOR-17 E, CHANDIGARH SIR, SUB: ITA NOS. 1054 TO 1057/CHD./2013 IN THE CASE O F M/S. SWAMI DEVI DAYAL HI-TECH. EDUCATION ACADEMY ASST. YEARS 2003-04 TO 2009-10- REGARDING- KINDLY REFER TO YOUR OFFICE LETTER F.NO. CIT/ITAT/2 014-15/80 DATED 13.05.2014 ON THE SUBJECT CITED ABOVE. IN THIS REGARD, UPON PERUSAL OF ASSESSMENT RECORD, IT IS FOUND THAT THE ASSESSEE HAS ACKNOWLEDGED RECEIPT OF PHOTOCOPIE S OF DOCUMENTS DURING THE MONTH OF JUNE AND JULY, 2009 VIDE ITS LE TTER DATED 31.08.2009 RECEIVED IN THIS OFFICE ON 01.09.2009. T HE ASSESSEE FURTHER SUBMITTED THAT IT HAD NOT RECEIVED COMPLETE PHOTOCOPIES (COPY ENCLOSED). BUT NO FURTHER CORRESPONDENCE IS O N THE RECORD WITH RESPECT TO PROVIDING PHOTOCOPIES OF SEIZED DOC UMENTS. BUT UPON PERUSAL OF THE ASSESSMENT ORDERS, IT IS FO UND THAT A SCANNED LETTER WRITTEN BY SH. ROSHAN LAL JINDAL ADD RESSED TO THE ADIT(INV.)-III, CHANDIGARH IS PART OF ASSESSMENT OR DER ITSELF, IN WHICH HE HAS ACKNOWLEDGED THE RECEIPT OF SEIZED MAT ERIAL ON 13.09.2008 (COPY ENCLOSED). AS DESIRED, THE ASSESSMENT RECORDS IN THIS CASE ARE ENCLOSED HEREWITH AS GIVEN BELOW: SR. NO. NAME OF THE ASSESSEE A.Y. PAGES CONTAINED 1. M/S. SWAMI DEVIL DAYAL HI-TECH. EDUCATION ACADEMY, VILL. GOLPURA, THE, BARWALA, DISTT. PANCHKULA 2003-04 N-6 C-395 2. --DO-- 2004-05 N-6 C-484 3 --DO-- 2005-06 N-6 C-607 4 --DO-- 2006-07 N-7 C-409 5 --DO-- 2008-09 N-6 C-535 6 --DO-- 2009-10 N-5 C-433 FURTHER, THE INFORMATION PERTAINING TO CORRESPONDEN CE BETWEEN THE ASSESSEE AND THE INVESTIGATION WING, IF ANY, MAY BE SOUGHT DIRECTLY FROM THE INVESTIGATION WING. YOURS FAITHFULLY, SD/- (DR. RAMAN GARG) DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE- I , CHANDIGARH ENCL: (AS ABOVE ASSTT. RECORD IN SIX VOL.) 6 WE HAVE ALSO PERUSED THE ORDER SHEETS DURING ASSESS MENT PROCEEDINGS WHICH READS AS UNDER: 7 8 9 10 PERUSAL OF ABOVE SUBMISSIONS AND LETLTER OF DCIT CE NTRAL CIRCLE AND ORDER SHEETS DURING ASSESSMENT PROCEEDIN GS SHOW THAT ORDER SHEET HAS BEEN DRAFTED ON COMPUTER WHICH ITSELF IS VERY UNUSUAL. NORMALLY ORDER SHEETS ARE WRITTEN IN THE PERSONAL HANDWRITING OF THE ASSESSING OFFICER, WE W ONDER WHETHER ORDER SHEET HAS BEEN WRITTEN ON DATES MENTI ONED IN THE ORDER SHEET OR THEY HAVE BEEN GENERATED ON A PA RTICULAR DATE. FURTHER PERUSAL OF THE ORDER SHEET WOULD SHO W THAT THERE IS NO REFERENCE TO RECEIPT OF LETTER FOR SUPPLY OF DOCUMENTS AND NO DETAILS ARE INCORPORATED WHETHER THE DOCUMENTS W ERE REALLY SUPPLIED OR NOT? THEREFORE ONLY ASSUMPTION POSSIBL E IS THAT STATEMENT OF THE ASSESSEE ARE CORRECT AND COMPLETE DOCUMENTS HAVE NOT BEEN SUPPLIED TILL THE END OF AU GUST, 2010. THEREAFTER A SHOW CAUSE NOTICE FOR CONDUCTIN G OF SPECIAL AUDIT WAS ISSUED ON 28.9.2010 WHICH THE ASS ESSEE OBJECTED VIDE LETTER DATED 11.10.2010. THE ASSESSI NG OFFICER REJECTED THE SAME AND APPROVAL OF THE COMMISSIONER FOR CONDUCTING OF SPECIAL AUDIT WAS SOUGHT ON 14.10.201 0. APPROVAL WAS GIVEN BY THE COMMISSIONER ON 11.11.201 0. AUDIT WAS COMPLETED ON 13.5.2011 AND AUDIT REPORT WAS SUBMITTED TO THE ASSESSING OFFICER ON 13.5.2011. R ETURN OF INCOME HAS BEEN FILED ON 1.4.2011. THEREFORE ONCE THE DOCUMENTS WERE NOT PROVIDED TILL THE END OF AUGUST 2010 AND A PROPOSAL FOR SPECIAL AUDIT WAS INITIATED ONLY TOWAR DS END OF 2010 THE ASSESSEE CAN NOT FILE RETURN UNLESS AND UN TIL COMPLETE DOCUMENTS ARE AVAILABLE. FURTHER WHEN SPE CIAL AUDIT STARTED OBVIOUSLY THE ASSESSEE WOULD LIKE TO WAIT FOR FINALIZATION