M/s Gian Sagar Educational & Charitable Trust, New Delhi V. DCIT, New Delhi

ITA 2290/DEL/2016

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8360 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 26-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Charitable institution; Cancellation of registration; Set aside
• Section: 12; 11; 143(3); 80G; 12A; 12AA; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘F’ : NEW DELHI) BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER and SHRI AMIT SHUKLA, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA No.2290 /Del./2016 (ASSESSMENT YEAR : 2011-12) M/s. Gian Sagar Educational & Charitable Trust, vs. DCIT, SCO 109 – 110, Sector 43B, Central Circle 4, Chandigarh. New Delhi. (PAN : AAATG5827B) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Ravipratap Mall, Advocate REVENUE BY : Shri T. Kipgen, CIT DR Date of Hearing : 23.02.2022 Date of Order : 23.02.2022 O R D E R PER AMIT SHUKLA, JM : The aforesaid appeal has been filed by the assessee against the impugned order dated 22.01.2016 passed by the ld. CIT(A)-30, New Delhi for the quantum of assessment passed under section 143(3) of the Income-tax Act, 1961 (for short ‘the Act’) for the assessment year 2011-12. 2. In the grounds of appeal, the assessee has raised the following grounds :- “1. That on the facts and circumstances of the case and in law, order passed by the assessing officer under section 143(3) of the Income Tax 2 ITA No.2290/Del/2016 Act, 1961 ("the Act") for assessment year 20 I 1-12. is illegal and bad in law. 2. That the Commissioner of Income-tax (Appeals) erred on facts and in law in affirming the action or the assessing officer in making addition of Rs.2,00,00,000 as "income earned from undisclosed sources". 3. That the Commissioner of Income-tax (Appeals) erred on facts and in law in not appreciating that addition made by the assessing officer was purely based on surmises and conjectures and there was no corroborative evidence in support of the same. 4. That the Commissioner of Income-tax (Appeals) erred on facts and in law in merely relying on the report of DDIT (Inv) to hold that the appellant was engaged in giving alleged bribe of Rs.2,00,00,000 to the erstwhile president of Medical Council of India. 5. That the Commissioner of Income-tax (Appeals) erred on facts and in law in holding that the alleged cash seized purportedly from the possession of Sh. J.P. Singh belonged to the appellant. 6. That the Commissioner of Income-tax (Appeals) failed to appreciate that no incriminating material / evidence was found from the premises/ possession of the appellant and therefore, there was no warrant to make any addition. 7. That the Commissioner of Income-tax (Appeals) failed to appreciate that giving bribe is mere an allegation for which the matter is sub-judice and moreover, considering the merits of the case, the Hon’ble Apex Court has already granted stay for further trial in the case.” 3. The facts in brief are that the assessee is a charitable trust established in the year 2003 which is running medical colleges and educational institutions. It is also running a hospital at Banur, Punjab. Since the objects of the assessee trust was charitable within the meaning of section 2(15) of the Act, the assessee trust was granted registration u/s 12AA of the Act on 02.04.2005 by the competent CIT. It was also granted approval u/s 80G vide order dated 07.05.2007 by CIT, Chandigarh. For the year under consideration, the assessee has filed return of income on 29.09.2011 declaring nil income after 3 ITA No.2290/Del/2016 claiming exemption u/ss 11/12 of the Act. Assessing Officer has noted the following facts in his order:- “4. The Deputy Director of Income Tax(Investigation), Patiala while conducting inquiries pursuant to a search and seizure action conducted on M/s PACL Group of Companies has mentioned the fact of issuance of summons by CBI to one Sh. Nirmal Singh Bhangoo, Director of M/s. PACL Group, whose family members constitute major chunk of the governing council of the trust. The summons were issued owing to the arrest of one Mr. Paul an assistant working with M/s PACL India Ltd., who was nabbed while trying to pay a bribe of Rs.2 crore to Sh. Ketan Desai, the then Chief of Medical Council of India, in order to grant permission to Gian Sagar Medical College at Patiala for inducting a fresh batch of students for academic session 2010-11 without having the requisite infrastructure. Furthermore, prior to the issuance of notice to Sh. N.S. Bhangoo. it is learnt that the CBI has filed charge sheet against Dr. Kamaljeet Singh, Chief Executive Officer of Gian Sagar Medical College and Hospital who was arrested by CBI team on his official duty on 22.04.2010 owing to the allegations of having delivered an amount of Rs. 2 crore to one Mr. J.P. Singh, a middle man at his residence to be handed over subsequently as illegal gratification to Dr. Ketan Desai. Also on the same date, Dr. Sukhwinder Singh, Vice Chairman of Gian Sagar Educational & Charitable Trust was arrested at Chandigarh and was charge sheeted too. The assessee was also directed to produce copy of the charge sheet filed by the CBI before the special CBI judge.” 4. Before the AO, the assessee has clarified that no discrepancy as such was found nor could be established that Rs.2 crores were paid by the institute through any alleged middleman Sri R.P. Singh to Dr. Ketan Desai, the then Chairman of Medical Council of India (MCI). Relevant extract of such reply is reproduced hereunder :- “We further wish to highlight that time and again, it has been mentioned that there is an allegation of delivery of Rs.2.00 crore by the trust through one middleman Mr. JP, Singh to Mr. Ketan Desai who was chairman of Medical Council of India. In this regard, it is submitted that it is merely an allegation for which the matter is subjudice and moreover considering the merits of the case, the Supreme Court has already granted stay for further trial in this case 4 ITA No.2290/Del/2016 (copy enclosed). We further wise to submit that the trust is having one of the best infrastructure and medical facilities in India which is spread over a vast area of 79 acres in the state of Punjab where trust is having complete range of latest diagnostic, medical and surgical facilities and over 30 specialties and more than 200 consultants work round the clock. The MCI team which came for the inspection of the auditorium (which minor even not statutorily required as per the MCI guidelines) actually pointed out some minor deficiencies of routine nature which could never have been a reason for not giving the permission to the medical college for its further continuance, Furthermore, after the allegation, the CBI team visited the premises of the trust several times, inspected its accounts and infrastructure which was video graphed also and then found no discrepancy and rather mentioned the institution having world class infrastructure and also could not found any deficiency in the books of accounts for the transaction of Rs. 2 crores which were never paid by the institution nor there was any evidence of such kind of transaction in its books of accounts. The team gave a clean chit to the trust for the same and we wish to highlight that the permission to continue was already granted to the medical college even before the happening of this incident of allegation of delivery of Rs.2 crore by the trust. Hence, it is an established fact that the trust never indulged in such kind of unethical activities and no money as allegedly supposed to be bribe was paid by Dr. Sukhwinder Singh, Vice Chairman of the trust to get any undue favour which was never required as the trust was having all the facilities more than what were required as per the guidelines of the Medical Council of India. Hence, the trust was granted permission purely on the basis of merits of the case and the CBI graft case has nothing to do with the trust.” 