VINAY KUMAR, MUMBAI V. ITO WD 26(1)(1), MUMBAI

ITA 2181/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75673 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 18-02-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 17-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B P K
• Keywords: Reopening of assessment; Search and seizure; Loose papers; Retrospective amendment
• Section: 69C; 147; 131; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 2181/MUM/2011 (ASSESSMENT YEAR: 2001-02) SHRI VINAY KUMAR INCOME TAX OFFICER - 26(1)(1) 203, BLOCK-C, TYPE IV MUMBAI CGS COLONY, WADALA (W) VS. MUMBAI 400031 PAN - AMDPK7863N APPELLANT RESPONDENT APPELLANT BY: SHRI JAYANT R. BHATT RESPONDENT BY: SHRI B.P.K. PANDA DATE OF HEARING: 18.02.2014 DATE OF PRONOUNCEMENT: 21.02.2014 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-28, MUMBAI AND IT PERTAINS TO A.Y. 2001-02. 2. THOUGH THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN T HE GROUNDS OF APPEAL ATTACHED TO FORM NO. 36, ONLY TWO ISSUES EME RGE OUT OF IT, I.E. (A) WHETHER REOPENING OF ASSESSMENT UNDER SECTION 147 O F THE ACT IS VALID, AND (B) WHETHER THE ADDITION OF ` 3,91,000/- MADE BY THE AO UNDER SECTION 69 OF THE ACT IS IN ACCORDANCE WITH LAW. 3. FACTS NECESSARY FOR DISPOSAL OF THE APPEAL ARE STAT ED IN BRIEF. THE ASSESSEES SON, SHRI MADHUR VORA, WAS ADMITTED IN O NE OF THE COLLEGES RUN BY M/S. D.Y. PATIL GROUP AND HE APPEARS TO HAVE PAI D A SUM OF ` 1,92,000/- BY CHEQUE DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. 4. A SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN D.Y . PATIL GROUP ON 20.07.2005 BY THE INVESTIGATION WING AND IN THE BOO KS MAINTAINED BY THEM IT IS NOTICED THAT SHRI VINAY KUMAR, I.E. THE ASSES SEE HEREIN PAID A SUM OF ITA NO. 2181/MUM/2011 SHRI VINAY KUMAR 2 ` 5,83,000/- IN CASH FOR ADMISSION OF HIS SON SHRI MA DHUR VORA (IT DESERVES TO BE NOTICED HERE THAT THE CASH PAYMENT APPEARS TO BE IN ADDITION TO THE REGULAR PAYMENT MADE BY CHEQUE). DURING THE COURSE OF ENQUIRIES CONDUCTED BY ADDL. DIRECTOR OF INCOME TAX (INV), UNIT-I IN D. Y. PATIL GROUP OF CASES ONE OF THE EMPLOYEE AND ACCOUNT CLERK, OF M/S. RAMRAO A DIK INSTITUTE OF TECHNOLOGY APPEARS TO HAVE STATED THAT RECEIPTS AGA INST THE PAYMENTS WERE MAINTAINED BY THEM AND THE FIGURES MAINTAINED IN TH E DIARIES REPRESENT DISBURSEMENTS MADE AGAINST CASH COLLECTION FROM THE STUDENTS AT THE TIME OF THEIR ADMISSION. BASED ON THE SAME, PROCEEDINGS APP EARS TO HAVE BEEN INITIATED IN D.Y. PATIL GROUP OF CASES, WHICH WAS U LTIMATELY SETTLED BEFORE THE SETTLEMENT COMMISSION WHEREIN THE INSTITUTIONS APPE ARED TO HAVE ACCEPTED THIS AMOUNT AS CASH DONATION. IT IS NOT KNOWN AS TO WHETHER THEY HAVE DECLARED IT AS UNDISCLOSED INCOME OR NOT, SINCE THE ORDER PASSED BY THE SETTLEMENT COMMISSION OR THE ORDERS PASSED BY THE A SSESSING OFFICERS IN THE AFOREMENTIONED