OF SUCH AUDIT ALSO. 23 PERUSAL OF ABOVE ORDER SHEETS ALSO SHOW THAT FOR THE FIRST TIME NOTICE U/S 142(1) HAS BEEN ISSUED ON 28.9.2010 ALONG WITH THE DETAILED QUESTIONNAIRE (A COPY OF QUESTION NAIRE WAS NEVER BROUGHT TO OUR KNOWLEDGE). IT WAS STATED BEF ORE US THAT ONLY ONE SHOW CAUSE NOTICE WAS ISSUED ON 16.6.2011. AFTER FILING OF RETURN A NOTICE U/S 143(2) HAS BEEN ISSUE D ON 20.4.2011 BUT IT BECOMES CLEAR THAT NO QUESTIONNAIR E WAS ISSUED ON THIS DATE. THEREAFTER ANOTHER NOTICE U/S 142(1) ALONG WITH QUESTIONNAIRE WAS ISSUED FIXING THE HEAR ING FOR 4.5.2011 ON 21.4.2011. THEREFORE FOR PRACTICAL PUR POSES IT CAN BE SAID THAT IF EFFECTIVE HEARING STARTED ON 4.5.20 11 AND THE ASSESSMENT HAS BEEN COMPLETED ON 12.7.2011. THIS C LEARLY SHOWS THAT LESS THAN 70 DAYS WERE AVAILABLE WITH TH E ASSESSING OFFICER FOR COMPLETION OF 165 ASSESSMENTS . PERUSAL 11 OF THE ORDER SHEETS FURTHER SHOWS THAT NOWHERE IT I S DISCUSSED THAT WHAT WERE THE REPLIES ALREADY FILED BY THE AS SESSEE AND WHAT ARE THE POINTS ON WHICH BALANCE OF INFORMATIO N WAS STILL REQUIRED TO BE FILED BY THE ASSESSEE WHICH IS THE N ORMAL PRACTICE. ALL THIS CLEARLY SHOW THAT THE ASSESSEE W AS NOT PROVIDED ADEQUATE OPPORTUNITY AND WAS NOT CONFRONTE D WITH PARTICULAR QUERY. 24 IN THE ABOVE SITUATION THE ASSESSEE HAD NO ALTER NATIVE BUT TO FILE ADDITIONAL EVIDENCE BEFORE THE LD. CIT( A). THE LD. CIT(A) BASICALLY OBSERVED THAT IT HAS NOT BEEN PROV ED THAT THE ASSESSEE DID NOT HAVE SUFFICIENT OPPORTUNITY TO FIL E ALL THESE EVIDENCES BEFORE THE ASSESSING OFFICER, THEREFORE A DDITIONAL EVIDENCE WAS NOT REQUIRED TO BE ADMITTED. HOWEVER, SOME OF THE ADDITIONAL EVIDENCES WERE ADMITTED. SHE ALSO O BSERVED THAT ASSESSMENT HAS BEEN FINALIZED LARGELY ON THE B ASIS OF SPECIAL AUDIT REPORT. AFTER DISCUSSING THIS ISSUE IN DETAIL FOLLOWING OBSERVATIONS HAVE BEEN MADE: IN OTHER WORDS, IT IS TO BE NOTED THAT THE REQUEST OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF IT RULES, 1962 IS NOT BEING ACCEDED TO IN TOTO, HAS NEVER HELD THAT SUFFI CIENT OPPORTUNITY WAS AFFORDED TO THE ASSESSEE DURING ASSESSMENT PROCEEDI NGS. WE HAVE PERUSED THE IMPUGNED ORDER BUT WE DID NOT F IND ANY REASONS WHICH HAVE BEEN GIVEN BY THE LD. CIT(A) TO ADMIT SOME PORTION OF THE ADDITIONAL EVIDENCE AND IGNORE OTHER PORTION. EVEN IT IS NOT DISCUSSED WHICH EVIDENCE HA S BEEN ADMITTED AND WHICH EVIDENCE IS NOT ADMITTED. THIS I S VERY STRANGE BECAUSE LEGAL PRINCIPLES ON ADMISSION OF AD DITIONAL EVIDENCE ARE VERY CLEAR AND IF ADDITIONAL EVIDENCE IS ADMITTED OR REJECTED, THE SAME HAS TO BE SUPPORTED BY GIVING SPECIFIC REASONS. WHEREVER ADDITIONAL EVIDENCE WAS ADMITTED BY THE LD. CIT(A), WAS REFERRED FOR VERIFICATION IN THE RE MAND PROCEEDINGS TO THE ASSESSING OFFICER. REMAND REPO RT WAS ULTIMATELY SUBMITTED FOR ASSESSMENT YEAR 2003-04 TO 2005-06 ON 4.12.2012. FOR ASSESSMENT YEAR 2006-07 TO 2009 -10 FIRST REMAND REPORT WAS PREPARED ON 8.4.2013. THIS REPOR T WAS WITHDRAWN. SAME SEEMS TO BE PARTLY IN FAVOUR OF TH E ASSESSEE. WE HAVE RAISED SPECIFIC QUERY WHY THIS R EPORT WAS NOT ACCEPTED. IN REPLY GIVEN BY THE DCIT, CENTRAL CIRCLE, CHANDIGARH TO THE LD. CIT-D.R VIDE LETTER DATED 19. 