5. Assessing Officer has referred to the charge-sheet filed by the CBI that Rs.2 crores bribery was paid by the medical college to Dr. Ketan Desai, the then Chairman of MCI for seeking recognition of the college. In response, the assessee has given a detailed clarification. The relevant extract of which is as under:- “As per the charge sheet there is an allegation of delivery of Rs.2 crore by the trust through one middlemen Mr. J.P. Singh to Mr. Ketan Desai who was Chairman of Medical Council of India. In this regard, it is submitted that it is merely an allegation for which the matter is subjudice and moreover considering the merits of the case, the Supreme Court has already granted stay for further trial in this case. 5 ITA No.2290/Del/2016 We further wish to submit that the trust is having one of the best infrastructure and medical facilities in India which is spread over a vast area of 79 acres in the state of Punjab where trust is having complete range of latest diagnostic, medical and surgical facilities and over 30 specialties and more than 200 consultants work round the clock. The Me] team which came for the inspection of the auditorium (which minor even not statutorily required as per the MCI guidelines) actually pointed out some minor deficiencies of routine nature which could never have been a reason for not giving the permission to the medical college for its further continuance. Furthermore, after the allegation, the CEI team visited the premises of the trust several times, inspected its accounts and infrastructure which was video graphed also and then found no discrepancy and rather mentioned the institution having world class infrastructure and also could not found any deficiency in the books of accounts for the transaction of Rs. 2 crores which were never paid by the institution nor there \Vas any evidence of such kind of transaction in its books of accounts. The team gave a clean chit to the trust for the same and we wish to highlight that the permission to continue was already granted to the medical college even before the happening of this incident of allegation of delivery of Rs. 2 crore by the trust. Hence, it is an established fact that the trust never indulged in such kind of unethical activities and no money as allegedly supposed to be bribe was paid by Dr. Sukhwinder Singh, Vice Chairman of the trust to get any undue favour which was never required as the trust was having all the facilities more than what were required as per the guidelines of the Medical Council of India. Hence, the trust was granted permission purely on the basis of merits of the case and the CBI graft case has nothing to do with the trust. We further wish to highlight that as per the provisions of section 69A of the Act, so far as unexplained money is concerned the sine qua lion is 'ownership'. The word 'is found to be the owner' appearing the section clearly shows that the mere fact that, on a search, certain articles are found in the possession of a person cannot be said to attract the provisions of this section unless it is established that the person in whose possession articles were found is the owner thereof. An assessee is to be the owner before anything in his possession can be deemed to be his income. It cannot be said in the case of stolen property that the thief is the owner thereof. Section 69A was enacted to treat the value of certain items as deeming provision but facts must be found to bring a case within that deeming provision and in the case of the assessee, where the cash alleged to be delivered was never found to be in the possession of the assessee but only in the possession of one Mr. JP. Singh who is not at all connected with the assessee and same facts have been clearly mentioned in the charge sheet and also 6 ITA No.2290/Del/2016 the assessee's contention is further strengthened when CBI Trial Court acquitted, Mr. K.A. Paul in this case and also the aggrieved party negating all the allegations went to the Supreme Court which on the finding of the merits and facts of the case stayed the proceedings which is the present status in the said case. Hence, the presumption of the ownership of the cash belonging to the assessee is purely on surmises, conjectures and without any basis and as such the provisions of section 69A are not at all applicable to the assessee even legally.” 6. However, AO held that since there was a charge-sheet under section 173 of Criminal Procedure Code filed by the CBI against Ketan Desai and others which clearly reveals that the case was made on the allegation that Ketan Desai was entered into criminal conspiracy with Shri J.P. Singh, the middleman in whose possession the cash was found for granting favours for recognition of courses and grant of permission to induct students for the FY 2010-11. He also referred to certain observation in the charge-sheet of CBI placing reliance on mobile phones under telephonic surveillance and also incorporated the excerpts of the conversations between them. Solely, relying on the telephonic conversations and charge-sheet of the CBI, Assessing Officer has held that Rs.2 crores have to be treated as income from undisclosed sources on substantive basis in the hands of assessee trust. His main allegation was that Shri J.P. Singh was in possession of the amount of Rs.2 crores being the middleman to handover the bribery to the concerned person. Relevant observation of the Assessing Officer in para 10 reads as under :- “10. The sequence of events as narrated supra gets duly supported by the intercepted conversations effected between Dr. Desai and the middleman, which makes it amply clear that Dr. Desai had entered into a criminal conspiracy with Sn. J.P. Singh, the middleman and Sh. Sukhwinder Singh for the grant of permission to Gian Sagar Medical College. Patiala qua the admission of students for 2010-11 for diff rent courses in complete violation of the infrastructural norms and other eligibility condition as stipulated by MCI. The generosity of Dr. Desai was facilitated for a quid pro quo consideration of Rs. 2 crore, which 7 ITA No.2290/Del/2016 the assessee had agreed to pay with the active connivance of Sh. J.P. Singh. In the circumstances, the plea of the assessee that it is merely an allegation and that the matter is subjudice does not hold water as the indulgence of the assessee trust in nefarious activities and desire to flout rules and norms have been exposed by virtue of the bribery scandal. Flouting of norms and involvement in a corruption case will certainly cast a shadow on the genuineness of activities purportedly carried on by the trust. 