CASES ARE NOT PLACED BEFORE US. 5. AT THIS JUNCTURE IT DESERVES TO BE NOTICED THAT THE ASSESSEE, IN THE PREVIOUS YEAR RELEVANT TO THE YEAR UNDER CONSIDERAT ION, DECLARED TOTAL INCOME OF ` 1,64,360/- WHICH MAINLY CONSISTS OF SALARY, RENT AN D INTEREST INCOME AND THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF TH E ACT. HOWEVER, AS PER THE INFORMATION RECEIVED FROM THE DIT (INV), UNIT-I , MUMBAI, REFERABLE TO THE INFORMATION GATHERED DURING THE COURSE OF THE SEARC H CONDUCTED IN D.Y. PATIL GROUP CASES, THE AO CONCERNED ISSUED NOTICE UNDER S ECTION 148 OF THE ACT ON 28.03.2008 AFTER OBTAINING NECESSARY SANCTION FR OM THE ADDL. CIT, RANGE 26(1), AS REQUIRED UNDER SECTION 151(2) OF THE INCO ME TAX ACT. AS CAN BE NOTICED FROM THE ASSESSMENT ORDER THE AO APPEARS TO HAVE RECORDED THE REASONS FOR REOPENING OF THE ASSESSMENT, WHICH IS E SSENTIALLY BASED UPON THE INFORMATION GATHERED DURING THE SEARCH CONDUCTE D IN THE CASE OF D.Y. PATIL GROUP AND THE SAME WAS FORWARDED TO THE ADDL. CIT WHO HAS ALSO RECORDED HIS SATISFACTION. PG. 38 OF THE PAPER BOOK DISCLOSED THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT. IN RESPON SE TO THE NOTICE THE ASSESSEE, VIDE HIS LETTER DATED 14 TH APRIL, 2008, SUBMITTED THAT HE HAD ALSO RECEIVED A NOTICE UNDER SECTION 131 OF THE ACT FROM DDIT (INV), UNIT-I(4) AND REPLY WAS ALSO FILED ON 25.02.2008 AND FURTHER SUBM ITTED THAT TO THE BEST OF ITA NO. 2181/MUM/2011 SHRI VINAY KUMAR 3 HIS KNOWLEDGE AND BELIEF THE RETURN ORIGINALLY FILE D REFLECTS THE CORRECT AND COMPLETE INCOME. THEREAFTER, FROM TIME TO TIME THE AO CALLED UPON THE ASSESSEE TO EXPLAIN THE SOURCE FOR THE CASH PAID TO THE INSTITUTE, BASED UPON THE THREE DOCUMENTS, WHICH ARE PLACED IN PAGES 29 T O 31 OF THE PAPER BOOK WHICH MERELY SHOWS SOME DIARY ENTRIES SAID TO HAVE BEEN MAINTAINED BY THE AFOREMENTIONED CLERK OF THE D.Y. PATIL GROUP WHEREI N THE NAME OF THE ASSESSEES SON WAS MENTIONED AGAINST THE TOTAL AMOU NT OF ` 5,83,0000/-. FINALLY, ON 23.12.2008 THE ASSESSEE SUBMITTED THAT THE PAYMENTS MADE BY CHEQUE WERE ALREADY EXPLAINED AND WITH REGARD TO TH E BALANCE, WHICH IS AVERRED TO HAVE BEEN PAID BY THE ASSESSEE, HE WOULD NOT BE ABLE TO RESPOND UNLESS HE IS PROVIDED WITH COPIES OF THE MATERIAL O N WHICH THE AO SEEKS TO MAKE AN ADDITION AND ALSO REQUESTED FOR PROVIDING A N OPPORTUNITY TO RENDER HIS EXPLANATION THEREAFTER. IT WAS ALSO SUBMITTED T HAT HE IS A GOVERNMENT EMPLOYEE SINCE 1972 AND HIS MAIN SOURCE OF INCOME I S SALARY. HE ALSO DENIED HAVING MADE ANY PAYMENT BY WAY OF DONATION. HE ALSO SUBMITTED THAT NO ADVERSE INFERENCE CAN BE MADE AGAINST HIM I N RESPECT OF CASH PAYMENT BASED ON THE THREE DUMB DOCUMENTS WHICH IN NO WAY SHOW THAT THE ASSESSEE, IN FACT, MADE THE PAYMENT. THE AO, HO WEVER, PROCEEDED TO MAKE AN ADDITION MERELY BASED UPON THE AFOREMENTION ED THREE DOCUMENTS WITHOUT FURNISHING