8.2014 THIS ISSUE HAS BEEN DEALT IN PARA 3 & 4 WHICH ARE AS UN DER: SECONDLY IT IS BEING REITERATED THAT EH FIRST REMA ND REPORT WAS JUST A DRAFT REPORT AND NO COGNIZANCE MAY BE TAKEN OF THE SAME. THE ADDL CIT GAVE DIRECTIONS FOR PREPARATION OF REMAND REPORT UN DER HIS LETTER F. NO. ADDL.CIT/CENTRAL/CHD/2013-14/170 DATED 24.4.2013 (C OPY ENCLOSED WHICH HIS SELF EXPLANATORY. FINAL REMAND REPORTS D ATED 26.7.2013 WERE PREPARED AFTER CONSIDERING ALL THE REPLIES FILED BY THE ASSESSEE AND SUBMITTED. FURTHER THE SECOND REMAND REPORTS WERE FINALIZED AF TER CONSIDERING THE REPLIES SUBMITTED BY THE ASSESSEE (INCLUDING PAPER BOOKS) AND THERE DID NOT ARISE ANY NEED TO CALL THE ASSESSEE. ANOTHER EXPLANATION GIVEN VIDE LETTER DATED 2.7.201 4 BY DCIT, CENTRAL CIRCLE, CHANDIGARH TO ADDL CIT WHICH READS AS UNDER: GOVERNMENT OF INDIA INCOME TA DEPARTMENT OFFICE OF THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-I, ROOM NO. 2, AAYAKAR BHAWAN, SECTOR 17-E, CHANDIGARH 12 NO. DCIT/CC-I/CHD/2014-15/950 DATED: 02/07/2014 TO THE ADDL. COMMISSIONER OF INCOME TAX, RANGE CENTRAL, CHANDIGARH SIR, SUB: ITA NO. 1126 TO 1128/CHD/2013 IN THE CASE OF M/S SWAMI DEVI DAYAL HI- TECH EDUCATION ACADEMY, PANCHKULA-REGARDING KINDLY REFER TO THE SUBJECT CITED ABOVE. IN THIS REGARD, IT IS SUBMITTED THAT THE ASSESSMENT S WERE FRAMED IN THE CASES OF THE ABOVE MENTIONED ASSESSEE AFTER GETTING A SPECIAL AUDIT DONE AND AFTER THROUGH PERUSAL OF SEIZED RECORDS. T HE ASSESSEE WAS GIVEN REPEATED OPPORTUNITIES VIDE VARIOUS SHOW CAUS E LETTERS/QUESTIONNAIRES FOR PROVIDING THE EVIDENCE A ND THE ASSESSMENT WERE ACCORDINGLY FRAMED. AGAINST THE ORDERS OF THE AO, THE ASSESSEE FILED APPEALS BEFORE CIT(A) WHO ASKED FOR A REMAND REPORT FROM THE AO ON THE ADDITIONS MADE IN ASSESSMENT ORDERS. IN THIS BACKGROUND, DRAFT REMAND REPORTS WERE PREPARED BY A COMMITTEE COMPRIS ING OF INSPECTOR AND SR. TA., BUT THOSE REMAND REPORTS HAD CERTAIN F LAWS AND WERE NOT FORWARDED. THE REMAND REPORTS WERE MADE IN HASTE AS THE THEN AO WAS BUSY IN TIME BARRING MATTERS TILL 31.03.2014 AND TH EREAFTER SHE PROCEEDED ON MATERNITY LEAVE. THE COMMITTEE, WHICH WAS FORMED CONSISTING OF ONE INSPECTOR NAMELY SH. S.K. SEHGAL AND SR. TA NAMELY SH. RAHUL KUMAR, DID NOT KNOW THE FACTS OF THE WHOLE CASE. IT IS RES PECTFULLY SUBMITTED THAT THE ASSESSMENT ORDERS WERE FRAMED BY DCIT AND THERE FORE IN INSPECTOR/SR. TA DID NOT HAVE AUTHORITY AND EXPERTI SE TO COMMENT. IT WAS THE SOLE RESPONSIBILITY OF THE ASSESSING OFFICER TO HAVE PREPARED THE REPORTS. ON MERITS THE REPORTS SUFFERED FROM VARIOU S INCONSISTENCIES / IN CONGRUENCIES WHICH ARE DETAILED BELOW: A) MOST OF THE CONTENTIONS RAISED BY THE ASSESSEE D URING THE PROCEEDINGS BEFORE THE CIT(A) SEEM MERELY AN AFTERTHOUGHT. FOR INSTANCE IN A.Y. 2006-07, AN ADDITIONS OF RS. 11,73,250/- WAS MADE O N ACCOUNT OF CAPITATION FEES AS UNDISCLOSED INCOME OF THE SOCIET Y. A THOROUGH SHOW CAUSE WAS ISSUED TO THE ASSESSEE IN THIS REGARD DUR ING THE ASSESSMENT PROCEEDINGS. BUT IN THE REMAND REPORT PREPARED BY T HE COMMITTEE, THE CONTENTION OF THE ASSESSEE WAS FOUND TO BE CORRECT UP TO THE EXTENT OF RS. 9,70,575/- DESPITE THE FACT THAT THE ASSESSEE F AILED TO RECONCILE THE SAME WITH THE ADDITIONS PROPOSED IN SHOW CAUSE. B) SIMILARLY IN THE SAME A.Y. 2006-07, ADDITION OF RS. 78,61,000/- WAS MADE ON ACCOUNT OF UNRECORDED AMOUNTS RECEIVED FROM STUDENTS OVER AND ABOVE THE FEE AMOUNT FIXED BY THE SOCIETY. THE COMMITTEE IN ITS REPORTS FOUND ENTRIES WORTH RS. 54,18,000/- AS CORR ECT. A THOROUGH SHOW CAUSE WAS GIVEN TO THE ASSESSEE ON THIS ISSUE DURIN G THE ASSESSMENT PROCEEDINGS TO WHICH THE ASSESSEE SUBMITTED THAT TH E LOOSE DOCUMENTS FOUND IN THE SEARCH WERE JUST THE WASTE