11. Further, the facts of the judgment sought to be relied upon by the ld. AR of the assessee trust are quite distinguishable from the facts of the present case under consideration. In view of the above findings, I am making an addition of Rs.2, 00,00,000/- by treating the same as income earned from undisclosed sources on substantive basis in the hands of the assessee trust. The outcome of the criminal trial proceedings, which has been stayed by the Hon'ble Apex Court as contended by the assessee will not come to its aid as the oft stated plea of the assessee of having indulged in a philanthropic activity got squarely exposed in view of the bribery episode, which not only puts a question mark over the genuineness of its activities but also brings into ambit the sum of Rs. 2 crores; which is to be consequently taxed. It is pertinent to mention that the assessee trust has applied for the grant of exemption U/S 10(23C)(vi) & (via) of the Income Tax Act, 1961 for the A.Y. 2012-13 before the Ld. CCIT (Central), New Delhi. However, in view of the allegations of corruption and criminal misconduct leveled against the assessee a recommendation has been made to the Worthy CIT (Central)-III, New Delhi seeking cancellation of registration u/s 12AA of the Act alongwith withdrawal of exemption u/s 80G(5) of the Act. A show cause notice to this effect has already been issued by the office of the Worthy CIT(Central)-III, New Delhi.” 7. Ld. CIT (A) has confirmed the said additions in the following manner :- “4.4 I have carefully considered assessment order, written submissions, case law relied upon and oral arguments of Ld. AR. The objections/arguments of the appellant are discussed as under- (i) It has been submitted by the appellant that the permission was granted after second inspection by the team of MCl, which has occurred before 22.4.2010 i.e. the date on which CBI found cash of Rs, 2 crores from the possession of Shri J.P. Singh at his residence, in 8 ITA No.2290/Del/2016 Delhi and therefore, there is no relation/linkage between the MCI permission and the cash found from the possession of Shri J.P, Singh. (ii) The case laws relied upon by the appellant, are distinguishable and are not applicable to the facts of the appellant. (iii) From the sequence of events submitted by the appellant in the assessment proceedings, which have been reproduced by the A.O. in the assessment order dated 24.3.2014, clearly establishes:  The cash was found from the possession of Shri J.P. Singh, a middleman who was supposed to deliver the amount to Dr. Ketan Desai, President of Medical Council of India (MCI). Therefore, Shri J.P. Singh is merely a conduit for receiving the amount of cash, in order to deliver to Dr. Ketan Desai.  Dr. Kamaljeet Singh, CEO of Gian Sagar Medical College & Hospital, arranged the amount, to be delivered to Dr. Ketan Desai, President of MCI and therefore, Dr. Kamaljeet Singh, has made the arrangement of Rs. 2 crores, on behalf of the appellant to get the benefit by way of permission to the medical college and there cannot be any other motive/purpose to arrange this cash.  The telephonic conversation intercepted and submitted by the appellant in the assessment proceedings before the A.O., revolve around the permission required by the appellant from MCI and therefore, the beneficiary from MCI is none other than the appellant.  From the telephonic conversation, it is further clear that Dr. Ketan Desai has helped the appellant in getting MCI permission for the medical college. Therefore, the argument of the appellant that the permission was received prior to 22.4.2010, is not establishing anything, as the appellant got the benefit by getting permission from the MCI at the instance of Dr. Ketan Desai, as President of MCI.  For the above facts, the appellant has not brought on record any contrary evidence, which could prove otherwise. CONCLUSION: In view of the above and in the facts and circumstances of the case, the arguments of the appellant, are not acceptable, as same are 9 ITA No.2290/Del/2016 not substantiated. Therefore, I hold that the cash of Rs. 2 crores, found in the possession of Shri J.P. Singh, belongs to the appellant, who has arranged the same from undisclosed sources, in order to get the benefit from Dr. Ketan Desai, erstwhile President of MCI. Accordingly, I do not find any infirmity in the findings of the A.O. in the assessment order.” 8. Before us, ld. counsel for the assessee submitted a chronology and chart of events of the entire sequence which for the sake of ready reference and proper appreciation of facts is reproduced hereunder :- Year 2007 : That the appellant established Gian Sagar Medical College and Hospital as per the minimum standard requirement for medical college for 100 admissions annually. October-November 2009 : Gian Sagar Medical College and Hospital applied for 3rd renewal to Medical Council of India (MCI) for permission into 4 th year MBBS Course in accordance with Regulations of 1999. 11/12.01.2010 : The first inspection of Gian Sagar Medical College and Hospital was conducted in accordance with MCI Act and Regulations, and at the time of inspection as many as 14 deficiency including the deficiency of non availability of Auditorium cum examination hall with the seating capacity of 500 students were pointed out 05.02.2010 :On the basis of the aforesaid inspection report, the permission for approval for 4 th year MBBS Course was declined. 27.02.2010: The Gian Sagar Medical College and Hospital submitted a compliance report by stating that all the deficiencies as pointed in the inspection have been removed. Further with regard to the deficiency of non availability of the auditorium, it was pointed out that the auditorium is under construction and will be 10 ITA No.2290/Del/2016 made available by the institution as per the phasewise requirement at the time of inspection of 4 th renewal. Alongwith the compliance report, the evidences with regard to the construction of the auditorium was also submitted (see page 76-79 of PB). 22.03.2010: In view of the compliance report submitted by the aforesaid institution, a further inspection was carried out, and it was reported that all the deficiencies as pointed out at the time of first inspection has been removed (see page 80-87of PB) 05.04.2010 : The executive committee of the MCI recommended for granting permission to the Gian Sagar Medical College and Hospital for admission in 4'h year MBBS Course in the said medical college. 