ANY MATERIAL TO THE ASSESSEE AND WITHOUT GIVING THE ASSESSEE AN OPPORTUNITY TO EXAMINE THE PERSONS WHO HAVE MADE THE STATEMENTS OR TO CROSS VERIFY THE VERACITY OF THE S O CALLED DOCUMENTS. THE EMPHASIS OF THE AO WAS MORE ON THE FACT THAT THE DO CUMENTS SEIZED DURING THE SEARCH AND THERE ARE DIARY ENTRIES BEARING THE NAME OF THE ASSESSEE AND THE AMOUNT IS SHOWN TO HAVE BEEN PAID BY HIM IN CAS H, BUT DESPITE SEVERAL OPPORTUNITIES THE ASSESSEE WAS NOT ABLE TO PROVE HI S INNOCENCE. HAVING MENTIONED SO HE MADE AN ADDITION OF ` 3,91,000/-, UNDER SECTION 69C OF THE ACT, WHICH IS THE DIFFERENCE BETWEEN THE TOTAL CASH SAID TO HAVE BEEN RECEIVED FROM THE ASSESSEE, AS REFLECTED IN THE DIA RY ENTRIES FOUND IN THE PREMISES OF THE D.Y. PATIL GROUP, AND THE ACTUAL CH EQUE PAYMENT MADE BY THE ASSESSEE. 6. AGGRIEVED, ASSESSEE CHALLENGED THE ORDER PASSED BY THE AO ON SEVERAL COUNTS, I.E. (A) REOPENING OF ASSESSMENT IS NOT IN ACCORDANCE WITH LAW, (B) ITA NO. 2181/MUM/2011 SHRI VINAY KUMAR 4 BASED ON MERE DIARY ENTRIES, THAT TOO FOUND IN THE POSSESSION OF A THIRD PARTY, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE, AND (C) THE ASSESSEE WAS NOT GIVEN PROPER OPPORTUNITY OF REBUTT AL AND DESPITE REPEATED ASSERTIONS THAT NO DONATION WAS PAID THE AO MERELY PRESUMED THAT SOME PAYMENT WAS MADE BY THE ASSESSEE, PRESUMABLY ON THE STRENGTH OF THE THREE DOCUMENTS I.E. PAGES 29 TO 31 OF THE PAPER BOOK, WH ICH, IN THE OPINION OF THE ASSESSEE, ARE DUMB DOCUMENTS WHICH DO NOT BEAR TH E SIGNATURE OF THE ASSESSEE. THE LEARNED CIT(A), HOWEVER, AFFIRMED THE ACTION OF THE AO. THE DETAILED ORDER PASSED BY HIM ON 19.01.2011, IS BEIN G CHALLENGED THROUGH THE PRESENT APPEAL FILED BY THE ASSESSEE BEFORE THE TRIBUNAL. 7. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT REOPENING OF THE ASSESSMENT BY ISSUING NOTICE UNDER SECTION 148 OF T HE ACT IS BAD IN LAW SINCE SPECIFIC PROVISIONS IN THE ACT OVERRIDE THE G ENERAL PROVISIONS. IN OTHER WORDS, ENTRIES HAVING BEEN MADE IN THE DIARIES MAIN TAINED BY D.Y. PATIL GROUP WHEREIN SEARCH PROCEEDINGS WERE INITIATED, TH E ACT PRESCRIBES REOPENING OF ASSESSMENT IN THE CASE OF RELATED PART IES ONLY UNDER SECTION 153C OF THE ACT, WHICH IS INTRODUCED IN THE STATUTE BY FINANCE ACT, 2005 WITH RETROSPECTIVE EFFECT FROM 01.06.2003. IN RESPO NSE TO LEARNED D.R.S OBJECTION THAT IT DOES NOT APPLY TO A.Y. 2001-02, T HE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SEARCH PROCEEDINGS BEIN G CONDUCTED IN JULY, 2005 THE PROCEDURES REFERRED TO IN SECTION 153C DES ERVES TO BE APPLIED WHEREBY THE AO OUGHT TO HAVE INITIATED THE PROCEEDI NGS IN THE CASE OF THE ASSESSEE. SINCE THE AO ISSUED NOTICE UNDER SECTION 148 OF THE ACT INSTEAD OF INVOKING PROVISIONS OF SECTION 153C, THE PROCEEDING S STAND VITIATED. WHEN IT WAS POINTED OUT THAT SECTION 153C IS NOT APPLICABLE IN THE INSTANT CASE BECAUSE THE