PAPERS. BUT BEFORE THE CIT(A), THE ASSESSEE SUDDENLY COMES WITH AN EXPLANATION BY FURNISHING VARIOUS CHARTS. THE ASSESSEE HAS TAKEN TWO VERY DIFFERENT S TANDS AND HIS CONTENTIONS SEEM UNRELIABLE. HENCE, NO RELIEF CAN B E GIVEN TO THE ASSESSEE AS PROPOSED IN THE REMAND REPORT PREPARED BY THE COMMITTEE. THESE INSTANCES ARE MERELY INDICATIVE IN NATURE. TH ERE ARE SIMILAR DISCREPANCIES IN THE REMAND REPORTS PREPARED BY THE COMMITTEE IN DIFFERENT ASSESSMENT YEARS AS THE COMMITTEE HAD NOT GONE INTO DETAILS OF THE SEIZED MATERIALS/DOCUMENTS/APPRAISAL REPORTS. S INCE THE ASSESSING OFFICER HAD TO GO ON MATERNITY LEAVE AND THERE WAS PRESSURE ON HER TO SUBMIT THE REPORTS, SHE MERELY FORWARDED THE REPORT S OF THE COMMITTEE TO THE ADDL. CIT(C). IT IS KINDLY BROUGHT TO THE KNOWL EDGE THAT THIS REPORT 13 WAS NEVER APPROVED BY THE RANGE HEAD ON MERITS AND RETURNED TO THE AO FOR RECONSIDERATION AND WAS ALSO DIRECTED TO EXAMIN E THE ISSUES RAISED IN THE REPORT. AFTER DOING THROUGH VERIFICATION, AGAIN A REMAND REPORT WAS SUBMITTED WITH ADDITIONAL CIT, RANGE OFFICE. THIS REPORT OF THE SO CALLED COMMITTEE WAS ONLY INT ERNAL AND IF AT ALL, IT IS IN THE POSSESSION OF THE ASSESSEE, IT IS UNLAWFUL A ND ACTION SHOULD BE TAKEN AGAINST THEM AS HOW HAVE THEY LAID HANDS ON S UCH INTERNAL REPORT. BECAUSE OF THE VERY FACT THAT THE ASSESSEE HAVE QUO TED THE REPORTS OF SO CALLED COMMITTEE BEFORE HONBLE ITAT, IT APPEARS TH AT THERE MIGHT BE SOME NEXUS BETWEEN THE COMMITTEE AND THE ASSESSEE. THOUGH THERE IS NO SUCH EVIDENCE BEFORE THE DEPARTMENT ON THE NEXUS BUT PREPONDERANCE OF PROBABILITY AND SEQUENCE OF EVENTS SUGGEST SUCH POSSIBILITIES. HAVING SAID THE ABOVE, WE ARE OF THE FIRM VIEW THAT NO COGNIZANCE OUGHT TO BE TAKEN ON REPORT PREPARED BY NON COMPETENT, NO N WELL VERSED COMMITTEE AND IT IS REQUESTED THAT THE SUBMISSION O F THE ASSESSEE BEFORE HONBLE ITAT REGARDING REPORT OF THE COMMITTEE RECE IVED NOT BE GIVEN ANY CREDENCE. IT IS REQUESTED THAT REMAND REPORTS D ATED DATED 26.07.2013 MAY BE TREATED AS FINAL REPORTS. FURTHER AS PER PROVISIONS OF THE INCOME TAX LAW, NO SUCH COMMITTEE CAN BE FORMED. MOREOVER AS PER RECORD, NO PRIOR APPROVA L OF THE RANGE HEAD WAS TAKEN BEFORE FORMING SUCH A COMMITTEE. YOURS FAITHFULLY, SD/- (DR. RAMAN GARG) DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE- I , CHANDIGARH PERUSAL OF ABOVE CLEARLY SHOW THAT NO ANSWER HAS BE EN GIVEN TO THE QUERY WHETHER THERE IS ANY BAR IN THE ACT FO R CONSTITUTION OF A COMMITTEE. DAY IN DAY OUT WE COME ACROSS CASE S WHERE REVENUE CONSISTENTLY CONDUCT VARIOUS QUERIES THROUG H THE INSPECTORS. THERE IS NO BAR IN THE ACT FOR DELEGAT ION OF POWERS DURING ASSESSMENT OR REMAND PROCEEDINGS FOR VERIFIC ATION OF VARIOUS DOCUMENTS. FOR EXAMPLE ONE OF THE ADDITION IS MADE ON ACCOUNT OF TOTAL FEES RECEIVED FROM THE STUDENT S, WHICH ACCORDING TO THE ASSESSING OFFICER HAS NOT BEEN CRE DITED OR REMAINS UNREPORTED. WE ALSO CALLED FOR BOOKS OF AC COUNT AND VERIFIED ONLY TWO ENTRIES ON ACCOUNT OF UNRECORDED FEES IN CASE OF RAVINDER KATARIA AND AKSHAY WHERE WE HAVE F OUND THAT FEE WAS SPLIT INTO VARIOUS HEADS LIKE TUITION FEE AND POSTAL FEES. 25 FOR EXAMPLE IN CASE OF AKSHAY KUMAR A SUM OF RS. 36,000/- WAS FOUND TO BE CREDITED IN CASH BOOK ON 1 4.7.2005 UNDER THE HEAD HOSTEL CHARGES RECEIVED VIDE CR N O. 5281. SIMILARLY FURTHER A SUM OF RS. 3500 WAS FOUND CREDI TED ON THE SAME DATE VIDE CR NO. 5282 TO HOSTEL SECURITY ACCOU NT. IN