22.04.2010: An FIR was lodged against Dr. Ketan Desai, President of MCI, Shri. J.P. Singh and Dr. Sukhwinder Singh. The Copy of the FIR has been placed at pages 155-163 of PB. It is relevant to state that after 2 days of filing FIR, CBI had conducted physical inspection und did the videography of the entire college which was submitted in the CBI court along with the report filed on 16.(l9.2011. In this videogrnphy all the deficiencies which were observed in the first inspection of MCI held on 11/12.01.2010 were found to be rectified. In this videography the auditorium is seen to be under construction. The CBI in its Chargcsheet filed in the CBI court had stated that the only deficiency found by them during the inspection conducted by cm was of the auditorium, 25.04.2010: After the lodging of the FIR, a letter was issued by the Ministry of Health & Family Welfare to constitute a three member fact finding team to inspect the medical college again to verity 11 ITA No.2290/Del/2016 whether the recommendations made by the MCI on 05.04.2010 were in order or not (see page 88 of PB). 26.04.2010: Accordingly, a 3 member committee of following members was constituted by the Ministry of Health, Government of India: i. Shri Keshav Desiraju, Additional Secretary. Ministry of Health and family Welfare (Chairman) ii. Dr. Rani Kumar, Dean, AIIMS, New Delhi iii. Prof. A K. Agrawal, Add. Director General Health Services, New Delhi The terms of reference of the committee was to examine the validity/correctness of the recommendation made by the MCI on 05.04.2010 recommending renewal of permission for the admission of 4 th batch of 100 MBBS students in Gian Sagar Medical College and Hospital, Patiala for the academic year 2010-11 (see page 89 of PB) 03.05.2010: The said committee had conducted the inspection on 29.04.2010 and submitted its report (see page 90-97 of PB) wherein it was conducted as under :- “In Conclusion, the inquiry committee is of the view that the recommendations made by the Executive Committee of the MCI at its meeting on 05.04.2010 to grant permission for admission of 100 students in the year 2010-11 for the fourth batch of MBBS Students at the Gian Sagar Medical College & Hospital, Patiala was justified on the basis of the report of the Council of Inspectors and the compliance report of the Principal. The observations made in the first report have been rectified. Further the existing facilities and faculty at Gian Sagar Medical College & 12 ITA No.2290/Del/2016 Hospital appear more than adequate to conduct undergraduate medical teaching. However, there is scope for improvement of clinical and laboratory services within the existing infrastructure.” 16/17.06.2010 : That on 15.05.2010 the MCI was superseded by issuing an amendment in the MCI act and replaced by Boards of Governors of 7 persons. As per this amendment the Board of Governor was to carry out the function as council. The Board of Governors had also conducted the inspection by team of 3 inspectors of the Gian Sagar Medical College & Hospital on 16/17.06.2010. In this report also it is stated that the auditorium is not available and is required at the time of admission of 5thbatch (see page 98-149 of PB). 12.07.2010: The Board of Governors had also after considering the said report decided to grant the permission to admit the 4thbatch of 100 MBBS students in said college for the academic year 2010- 11 and accordingly the permission letter was issued on 12.07.2010 (see page 150-151 of PB). 29.09.2011: The appellant filed its return of income declaring NIL income after claiming exemption u/s 11/12 of the Act. 29.03.2014: An assessment under section 143(3) of the Act was framed for the AY 2011-12, wherein on the allegation of alleged payment of illegal gratification of Rs. 2 Cr. to Dr. Ketan Desai, an addition was made by treating the same as income earned from undisclosed sources in the hands of the appellant trust. From the perusal of the order of assessment, it would be seen that addition has been made on the basis of the following observations: 13 ITA No.2290/Del/2016 i. Information from the DDIT (Inv), Patiala: That a search and seizure operation has been conducted on PACL group of companies, and it has been found that summons has been issued by CBI to Sh. Nirmal Singh Bhangoo, Director of PACL. The summons had been issued owing to the arrest of Mr. Paul, an assistant working with M/s PACL India Ltd. who was allegedly apprehended while trying to pay a bribe of Rs. 2 crores to Shri. Ketan Desai (see para 4 of order of assessment). ii. CBI has filed chargesheet against Dr. Kamaljeet Singh, CEO of Gian Sagar Medical College and hospital who was arrested by CBI on 22.04.2010 owing to alleged allegation of having delivered an amount of Rs. 2 crores to one Mr. J.P. Singh. On the same date, Dr. Sukhwinder Singh, Vice Chairman of Gian Sagar Educational and Charitable Trust was also arrested (see para 4 of order of assessment). iii. Charge sheet u/s 173 of Cr PC has been filed by the CBI wherein Dr. Ketan Desai, Dr. Sukhwinder Singh, Dr. Kamaljeet Singh, Shri. Jatinder Pal Singh, Shri. K.A. Paul and Sh. Nirmal Singh Bhangoo has been arrayed as accused (see para 7 of order of assessment). iv. The charge sheet allege that a criminal conspiracy has been entered by Dr. Ketan Desai with Shri. Jatinder Pal Singh and Dr. Sukhwinder Singh and anr with an objective to grant undue favours qua the recognition of the courses and grant of permission to induct students in gross violation of infrastructural norms and other eligibility conditions as stipulated by MCI (see para 8-9 of order of assessment). 14 ITA No.2290/Del/2016 v. The telephonic conversations between Dr. Ketan Desai and Shri. J.P. Singh and Shri. JP Singh and Dr. Sukhwinder Singh (see para 9.1-9.2 of order of assessment). vi. That Dr. Kamaljeet Singh has collected an amount of Rs. 2 crores from Sh. K.A. Paul on 22.04.2010 and delivered the same to Sh. J.P. Singh at his residence which was recovered by the CBI (see para 9.3 of order of assessment). 22.01.2016: That the appellant filed an appeal against the aforesaid order of assessment, and learned CIT(A) dismissed the appeal of the appellant and upheld the order of assessment. 01.03.2016: That learned Pr. Commissioner of Income Tax vide an order dated 01.03.2016, withdrew the registration granted to the appellant u/s 12AA of the Act. That while withdrawing the registration, the allegation made in the order was as under: “2. During the course of enquiry conducted by DDIT (Inv), Chandigarh in the case of M/s PACL group of cases on 22.03.2010, it is observed that CBI issued summon to Sh. Nirmal Singh Bangoo, Director of M/s PACL in connection with the arrest of an employee of M/s PACL while trying to pay bribe of Rs. 2 crore to Dr. Ketan Desai, the then Chief of Medical Council of India. The same fact was mentioned in the appraisal report by the DDIT (Inv.). 