DOCUMENTS/BOOKS OF ACCOUNT SEIZED DO NO T BELONG TO THE ASSESSEE, THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT SERIOUSLY PRESS HIS CONTENTION BUT RAISED AN ALTERNATIVE PLEA THAT EVEN FOR INITIATION OF PROCEEDINGS UNDER SECTION 148 OF THE ACT THE AO IS DUTY BOUND TO RECORD REASONS WHEREAS IN THE INSTANT CASE THE AO APPEARS TO HAVE MERELY ACTED UPON THE SATISFACTION REACHED BY THE ADDL. CIT, RAN GE 26(1), MUMBAI AND HAS NOT APPLIED HIS MIND INDEPENDENTLY AND IN SUPPO RT OF THE SAID PLEA THE LEARNED COUNSEL ADVERTED OUR ATTENTION TO PAGE 35 O F THE PAPER BOOK. HE ITA NO. 2181/MUM/2011 SHRI VINAY KUMAR 5 SUBMITTED THAT THERE IS NO OTHER MATERIAL TO INDICA TE THAT THE AO HAS INDEPENDENTLY APPLIED HIS MIND. HOWEVER, AS COULD B E NOTICED FROM PAGE 38 OF THE PAPER BOOK THE AO HAS FURNISHED REASONS FOR REOPENING OF THE ASSESSMENT WHICH WOULD CLEARLY SHOW THAT HE HAS IND EPENDENTLY ARRIVED AT A PRIMA FACIE CONCLUSION/BELIEF THAT INCOME CHARGEABL E TO TAX HAS ESCAPED ASSESSMENT AND, THEREFORE, THERE WAS A NEED FOR REO PENING OF ASSESSMENT. UNDER THESE CIRCUMSTANCES THE LEARNED COUNSEL FOR T HE ASSESSEE DID NOT SERIOUSLY PURSUED HIS CONTENTION WITH REGARD TO VAL IDITY OF REOPENING OF ASSESSMENT BUT CONFINED TO THE MERITS OF THE ADDITI ON BY SUBMITTING THAT THE ASSESSEE HAD CONSISTENTLY TAKEN A STAND BEFORE THE AO THAT ONLY A SUM OF ` 1,92,000/- WAS PAID BY CHEQUE. IT IS NOT KNOWN AS T O WHY A SUM OF ` 5,83,000/- SHOWN TO HAVE BEEN RECORDED IN THE DIARY MAINTAINED BY THE ACCOUNTANT OF RAMRAO ADIK INSTITUTE OF TECHNOLOGY I S SOUGHT TO BE ADDED IN THE HANDS OF THE ASSESSEE. THE AO REFUSED TO FURNIS H THE DETAILS EXCEPT THE THREE DOCUMENTS WHICH ONLY REFERS TO CERTAIN FIGURE S AND THERE IS NOTHING IN THE HANDWRITING OF THE ASSESSEE SO AS TO INDICATE T HAT THE ASSESSEE HAS PAID A SUM OF ` 5,83,000/- AS DONATION. IT WAS ALSO SUBMITTED THAT NO PAPER WAS FOUND IN THE HANDWRITING OF THE ASSESSEE AT ANY STA GE OF THE PROCEEDINGS TO INDICATE THAT OVER AND ABOVE A SUM OF ` 1,92,000/- THE ASSESSEE PAID SOME AMOUNT TO THE COLLEGE IN THE FORM OF DONATION. HE H AS ALSO ADVERTED OUR ATTENTION TO THE ASSESSMENT ORDER TO INDICATE THAT D.Y. PATIL GROUP APPROACHED THE SETTLEMENT COMMISSION BY ACCEPTING T HE RECEIPTS, PRESUMABLY AS UNDISCLOSED INCOME, AND HENCE IT CANN OT BE ASSUMED THAT THE ASSESSEE HAS MADE THE PAYMENT MERELY BECAUSE A THIRD PARTY HAS RECORDED SOMETHING IN THE DIARY MAINTAINED BY THEM. HE STRONGLY CONTENDED THAT THE ASSESSEE CANNOT BE ASKED TO PROVE A NEGATI VE FACT. IT WAS CONTENDED THAT THE ASSESSEE HAS NEVER PAID DONATION. IT WAS F URTHER CONTENDED THAT THE ASSESSEE WAS NEVER GIVEN AN OPPORTUNITY EITHER TO E XAMINE THE PARTY WHO HAS MADE SUCH STATEMENT OR WHOSE BOOK CONTAIN CERTA IN ENTRIES AND HENCE MERELY ON THE STRENGTH OF THE THREE PAPERS, WHICH C AN AT BEST BE CONSIDERED AS DUMB DOCUMENTS, ADDITION