CASE OF RAVINDER KATARIA FOLLOWING CREDITS HAVE BEE N MADE AS UNDER: DATE CR NO ACCOUNTING HEAD AMOUNT 23.7.2005 163 TUITION FEE RS. 4100 8.8.2005 201 TUITION FEE RS. 2000 DEVELOPMENT RS. 500 14 CHARGES ELIGIBILITY FEE RS. 1150 EXAMINATION FEE RS. 450 STUDENT FEE RS. 1500 TUITION FEE RS. 23900 TOTAL RS. 33650 FROM ABOVE IT BECOMES CLEAR THAT AN AMOUNT RECEIVED FROM A PARTICULAR STUDENT WAS CREDITED UNDER VARIOUS HEADS AND THE REVENUE HAS NOT BOTHERED TO VERIFY THE SAME AND MAD E ADDITIONS ON ACCOUNT OF UNRECORDED RECEIPTS. IN RE SPONSE TO OUR QUERY WHETHER A OPPORTUNITY WAS GIVEN IN RESPEC T OF REMAND REPORTS FURNISHED FOR ASSESSMENT YEAR 2003- 04 TO 2005-06, IT IS SIMPLY STATED THAT ALL THE INFORMATI ON WAS DULY VERIFIED. THESE EVIDENCES WERE SUBMITTED BEFORE TH E LD. CIT(A) ON 9.3.2012 AND THE REMAND REPORTS HAVE BEEN ULTIMATELY FURNISHED O THE LD. CIT(A) ON 4.12.2012, THEREFORE THESE DOCUMENTS WERE LYING WITH THE ASSESSING OFFIC ER OFFICE FOR NINE MONTHS BUT NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO RECONCILE THE AMOUNT AND OFFICERS HAVE LOOKED ON LY TO ONE ACCOUNT AND CONCLUDED THAT BALANCE AMOUNT IS NOT RE CORDED IN THE BOOKS AND ADDITION HAS BEEN MADE EITHER UNDER T HE HEAD CAPITATION FEES FOR THE AMOUNT WHICH WAS NOT CRED ITED OR UNDER THE HEAD UNRECORDED FEES. IN OUR OPINION, U NLESS THE AMOUNTS ARE LOOKED UNDER THE VARIOUS HEADS FOR WHIC H SEPARATE LEDGER ACCOUNTS ARE MAINTAINED THE REVENU E MAY COME TO A WRONG CONCLUSION THAT WHOLE OF THE AMOUNT HAS NOT BEEN CREDITED. THEREFORE IT WAS NECESSARY TO CALL T HE ASSESSEE AND CONFRONT IT WITH WHATEVER DOUBTS THE OFFICER WA S ENTERTAINING SO THAT THE ASSESSEE COULD HAVE GIVEN CLARIFICATION WHICH WOULD ENABLE THE REVENUE TO GIV E TO JUST CONCLUSION. 26 AS FAR AS ASSESSMENT YEAR 2006-07 TO 2009-10 AR E CONCERNED, THE SUBMISSIONS WERE MADE BEFORE THE LD. CIT(A) ON JULY 2012 AND THE FIRST REMAND REPORT WAS PREPAR ED ON 8.4.2013 THAT IS ALMOST AFTER EIGHT MONTHS. SINCE THESE REPORTS WERE PARTIALLY IN FAVOUR OF THE ASSESSEE, T HEY WERE WITHDRAWN AND THE SAME WERE STATED BEFORE US TO BE DRAFT REPORT BUT NO BASIS HAS BEEN GIVEN BY THE ADDL CIT. IN THIS CONNECTION COPY OF THE LETTER DATED 24.4.2013 WRITT EN BY ADDL CIT TO DCIT READS AS UNDER: F NO. ADDL CIT/CENTRAL/CHD/2013-14/170 DT . 24.4.2013 TO THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE I 15 CHANDIGARH SUB: REMAND REPORT IN THE CASE OF M/S SWAMI DEVI DY AL HI TECH EDUCATION ACADEMY, VILLAGE GOLPURA, BARWALA SUBMI SSION OF REPORT ON APPLICATION UNDER RULE 46A AND WRITTEN SUBMISSIONS ASSESSMENT YEAR 2006-07 TO 2009-10 REGARDING THE REMAND REPORTS AS SUBMITTED BY THE ASSESSING OF FICER ARE RETURNED WITH FOLLOWING REMARKS: REMAND REPORTS HAVE BEEN PREPARED IN HASTE, WITHOU T PROPER APPLICATION OF MIND. REMAND REPORTS ARE HEAVILY BIASED IN FAVO UR OF THE ASSESSEE AND THE RESULT OF THE ASSESSMENT ORDERS HAVE BEEN T OTALLY PLACED WITH. IT IS INTRIGUING TO NOTE AS TO WHY THE ASSESSING OFFIC ER HAS RELIED UPON REPORTS OF INSPECTOR SHRI S.K. SEHGAL AND SR. T.A. SHRI RAHUL KUMAR. IN VIEW OF THE ABOVE REMARKS AND GLARING INCONSISTE NCIES, YOU ARE DIRECTED TO PUT UP FRESH REMAND REPORTS TAKING INTO ACCOUNT THE ASSESSMENT ORDERS, SEIZED DOCUMENTS AND SUBMISSION MADE BY THE ASSESSEE. THE FRESH REMAND REPORTS INCORPORATING T HE CHARGES SHOULD BE SUBMITTED BY 3.5.2013. SD/- (RAJEEV KUMAR) ADDL COMMISSIONER OF INCOME TAX RANGE (CENTRAL) CHANDIGARH