6. Ld. PCIT while cancelling the registration has observed that; “it is established beyond doubt that the society has violated the provisions of section 2(15) of the IT Act, 1961 while carrying out its activity. The society has been established with sole intention of helping charitable and philanthropic venture of running a medical 15 ITA No.2290/Del/2016 college and thereby seeking to claim exemption on the income so generated u/s 11 & 12 of the Income Tax Act, 1961 notwithstanding the fact that its immoral activities and desire to defy rules and norms have been exposed by virtue of the bribery scandal. Such incidents cannot be classified as charitable by any reckoning. Such organizations who do not carry any charitable activity, cannot be granted registration. In these facts & circumstances, I am satisfied that the activities of the trust are not genuine and not being carried out in accordance with the objects of the trust. Accordingly, after affording reasonable opportunity to the trust registration granted u/s 12A vide order dated 02.04.2005 to the assessee society is cancelled since inception.” 7. That against the aforesaid order of the Hon’ble Pr. Commissioner of Income Tax, assessee filed an appeal before the Hon’ble Tribunal and since the aforesaid order was passed without affording any opportunity, as such, Hon’ble Tribunal vide an order dated 03.01.2017, cancelled the aforesaid order, and set aside the same to the file of the Pr. CIT to decide the same a fresh. 27.10.2017 : In the set aside proceedings, the Hon’ble Pr. CIT again passed an order on 27.10.2017, wherein the registration granted u/s 12AA of the Act was cancelled since inception on the ground that appellant trust is allegedly involved in nefarious activities for inducting of fresh batch of students for academic session without requisite infrastructure. 12.02.2018 : The Hon’ble High Court of Delhi vide an order dated 12.02.2018, passed an order dropping the proceedings against 16 ITA No.2290/Del/2016 Shri. Ketan Desai till sanction is received either under Section 197 Cr.P.C. or Section 19 of the Prevention of Corruption Act, 1988 (see page 152-154 of PB). 18.08.2018: That order of the State of Gujarat declining sanction to prosecute Shri. Ketan Desai was shown to the Hon’ble Special Judge (PC Act), New Delhi and consequently, Shri. Ketan Desai was discharged by the Hon’ble Court. This fact proves that allegation against Shri. Ketan Desai that he has entered into criminal conspiracy has not been found sustainable. 03.09.2020 : That Hon’ble Tribunal after considering the complete factum of the case, allowed the appeal of the appellant, and registration granted to the appellant was restored. The relevant finding of the Hon’ble Tribunal are as under: “45. Hence , keeping in view the entire facts of the case, that there have been deficiencies in the infrastructure as found by the first report which were found to have been rectified by the second committee comprising o f Addl. Secretary, GoI Dean AIIMS, Addl . DG, DGHS, and keeping in view the fact that MCI has granted due permission for the academic session 2010-11, keeping in view the fact of non-sanction of prosecution of Sh. Ketan Desai, keeping in view the order of the Hon’ble High Court of Delhi , dropping the proceedings till sanction is received, keeping in view the submission o f the revenue that no prosecution is pending against the assessee as on now, keeping in view the aims & objects o f the trust are in consonance with the provisions of Section 2(15) o f the Act, keeping in view that there has been no violation of clause (ii) para 4 of the trust deed as alleged by 17 ITA No.2290/Del/2016 the ld. PCIT, we hereby hold that the order of the ld. PCIT dated 27.10 .2017 cancelling the registration since inception, u/s 12AA(3) of the Act is legally not valid. Before departing, we hereby clarify that, 1) The order of the ld. PCIT cancelling the registration since inception is hereby revoked. 2) The order has been passed in accordance with the provisions of the Income Tax Act, 1961 and shall not impact the outcome of any proceeding under any other Acts promulgated under Constitution of India.” 9. Thus, Ld. Counsel submitted that the entire addition made by the AO and ld. CIT (A) is based on unsubstantiated allegations without any evidence on record. He further submitted that entire allegation of CBI and Revenue proceeded on the assumption that for getting the permission for admission of students in fourth year without having any requisite infrastructure, Dr. Ketan Desai and Shri J.P. Singh are entered into a criminal conspiracy for granting favours by Dr. Sukhwinder Singh, Vice Chairman of the assessee trust for recognition of courses and grant of permission to induct students for AY 2010-11. Thus, he submitted that even at the time of first inspection on 11/12.01.2010 as many as 14 deficiencies was pointed out, however, on 27.02.2010 when the assessee trust submitted the compliance report, all the deficiencies as pointed out earlier were removed. Even after the allegation of alleged bribery, CBI team has visited the premises of the assessee trust several times, inspected its accounts and infrastructure which was also videographed and no discrepancy was found. Rather it was mentioned that the institution was having 18 ITA No.2290/Del/2016 world class infrastructure and there was no deficiency which was alleged initially that without any infrastructure, assessee trust seek permission for admission of students and alleged bribery was given. 10. He further submitted that after the lodging of the FIR, inspection of the medical college of the appellant trust was carried out thrice, one by CBI, second by Enquiry Committed constituted by Ministry of Health, Government of India and third by 3 inspectors sent by Board of Governors (as on account of an amendment in the MCI act and MCI was replaced by Boards of Governors), and on each occasion, no discrepancy was pointed out and on the contrary, it was found that medical college run by the appellant trust fulfill all the requirement for the grant of the approval. In such circumstances, any assumption that appellant trust is involved in the nefarious activities for inducting fresh batch of students for academic session without requisite infrastructure is wholly incorrect and factually misconceived. 11. He submitted that it is not the allegation that appellant trust is not carrying out the activities as stated in its objects. It is also not the allegation that activities of the trust are not genuine. The addition has been made on the ground that CBI Team has arrested Sh. Kamaljit Singh, CEO of M/s Gian Sagar Medical College & Hospital on the allegation that he has delivered an amount of Rs. 2 Cr to Sh. Ketan Desai, President of Executive Committee of MCI through middleman Mr. J.P. Singh and also on the same date Dr. Sukhwinder Singh, Vice Chairman of M/s Gian Sagar Medical College and Hospital was also charge-sheeted by the CBI. 12. Thereafter, he strongly placed reliance on the decision of the Tribunal in its own case in the proceedings u/s 12AA wherein all these 19 ITA No.2290/Del/2016 facts have been duly noted by the Tribunal in ITA No.6054/Del/2018 vide order dated 03.09.2020 and referred to various observations given in the ITAT order. 