CANNOT BE MADE. THE LEA RNED COUNSEL FOR THE ASSESSEE ALSO PLACED RELIANCE UPON THE DECISION OF THE APEX COURT IN THE CASE OF KISHINCHAND CHELLARAM VS. CIT 125 ITR 713 W HEREIN THE COURT ITA NO. 2181/MUM/2011 SHRI VINAY KUMAR 6 OBSERVED THAT WITHOUT GIVING THE ASSESSEE AN OPPORT UNITY TO CONTROVERT THE MATERIAL ON WHICH THE ADDITION WAS MADE IT IS NOT P ROPER TO CONCLUDE THAT THE ASSESSEE HAS INCURRED EXPENDITURE FROM UNDISCLO SED SOURCES AND, THEREFORE, IT IS NOT ASSESSABLE UNDER SECTION 69C O F THE ACT. HE ALSO RELIED UPON THE FOLLOWING DECISIONS TO SUBMIT THAT WITHOUT ANY VALID EVIDENCE TO PROVE THAT THE ASSESSEE HAS MADE THE PAYMENT NO INF ERENCE CAN BE DRAWN BASED ON THE SEIZED MATERIAL OF THE THIRD PARTY: - I. ACIT VS. SHRI MAHENDRA M. CHORDIA ITA NO. 319/MUM/2 005 DATED 11.11.2008 II. KIRTI CHANDULAL OSWAL VS. DCIT 123 ITD 325 (PUNE) III. DCIT VS. NAHAR SPINNING MILLS LTD. 8 SOT 6 (CHD)BAB COCK POWER (OVERSEAS PROJECTS) LTD. VS. DCIT ITA NOS. 1388 & 1 389/DEL/1993 DATED 28.01.2003 IV. HEIRS AND LEGAL REPRESENTATIVES OF LATE LAXMANBHAI S. PATEL VS. CIT 327 ITR 290 (GUJ) 8. ON THE OTHER HAND, THE LEARNED D.R. RELIED UPON THE ORDERS PASSED BY THE TAX AUTHORITIES. THE BENCH WANTED TO SEEK SOME CLARIFICATIONS WITH REGARD TO CERTAIN FACTS WHICH ARE SUPPOSED TO BE WI THIN THE KNOWLEDGE OF THE AO ON WHOSE BEHALF THE LEARNED D.R. IS APPEARING. T HE LEARNED D.R. COULD NOT FURNISH THE CONTENTS OF THE ASSESSMENT MADE IN THE CASE OF D.Y. PATIL GROUP OR THE REASONS RECORDED IN THE SETTLEMENT COM MISSIONS ORDER. IT IS NOT KNOWN AS TO WHETHER THE D.Y. PATIL GROUP HAS AC CEPTED THE CASH ENTRIES AS UNEXPLAINED INCOME IN THEIR HANDS OR CLAIMED IT AS DONATIONS RECEIVED FROM STUDENTS. THE LEARNED D.R. WAS BLISSFULLY UNAW ARE OF THE NUMBER OF STUDENTS FROM WHOM THE D.Y. PATIL GROUP WAS SUPPOSE D TO HAVE COLLECTED DONATIONS AND IF THE AMOUNT IS COLLECTED FROM MORE THAN ONE STUDENT WHAT WAS THE STATUS IN OTHER CASES. NO MATERIAL, WHATSOE VER, COULD BE PLACED BEFORE US TO INDICATE THAT IN THE CASE OF EDUCATION AL INSTITUTIONS IT IS A STANDARD PRACTICE TO COLLECT DONATIONS AND IN FACT DONATIONS WERE COLLECTED FROM SEVERAL PARTIES AND SOME OF THEM HAVE ACCEPTED THAT THEY HAVE MADE THE PAYMENT AND IN RESPECT OF OTHERS PROCEEDINGS WE RE INITIATED BY THE ASSESSING OFFICERS CONCERNED. IT IS ALSO NOT KNOWN AS TO WHAT THE FEE STRUCTURE WAS IN THE RELEVANT YEARS AND WHAT WAS TH E STANDARD DONATIONS COLLECTED. OTHER THAN WHAT IS STATED IN THE ORDERS OF AO AND CIT(A) THE ITA NO. 2181/MUM/2011 SHRI VINAY KUMAR 7 LEARNED D.R. COULD NOT FURNISH ANY OTHER MATERIAL B EFORE US TO PROVE THAT PREPONDERANCE OF PROBABILITIES ARE IN FAVOUR OF ASS UMING THAT THE ASSESSEE ALSO MIGHT HAVE PAID DONATION FOR HIS SONS ADMISSI ON. IT IS ALSO STRANGE TO NOTE THAT A SUM OF ` 5,83,000/- WAS RECORDED IN THE DIARY MAINTAINED BY THE INSTITUTE AS