ABOVE DOES NOT SHOW ANY REASON WHY THESE REPORTS WE RE REJECTED. FURTHER IF SUCH REMAND REPORTS WERE PREP ARED IN HASTE AND WITHOUT PROPER APPLICATION OF MIND, WE FA IL TO UNDERSTAND WHY NO DISCIPLINARY ACTION WAS TAKEN AGA INST SUCH ERRING STAFF MEMBERS. IF THE COMMITTEE WAS ILLEGAL LY CONSTITUTED WHY NO ACTION WAS TAKEN AGAINST THE OFF ICER WHO CONSTITUTED THIS COMMITTEE. THOUGH IN OUR OPINION, THERE IS NO BAR ON DELEGATION OF POWER FOR VERIFICATION OF DOCU MENTS IN ASSESSMENT PROCEEDINGS OR REMAND PROCEEDINGS. EVEN IF IT IS ASSUMED WHATEVER IS STATED IS CORRECT THEN WHILE MA KING SECOND REPORT THE REVENUE SHOULD HAVE CALLED THE AS SESSEE AND ASK FOR VARIOUS EXPLANATIONS ON VARIOUS DOCUMEN TS FILED WHICH RAN INTO THOUSANDS OF PAGES. THE LD. CIT-D.R HAD SUBMITTED THAT PROPER OPPORTUNITY WAS GIVEN. WE RE PRODUCE THE CONTENTS OF WRITTEN SUBMISSIONS IN THIS REGARD WHICH ARE AS UNDER: ASSESSEE IN HIS BRIEF SYNOPSIS OF ADDITIONAL EVIDE NCE HAS STATED THAT FOR ASSESSMENT YEAR 2003-04 PAGE 227 & 228 OF PAPER BO OK ASSESSING OFFICER SHOULD HAVE MADE THE VERIFICATION. ASSESSE E FAILED TO REALIZE THAT DESPITE SEVERAL OPPORTUNITY ASSESSEE HAD ONLY SUBMITTED THE NAMES AND ADDRESSES OF THE DONORS ONLY BEFORE ASSESSING O FFICER AND SPECIAL AUDITOR AND ASSESSING OFFICER HAS SENT THE REMAND R EPORT ONLY AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE AND ALSO TH E ONUS IS ON THE ASSESSEE TO PROVE THE IDENTITIES, GENUINENESS OF TR ANSACTION AND CREDITWORTHINESS OF THE DONORS AND NOT ON THE DEPAR TMENT. REGARDING PAPER BOOK PAGE 229 NON AVAILABILITY OF BILLS IT IS SUBMITTED ASSESSEE HAD TAKEN THE CDS AND HE COULD HAVE EXPLAINED THE E NTRIES. HE ALSO FAILED TO REALIZE THAT NO BILLS WERE FOUND DURING T HE COURSE OF SEARCH. REGARDING PAPER BOOK PAGE 231 AT 2003-04 ASSESSEE F AILS TO REALIZE THAT ASSESSING OFFICER HAD ASKED FOR CONFIRMATION OF THE SUNDRY CREDITORS RECORDED IN THE BOOKS WHICH HAS NOT BEEN SUBMITTED AND, THEREFORE ONUS HAS NOT BEEN DISCHARGED BY THE ASSESSEE. NOW IF THE ASSESSEE HAS FILED NAME AND ADDRESS OF T HE PERSON AND HIS PAN, CONFIRMATIONS IN RESPECT OF DONATIONS SAME MAYBE ACCEPTED AS SUCH AND IN CASE REVENUE HAS ANY DOUBT 16 THEN THE ASSESSING OFFICER SHOULD HAVE CALLED THE A SSESSEE AND ASKED IT TO PRODUCE FURTHER PAPERS OR PRODUCE T HE DONORS BUT THE EVIDENCE CANNOT BE REJECTED SIMPLY SAYING T HAT FULL PROOF EVIDENCE WAS NOT FILED. IT IS ONLY THE ASSES SING OFFICER WHO CAN SAY WHAT OTHER EVIDENCES WERE RELEVANT AND THEN ASK ASSESSEE TO FILE AND/OR CLARIFY THE SAME. THEREFOR E IT BECOMES CLEAR THAT WHATEVER ADDITIONAL EVIDENCE WAS FILED, ,HAS NOT BEEN PROPERLY EXAMINED BECAUSE ASSESSEE WASSNEVER C ALLED TO EXPLAIN AND/OR CLARIFY THE DOCUMENTS. 27 BOTH THE PARTIES BEFORE US HAVE RELIED ON VARIOU S CASE LAWS DEALING WITH VARIOUS FACETS OF ADMISSION OF AD DITIONAL EVIDENCE. WE HAVE PERUSED THESE JUDGMENTS CAREFULL Y AND PRINCIPLE REMAINS SAME AND THEREFORE WE ARE NOT DIS CUSSING THESE JUDGMENTS IN DETAIL. WE WOULD LIKE TO REFER TO THE DECISION OF HON'BLE HIGH COURT OF PUNJAB & HARYANA IN CASE OF CIT V. MUKTA METAL (SUPRA). IN THAT CASE WHILE DEA LING WITH Q NO. 5 WHICH RELATED TO ADMISSION OF ADDITIONAL EVID ENCE AND THE HON'BLE COURT OBSERVED LAT PARA 15 AS UNDER: AS REGARDS Q NO. 5 RELATING TO THE ADDITIONAL EVID ENCE WE ARE OF THE OPINION THAT THE REPORT OF THE FORENSIC SCIENCE LAB ORATORY WAS A RELEVANT MATERIAL AND SO WAS THE AFFIDAVIT