13. Apart from that, one important fact was brought before us is that in the case of Ketan Desai, Hon’ble Delhi High Court in Crl.MC 2773/2012 vide order dated 12.02.2018 had directed the CBI to drop entire proceedings against him under the Prevention of Corruption Act due to lack of requisite sanctions. This judgment of Hon’ble Delhi High Court demolishes the entire case of the AO. 14. Finally, he submitted that now in the case of alleged middleman, Hon’ble Delhi High Court in the case of J.P. Singh vs. CBI in Crl.MC 3118/2012 vide order dated 17.01.2022 has finally held that no direct or indirect evidence was found in the case of J.P. Singh and he was completely absolve and held that there was no offence found against him. Thus, this judgment of Hon’ble Delhi High Court clinches the issue in favour of the assessee that no such bribery of Rs.2 crores which has been added as undisclosed income payment through undisclosed sources can be made. 15. On the other hand, ld. DR strongly referred to the orders of AO and ld. CIT (A) and submitted that here in this case, there is clear cut observation of the CBI that the assessee has given bribery of Rs.2 crores to the middleman for handing over to Dr. Ketan Desai for getting recognition of courses and grant of permission to induct students. DECISION 16. We have heard the rival submissions and also perused the relevant finding given in the impugned orders as well as the material 20 ITA No.2290/Del/2016 placed before us. The entire basis for making the addition by the AO is the alleged charge-sheet of the CBI that assessee has paid Rs.2 crores through middleman, Shri J.P. Singh to one Ketan Desai, the then Chairman of MCI for getting recognition of courses and grant of permission to induct students in the fourth years despite the fact that Hospital/ Medical College did not had requisite infrastructure. No independent enquiry or investigation has been done by the AO rather he has simply relied upon the report of DIT handing over the charge- sheet of CBI. The relevant findings and the observations of the AO has already been incorporated above and also ld. CIT (A). However, he also relied upon the tele conversation that Ketan Desai has given permission for medical college. Post the order of ld. CIT (A), there is huge change in the entire complexion of the case, wherein the basis of allegation in the charge-sheet of CBI either in the case of Ketan Desai, allegedly the person who has received the bribery and in the case of J.P. Singh who was alleged to have acted as middleman and have the possession to Rs.2 crores to give the bribery, in as much as they have been exonerated by the High Court and have been found to be not involved at all and CBI’s charge sheet has been quashed. 17. First of all, as noted above and from the sequence of events, it is clear from the order of Hon’ble Delhi High Court, that these two persons have been exonerated and has also quashed the charge of CBI. We find that even prior to that, CBI in its enquiries and inspections never found any discrepancy or alleged non-existence of infrastructure which was the main basis that assessee without any requisite infrastructure was seeking permission from MCI for recognition of courses and grant of permission to induct the students. Albeit on inspection by the team of Doctors of 3 Member Committee 21 ITA No.2290/Del/2016 appointed by Ministry of Health and Family Welfare, they neither found any discrepancy nor any irregularity and rather it was found that assessee was having world-class infrastructure prior to seeking approval from the MCI. The Committee had examined the validity of recognition of courses and grant of admission to students and has given a positive report. 18. The Hon’ble Delhi High Court in the case of Ketan Desai (supra), has quashed the charge-sheet of the main person who has received bribery and ordered the CBI for dropping the proceedings against Ketan Desai. Thus, as on date, there is no charge or any allegation against Ketan Desai that he had received any bribery. On this ground alone, the entire premise of the AO gets defeated. 19. Further, we find that the coordinate Bench of the Tribunal in the case of the assessee in the context of 12AA proceedings have discussed this issue in detail including the sequence of events and also noted down various discrepancies and the report of the Committee. The relevant finding is appearing at paras 33 & 34 wherein the report of the Board of Directors of MCI and further approval has been incorporated and the order of Hon’ble Delhi High Court in the cases of Ketan Desai (supra). The Tribunal has also noted that ld. DR vide letter dated 27.08.2020 has categorically mentioned that after perusal of record, it is found that no prosecution has been pending against Ketan Desai. Finally, the Tribunal allowed the registration which was cancelled by the PCIT vide paras 44 & 45 of the order. 20. Now, finally in the latest judgment of Hon’ble Delhi High Court in the case of J.P. Singh (supra), the Hon’ble High Court has observed as under :- 22 ITA No.2290/Del/2016 CONCLUSION “74. The entire controversy has arisen out of an alleged bribery made for allowing the admissions into the 4th Batch of MBBS of the GSMCH, Patiala by bypassing the alleged deficiencies in the process. The Petitioner is accused of having acted as a middleman in the alleged bribery. However, no direct or indirect evidence implicating the petitioner is available on record that can be legally relied on to proceed with the matter. The evidence collected and produced by the investigation agency before the Court below is fraught with illegalities and no sufficient cause is made to proceed with the case qua the petitioner for the reasons as detailed hereunder: i) The main basis of the matter for which the bribe was allegedly given i.e., the auditorium was not actually required to be constructed as a condition precedent for conducting admissions of the 4th batch of MBBS course. The factum has been verified by the appropriate authorities at various stages as stated above, hence there is no rationale of committing the alleged offence of giving of bribe. ii) Further, the Approver on the basis of whose statement petitioner has been made an accused, was impleaded in the case without sanction from the appropriate authorities and his statement is thus inadmissible. iii) Nothing as alleged in the recorded conversation intercepted by the investigating agency forms direct basis or has any connection whatsoever with the need for bribery, nor is there any rationale for offering of the alleged bribe. The recovery made has also been explained and accounted for by the Petitioner with evidence as being a part of the advance received by the Petitioner in lieu of sale of his village land. 23 ITA No.2290/Del/2016 iv) Tape records of the calls intercepted in the instant case are not admissible since the due procedure for such interception as mandated by the Telegraph Act and the Rules framed thereunder has not been followed. Further, even the same has not been verified in the FSL report. No further witness/evidence to implicate the petitioner is on record. v) Additionally, the public servant who is alleged to have been involved in the said transaction has already been discharged and cannot, therefore, be prosecuted under the PC Act. Thus, in an offence alleging conspiracy, where the main conspirator has been discharged and in the absence of evidence implicating the petitioner as a co-conspirator alleged to be a middle-man, there is no point in continuing with the case and keep the entire criminal justice machinery running endlessly especially in light of the fact that the criminal proceedings had been initiated ten years back and has stayed pending ever since. 