CASH RECEIVED WHICH IMPLIES THAT CHEQU E PAYMENT, WHICH IS OFFICIALLY COLLECTED, WAS RECORDED IN THE REGULAR B OOKS OF ACCOUNT AND THERE CANNOT BE ANY DISPUTE ON THAT FACT. THUS, THE EXPLA NATION OF THE ASSESSEE WITH REGARD TO ` 1,92,000/- (I.E. PAID BY HIM THROUGH CHEQUE) WOULD NOT BE OF ANY HELP TO JUSTIFY THE REDUCTION OF ADDITION FROM ` 5,83,000/- TO ` 3,91,000/- . THIS ALSO SHOWS THE LACKLUSTRE ATTITUDE OF THE AO A ND THE ROUTINE MANNER IN WHICH ADDITION WAS MADE BY THE AO, WHICH WAS ROUTIN ELY APPROVED BY THE CIT(A). THE ASSESSEE CONSISTENTLY PLEADED BEFORE TH E TAX AUTHORITIES THAT NO MATERIAL WAS PLACED BEFORE HIM AND NO OPPORTUNITY W AS GIVEN TO HIM TO CONTROVERT THE MATERIAL COLLECTED BY THE AO, WHICH WAS THE BASIS FOR MAKING THE ADDITION. EVEN OTHERWISE THE ASSESSEE CANNOT HA VE ANY KNOWLEDGE ABOUT THE ACTIVITIES OF THE INSTITUTE WHERE HIS SON IS ON E OF THE STUDENTS WHEREAS THE AO WOULD HAVE COLLECTED THE ENTIRE MATERIAL BY VIRTUE OF THE SEARCH CONDUCTED IN THE CASE OF D.Y. PATIL GROUP AND IT CO ULD HAVE EASILY BEEN SHOWN AS TO ON WHAT BASIS HE HAS COME TO THE CONCLU SION THAT THE ASSESSEE IS ALSO ONE OF THE PARTIES WHO HAVE MADE THE PAYMEN T IN CASH IN THE FORM OF DONATION. IN THE ABSENCE OF ANY MATERIAL PLACED BEF ORE US BY THE LEARNED D.R. WE HAVE NO OTHER ALTERNATIVE EXCEPT TO COME TO THE CONCLUSION THAT THERE IS NO BASIS FOR MAKING THE IMPUGNED ADDITION AND WE HOLD ACCORDINGLY. NEEDLESS TO OBSERVE THAT THE REVENUE IS NOT VIGILAN T IN PURSUING THEIR APPEAL AS OTHERWISE THEY WOULD HAVE PREPARED A LIST OF ALL THE CASES WHEREIN SIMILAR ADDITIONS WERE MADE AND WOULD HAVE BROUGHT TO OUR N OTICE THE NUMBER OF CASES WHEREIN SIMILAR ADDITIONS WERE MADE AND SUSTA INED AND WHETHER THERE IS ANY CASE WHERE A PARTICULAR STUDENT ADMITTED TO HAVE PAID DONATION IN CASH AND MANY RELATED FACTS WOULD HAVE BROUGHT TO T HE KNOWLEDGE OF THE BENCH TO SHOW THAT THE PREPONDERANCE OF PROBABILITI ES ARE IN FAVOUR OF HOLDING THAT THE ASSESSEE ALSO MIGHT HAVE PAID DONA TION FOR ADMISSION OF HIS SON IN THE COLLEGE. IN THE ABSENCE OF ANY EFFORTS M ADE BY THE REVENUE IT MAY NOT BE PROPER FOR US, AFTER LONG LAPSE OF TIME (AFT ER ABOUT 13 YEARS FROM THE ITA NO. 2181/MUM/2011 SHRI VINAY KUMAR 8 END OF THE ASSESSMENT YEAR), TO SEND BACK THE MATTE R FOR FURTHER INVESTIGATION AS IT WOULD AMOUNT TO PAYING PREMIUM BY THE ASSESSEE FOR LETHARGY OF THE REVENUE. IN THE LIGHT OF THE ABOVE DISCUSSION WE HOLD THAT THE ADDITION MADE BY HE AO HAS NO LEGS TO STAND THOUGH THERE IS A VALID BASIS FOR REOPENING OF ASSESSMENT. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEBRUARY, 2014. SD/- SD/- (N.K. BILLAIYA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 21 ST FEBRUARY, 2014 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 28, MUMBAI 4. THE CIT 26, MUMBAI CITY 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.