DATED DEC 27,2004 OF THE SEARCHED PERSON. THE ADDITIONAL EVIDENCE WAS NECESSARY FOR JUST DECISION OF THE MATTER. AT BEST, THE DEPONENT COULD BE PRODUCED FO R CROSS-EXAMINATION. THE ADDITIONAL EVIDENCE CAN BE ALLOWED IN THE INTER EST OF JUSTICE IF THE SAME IS AUTHENTIC AND NECESSARY FOR THE DECISION OF EH ISSUE RAISED BEFORE THE TRIBUNAL. IN THE FACTS AND CIRCUMSTANC ES THE TRIBUNAL WAS NOT JUSTIFIED IN DECLINING TO CONSIDER THE ADDITION AL EVIDENCE COMPRISING THE OPINION OF THE LABORATORY OF THE GOVERNMENT EX AMINER AND ALSO THE AFFIDAVIT OF THE AUTHOR OF THE DIARY, THOUGH THE DO CUMENTS HAD A DIRECT BEARING ON THE ISSUE. THE QUESTION IS ANSWERED ACC ORDINGLY IN FAVOUR OF THE REVENUE. FROM ABOVE IT BECOMES CLEAR THAT IF THE ADDITIONAL EVIDENCE IS AUTHENTICATED AND NECESSARY FOR THE DECISION THEN S AME IS REQUIRED TO BE ADMITTED. 28 RECENTLY THIS ISSUE CAME UP FOR CONSIDERATION OF THE HON'BLE SUPREME COURT IN CASE OF TEK RAM (DEAD THROUGH LRS ) V CIT, 357 ITR 133 (S.C). IN THAT CASE SOME ADDITION AL EVIDENCE WAS SUBMITTED BEFORE THE HON'BLE SUPREME C OURT. HON'BLE COURT AT PARA 4 & 5 OBSERVED AS UNDER: 4 IN OUR OPINION, THE DOCUMENTS WHICH THE APPELLAN TS HAVE NOW FILED BEFORE THIS COURT ARE OF SOME RELEVANCE AND THOSE D OCUMENTS SHOULD BE LOOKED INTO BY THE HIGH COURT BEFORE IT COMES TO A CONCLUSION WHETHER THE APPEAL REQUIRES TO BE ALLOWED OR TO BE REJECTED . 5 TAKING THAT VIEW OF THE MATTER, WE SET ASIDE THE ORDER PASSED BY THE HON'BLE HIGH COURT AND REMAND THE MATTER BACK TO THE HON'BLE HIGH COURT FOR FRESH DISPOSAL OF ITA NO. 109 OF 2005, A FTER ACCEPTING THE DOCUMENTS THAT WERE/MAY BE FILED BY THE APPELLANTS. THUS IF THE EVIDENCE IS RELEVANT AND GOES TO THE RO OT OF THE MATTER EVEN IF SAME IS FILED BEFORE THE HON'BLE SUP REME COURT,SAME WAS DIRECTED TO BE ADMITTED AND THE MATT ER WAS REMANDED. 29 HOWEVER, EVIDENCE CAN BE ADMITTED ONLY IF SAME I S FOUND TO BE AUTHENTIC. THE LD CIT-D.R HAS SHOWN HER INAB ILITY TO VERIFY THE SAME BECAUSE ADDITIONAL EVIDENCE WAS RUN NING INTO 17 MORE THAN 5000 PAGES. IN OUR OPINION, EVEN WE CAN NOT VERIFY THE SAME. FOR EXAMPLE LIST OF 294 PERSONS ALONG WI TH RECEIPTS, CONFIRMATIONS AND PANS AND IDENTITY PROOF IN THE FO RM OF DRIVING LICENSE OR OTHER DOCUMENTS HAVE BEEN FILED FOR DONATIONS. NOW IT IS ALMOST IMPOSSIBLE FOR THE TRI BUNAL TO SAY WHETHER SUCH DOCUMENTS ARE AUTHENTICATED OR NOT? T HAT IS WHY GENERALLY THE EVIDENCES ALWAYS ARE REFERRED BAC K TO THE ASSESSING AUTHORITY FOR VERIFICATION BUT SUCH EVIDE NCES CANNOT BE SIMPLY BRUSHED ASIDE. 30 AS OBSERVED EARLIER AND IN THE INTEREST OF JUSTI CE THERE HAS TO BE SOME FULL STOP ON ADMISSION OF THE ADDITI ONAL EVIDENCE AND THAT IS WHY WE HAVE SUGGESTED TO THE L D. COUNSEL FOR THE ASSESSEE TO FILE WHATEVER ADDITIONA L EVIDENCE IS AVAILABLE WHICH HAS BEEN FILED BEFORE US THROUGH FOLLOWING PAPERS: ASSESSMENT YEAR PARTICULARS 2003-04 TWO PAPER BOOKS CONTAINING 454 PAGES 2004-05 THREE PAPER BOOKS CONTAINI9NG 800 PAGES 2005-06 THREE PAPER BOOKS CONTAINING 1115 PAGES 2006-07 TWO PAPER BOOKS CONTAINING 609 PAGES 2007-08 ONE PAPER BOOK CONTAINING 383 PAGES 2008-09 THREE PAPER BOOKS CONTAINING 1268 PAGES 2009-10 THREE PAPER BOOKS CONTAINING 1174 PAGES THIS WOULD SERVE SOME PURPOSE. FOR EXAMPLE IN CAS E OF ADDITION ON ACCOUNT OF DONATION TOWARDS CORPS FUND WAS MADE FOR RS. 83,18,819/- FOR ASSESSMENT YEAR 2003 -04 BUT THE ADDITIONAL EVIDENCE HAS BEEN FILED EVEN BEFORE US ONLY FOR RS. 28,25,402/-. THEREFORE IN OUR OPINION, THE ASS ESSEE CANNOT BE ALLOWED TO FILE MORE EVIDENCES BEFORE THE ASSESSING OFFICER AND AT THE SAME TIME THE EVIDENCE WHICH HAS BEEN FILED BEFORE US NEEDS TO BE EXAMINED. 