75. It is also a settled law that when the allegations against an accused do not constitute an offence, even if such allegations are presumed to be true, a Court can exercise its powers under Section 482 of the Code to quash the impugned criminal proceedings. However, in doing so, the Court must not undertake a „mini-trial‟ or roving enquiry. 76. Judged by that standard, upon a perusal of the contentions raised as well as the record, specifically – the evidence, the chargesheet as well as the orders on charge, this Court is of the view that it is necessary to intervene by exercising the revisional and inherent jurisdiction vested in this Court to avoid travesty of justice and abuse of process of the court, because (a) The most relevant piece of evidence relied upon by the 24 ITA No.2290/Del/2016 prosecution, i.e., the copy of the voice-recording of the telephonic conversation allegedly involving the petitioner, is not even admissible in light of the judgment of the Hon‟ble Supreme Court in the case of Anvar P.V. (Supra), the same ratio was followed by this Court in its judgment dated 20 th November, 2014 in Ankur Chawla v. CBI, Crl. M. C. No. 2455/2012, and it was held that: “16. To test the correctness of the aforesaid observations of the Trial Court, it has to be kept in mind that any electronic record is admissible in evidence only when it is in accordance with the procedure prescribed under Section 65B of the Evidence Act, 1872....‖ *** 18. Since audio and video CDs in question are clearly inadmissible in evidence, therefore, Trial Court has erroneously relied upon them to conclude that a strong suspicion arises regarding petitioners criminally conspiring with co-accused to commit the offence in question. Thus, there is no material on the basis of which, it can be reasonable said that there is strong suspicion of the complicity of the petitioners in commission of the offence in question. In the considered opinion of this Court, a prime-facie case is not made out against petitioners and so they cannot be put on trial with the aid of Section 12 of the Prevention of Corruption Act or by resort to Section 120(B) of IPC.‖ b) The ratio decidendi of Anvar P.V. (Supra) pertaining to Section 65B of the Evidence Act, was recently reiterated by the Hon‟ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 (7) SCC 1. The Hon‟ble Supreme Court therein has held as under: 73.1. Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473: (2015) 1 SCC (Civ) 27: (2015) 1 SCC 25 ITA No.2290/Del/2016 (Cri) 24: (2015) 1 SCC (L&S) 108], as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178: (2015) 3 SCC (Cri) 54], being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801: (2018) 2 SCC 807: (2018) 2 SCC (Civ) 346: (2018) 2 SCC (Civ) 351: (2018) 1 SCC (Cri) 860: (2018) 1 SCC (Cri) 865] and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P. [Shafhi Mohd. v. State of H.P., (2018) 5 SCC 311: (2018) 2 SCC (Cri) 704], do not lay down the law correctly and are therefore overruled. 73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the ―computer‖ happens to be a part of a ―computer system‖ or ―computer network‖ and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] which reads as ―... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ...‖ is thus clarified; it is to be read without the words ―under Section 62 of the 26 ITA No.2290/Del/2016 Evidence Act,...‖. With this clarification, the law stated in para 24 of Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] does not need to be revisited.‖ 77. Even otherwise, the prosecution has till date not advanced anything qua the genuineness of the voice recording involving the petitioner. In the absence of a forensic analysis and report (or for that matter, any other certifying instrument) pertaining to the authenticity of the voice recording in question, it is not unreasonable to conclude that the prosecution’s case at trial would be materially impacted. In the case of Nilesh DinkarParadkar v. State of Maharashtra, 2011 (4) SCC 143, the Hon‟ble Supreme Court has held as follows: 31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification. 32 [Ed.: Para 32 corrected vide Official Corrigendum No. F.3/Ed.B.J./18/2011 dated 5-4-2011.]. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [(1976) 2 SCC 17] this Court made following observations: (SCC p. 26, para 19) 19. We think that the High Court was quite right in holding that the tape-records of speeches were 27 ITA No.2290/Del/2016 documents‘, as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions: (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.” 78. Apart from the aforesaid, in this case, the public servant who was said to be involved in the alleged transaction has already been discharged and is not being tried for any offence under the PC Act. That leaves only the private individual i.e., the petitioner/alleged middleman to face trial for charges under Section 12 of the PC Act, read with Section 120B of the IPC, and that too without any material in the charge-sheet that the Petitioner either instigated the public servant or entered into a conspiracy with the public servant and/or the bribe giver. As such, the facts and circumstances of the present case fall within the scope of the third category set out in Section 107 of the IPC. Therefore, permitting the trial to continue would be untenable in light of the judgment of the Hon‟ble Supreme Court in CBI v. V.C. Shukla, (1998) 3 SCC 410, which sim ilarly dealt with accused who had acted as middlemen, holding that: 47. Even if we are to accept the above contentions of Mr Altaf Ahmed the entries, (which are ―statements‖ as held by this Court in Bhogilal Chunilal [AIR 1959 28 ITA No.2290/Del/2016 SC 356: 1959 Supp (1) SCR 310] and hereinafter will be so referred to), being ―admissions‖ — and not ―confession‖ — cannot be used as against Shri Advani or Shri Shukla. However, as against the Jains the statements may be proved as admissions under Section 18 read with Section 21 of the Act provided, they relate to ―any fact in issue or relevant fact‖. Needless to say, what will be ―facts in issue‖ or ―relevant facts‖ in a criminal trial will depend upon, and will be delineated by, the nature of accusations made or charges levelled against the person indicted. In the two cases with which we are concerned in these appeals, the gravamen of the charges which were framed against the Jains in one of them (quoted earlier) and were to be framed in the other pursuant to the order of the trial court (quoted earlier) is that they entered into two separate agreements : one with Shri Shukla and the other with Shri Advani, in terms of which they were to make certain payments to them as a gratification other than legal remuneration as a motive or reward for getting their favour while they were ―public servants‖ and in pursuance of the said agreements payments were actually made to them. Thereby the Jains committed the offence of conspiracy under Section 120-B of the Penal Code, 1860; and under Section 12 of the Prevention of Corruption Act, 1988 (Prevention of Corruption Act for short), in that, they abetted the commission of offences under Section 7 of the Act by Shri Shukla and Shri Advani. *** 49. Thus said we may now turn our attention to Section 12 of the Prevention of Corruption Act. That section reads as under: 12. Punishment for abetment of offences defined in Section 7 or 11.—Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is 29 ITA No.2290/Del/2016 committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.‖ 50. Undoubtedly for a person to be guilty thereunder it is not necessary that the offences mentioned therein 310 should have been committed pursuant to the abetment. Since ―abetment‖ has not been defined under the Prevention of Corruption Act we may profitably refer to its exhaustive definition in Section 107 of the Penal Code, 1860. As per that section a person abets the doing of a thing when he does any of the acts mentioned in the following three clauses: (i) instigates any person to do that thing, or engages with one or more other person or persons in any conspiracy for the doing of that thing ..., or (ii) intentionally aids, by any act or illegal omission, the doing of that thing. So far as the first two clauses are concerned it is not necessary that the offence instigated should have been committed. For understanding the scope of the word ―aid‖ in the third clause it would be advantageous to see Explanation 2 in Section 107 IPC which reads thus: Explanation 2. —Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.‖ 30 ITA No.2290/Del/2016 It is thus clear that under the third clause that when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence. In other words, unlike the first two clauses the third clause applies to a case where the offence is committed. 51. Since in the instant case the prosecution intended to prove the abetment of the Jains by aiding (and not by any act falling under the first two clauses adverted to above) and since we have earlier found that no prima facie case has been made out against Shri Advani and Shri Shukla of their having committed the offence under Section 7 of the Prevention of Corruption Act, the question of the Jains' committing the offence under Section 12 — and, for that matter, their admission in respect thereof — does not arise. Incidentally, we may mention that the abetment by conspiracy would not also arise here in view of our earlier discussion. 79. That apart, this Court in Sanjeev Saxena v. State (NCT of Delhi), 2015 SCC Online Del 9564, has opined as follows: 16. It is an admitted case of prosecution that the trail of money is not established despite best efforts to find out its source. Trial court has also reached a conclusion in this regard that the efforts to trace money trail has failed and the principal offender who attempted to bribe BJP MPs could not be brought on record. Therefore, the only evidence against the petitioner is the audio/video recording showing him and one person in yellow shirt delivering rupees one crore to the three BJP MPs. However, in my opinion, this evidence in itself is insufficient to fulfill the requirement of Section 107 IPC so as to establish a prima facie case that the petitioner committed the 31 ITA No.2290/Del/2016 offence of abetment as specified under Section 12 of PC Act. 17. It is not the case of the prosecution that the petitioner engaged/conspired with persons other than the co-accused to commit the offence of conspiracy. Since, the co-accused persons have already been discharged and the trial court has already held that no evidence of conspiracy is made out even against the petitioner, under such circumstances, the offence of abetment by engaging in conspiracy is not prima facie established against the petitioner.” 80. Lastly, the charge-sheet against the petitioner is underpinned by the allegation of abetment under Section 12 of the PC Act without there being any admissible evidence of the demand or offer of bribe. Needless to state, such a trial would be an exercise in futility, more so because there are judicial precedents to the effect that a demand of illegal gratification is imperative for punishment (for abetment as an offence) under Section 12 of the PC Act. In fact, the judgment of the Hon'ble Supreme Court in State of Punjab v. Madan Mohan Lal Verma, (2013) 14 SCC 153, which reads as under, is applicable here:― 11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, 32 ITA No.2290/Del/2016 by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] , T. Subramanian v. State of T.N. [( 2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 :(2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136].)‖ 81. Therefore, in light of the facts of the case along with the material on record, and since there is no substance in the accusation levelled nor any admissible evidence is on record incriminating the petitioner, the petitioner is entitled to relief under Section 482 of the Code. 82. In view of these facts and circumstances, as well as the provisions of law, their application to the case at hand and the analysis made, this Court is inclined to allow the instant 33 ITA No.2290/Del/2016 petition. 83. For the reasons recorded above, this Court allows the instant petition as prayed for. The impugned orders dated 1st June 2012 and 4 th June 2012 passed by Learned Special Judge, (CBI-05), New Delhi whereby charges have been framed qua the Petitioner, are hereby set aside.” 21. Accordingly, after detailed discussion and perusal of material on record, their Lordships has recorded that there is not substance in the accusation leveled nor any admissible evidence is on record incriminating J.P. Singh, therefore, leave was granted. 22. Thus, in view of the aforesaid judgments of Hon’ble Delhi High Court quashing the charge-sheet of CBI and finding that there was no such payment of bribery and in fact, amount of Rs.2 crores found from the possession of J.P. Singh belonging to him being the sale of agricultural land, thus Rs.2 crores found from the possession of J.P. Singh are explained and, therefore, there is no addition of Rs.2 crores as undisclosed income. Accordingly, addition of Rs.2 crores is deleted. 23. In result, the appeal filed by the assessee is allowed. Order was pronounced on 23 rd day of February, 2022. Sd/- sd/- (ANIL CHATURVEDI) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 23.02.2022 TS 34 ITA No.2290/Del/2016 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A)-30, New Delhi. 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.