31 IN THE ABOVE BACKGROUND, IN OUR OPINION, THE ADD ITIONAL EVIDENCE FILED BEFORE US NEEDS TO BE ADMITTED AND T HEREFORE WE ADMIT THE SAME. SINCE THIS ADDITIONAL EVIDENCE NEEDS VERIFICATION, THEREFORE WE SET ASIDE THE ORDER OF T HE CIT(A) AND REMIT ALL THE APPEALS TO THE FILE OF ASSESSING OFFI CER FOR REEXAMINATION OF THE ISSUES AFTER PURSUING THE SAME IN THE LIGHT OF ADDITIONAL EVIDENCE WHICH HAS BEEN ADMITTE D BY US. THE ASSESSING OFFICER SHOULD ALSO GIVE SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO EXPLAIN VARIOUS ISSUES. FOR EXAM PLE REGARDING ADDITION ON ACCOUNT OF SECTION 40(A)(IA) FOR NON DEDUCTION OF TAX, IT WAS SUBMITTED THAT MUMBAI BENC H OF THE TRIBUNAL HAS TAKEN A VIEW IN CASE OF MAHATAMA GANDH I SEWA V. DCIT(SUPRA) THAT NO ADDITION CANNOT BE MADE U/S 40(A)(IA) IN CASE OF A TRUST IS EXEMPT U/S 11. THE ASSESSING OFFICER SHOULD NOT ALLOW ASSESSEE TO FILE ANY OTHER EVIDENC E EXCEPT 18 FILED BEFORE US OR THE LD. CIT(A). HOWEVER, THE ASS ESSEE SHOULD BE ALLOWED TO FILE DOCUMENTS EXPLAING THE EV IDENCE ALREADY FILED BEFORE US. LOOKING AT THE EARLIER APP ROACH OF THE REVENUE WE SPECIFICALLY DIRECT THE ASSESSING OFFICE R TO CONDUCT THE PROCEEDINGS IN TIME BOUND FASHION AND R ECORD ALL THE PROCEEDINGS PROPERLY AFTER PROVIDING ADEQUATE O PPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE IN THE SET ASIDE PROCEEDINGS. 7 FROM ABOVE IT IS CLEAR THAT THE ADDITIONAL EVIDEN CE WAS ADMITTED SO THAT THE ASSESSEE HAS PROPER OPPORTUNIT Y TO EXPLAIN THE ISSUES BEFORE THE ASSESSING OFFICER. IN THESE CASE S ALSO ADDITIONAL EVIDENCE WHICH HAS BEEN FILED BEFORE US, IS NOT COM PLETE. FOR EXAMPLE IN CASE OF CORPUS FUND DETAIL OF ADDITIONS MADE AND THE AMOUNT OF CONFIRMATION IN THE FORM OF ADDITIONAL EV IDENCE NOW BEING FILED IS AS UNDER: : ASSESSMENT YEAR AMOUNT OF ADDITION AMOUNT OF CON FIRMATION CERTIFICATE 2006-07 30,20,000.00 30,04,000.00 2007-08 27,00,000.00 20,10,200.00 2008-09 1,04,02,500.00 87,07,500.00 2009-10 4,63,750.00 4,63,750.00 GROSS TOTAL 1,65,86.250.00 1,41,85,450.00 AS IN THE CASE OF SHRI SWAMI DEVI DAYAL V DCIT (SUP RA) TO PUT A FULL STOP, WE HAVE ADVISED THE ASSESSEE TO FILE WHATEVER ADDITIONAL EVIDENCE WAS AVAILABLE. IN THIS CASE THE ASSESSEE HAS DONE SAME THING ON SUO MOTO BASIS. THEREFORE WE ADMIT THE AD DITIONAL EVIDENCE FILED BEFORE THE LD. CIT(A) AND ADDITIONAL EVIDENCE FILED BEFORE US. SINCE PROPER OPPORTUNITY HAS NOT BEEN P ROVIDED AND ADDITIONAL EVIDENCE ALSO NEEDS VERIFICATION, THEREF ORE WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR REEXAMINATION OF THE ISSUE AF TER PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE TO EXPLAIN VARIO US ISSUES. THE ASSESSING OFFICER SHOULD ALSO FOLLOW VARIOUS DIRECT IONS GIVEN IN PARA 31 IN CASE OF SHRI SWAMI DEVI DAYAL V DCIT (SUPRA) WHICH HAS BEEN 19 EXTRACTED BY US ABOVE. PROCEEDINGS SHOULD BE CONDU CTED IN TIME BOUND FASHION AND THE ASSESSEE IS ALSO DIRECTED TO COOPERATE IN THE SET ASIDE PROCEEDINGS. 8. IN THE RESULT, APPEALS OF THE ASSESSEE AND THE R EVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.11.2014 SD/- SD/- (BHAVNESH SAINI) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27.11.2014 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR