DR HUSEINA DAWOODI, MUMBAI V. ITO 16(2)(4), MUMBAI

ITA 3145/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3290 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2001-2002
• Appeal Filed On: 05-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT KUMAR SINGH
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Unexplained expenditure
• Section: 147; 69; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.3145/2014 ASSESSMENT YEAR: 2001-02 DR. HUSEINA DAWOODI, 324, MAGBA APTS, WADIA COMPOUND, GRANT ROAD, MUMBAI 400 007 PAN: AAHPD 2590F VS. ITO-16(2)(4), MUMBAI - 400007 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SANJIV M. SHAH, A.R. REVENUE BY : SHRI AMIT KUMAR SINGH, D.R. DATE OF HEARING : 14.03.2016 DATE OF PRONOUNCEMENT : 16.03.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 14.02.2011 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2001-02. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: YOUR PETITIONER RESPECTFULLY BEGS TO SUBMIT: 1. THE LEARNED ITO HAS ERRED IN LAW AS WELL AS FACT OF THE CASE IN: A) PASSED ORDER U/S 144 RWS 147. B) ADDED INCOME OF RS.1800000/- C) LEVYING TAX AND INTEREST U/S 234 A AND B OF RS. 1268692/- 2. THAT THE FINDINGS OF THE LEARNED ITO ARE ERRONEO US AND ARE UTTER DISREGARD OF FACT AND CIRCUMSTANCES AND MATERIALS PRODUCED AND O N RECORD GIVEN SUBMISSION TO HON. CIT AND LEARNED ITO AS SUCH QUESTION OF ADDITI ON OF INCOME AND LEVYING TAX AND INTEREST U/S 234 A AND B OF RS.1268692/- DOES N OT ARISE. 3. THAT THE LEARNED I.T.O. FAILED TO CONSIDER THAT THE FEES WERE PAID FROM HIS FATHER'S NON RESIDENT ACCOUNT AS SUCH QUESTION OF P AYMENT OF CAPITATION FEES OR FACT THAT D. Y. PATIL GROUP FILED SETTLEMENT PETITION BE FORE THE SETTLEMENT COMMISSION ITA NO.3145/2014 DR. HUSEINA DAWOODI 2 AND NOT ACCEPTING HON CIT(A) 28 ORDER COPY IS NOT R ECEIVED AND ARRIVED ON CONCLUSION AS THE APPELLANT HAS CONCEALED PARTICULA RS CANNOT ARISE. 4. THAT THE LEARNED ITO OUGHT TO HAVE CONSIDERED AL L FACTS AND CIRCUMSTANCES AND ON PROPER APPRECIATION THEREOF AND EVIDENCE AND MATERI ALS ON RECORD AND SUBMISSION AND EXPLANATION GIVEN OUGHT TO HAVE:- A) NOT PASSED ORDER U/S 144 RWS 147. B) NOT ADDED INCOME OF RS. 1800000/-. C) NOT LEVIED TAX AND INTEREST U/S 234 A AND B OF RS.1 268692/- 5. THAT YOUR PETITIONER PRAY ACCORDINGLY AND CRAVES LEAVE TO ADD TO OR TO ALTER OR AMEND THE ABOVE GROUNDS OF APPEAL AS AND WHEN OCCAS IONS ARISES. 3. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AC TION UNDER SECTION 132 OF THE INCOME TAX ACT WAS CONDUCTED ON M/S D.Y. PATIL GROUP OF CONCERNS ON 20.07.2005 BY THE INVESTIGATION WING OF THE DEPARTM ENT AND IT WAS FOUND THAT THE ASSESSEE ALONG WITH MANY OTHER PERSONS HAVE GIV EN DONATION TO THE SAID EDUCATION SOCIETY FOR ADMISSION TO THE COURSES COND UCTED BY THE GROUP. THE NAME OF THE ASSESSEES SON SHRI SUNNY DAWOODI WAS F OUND IN THE LIST OF STUDENTS OF D.Y. PATIL GROUP OF COLLEGE AND IT WAS NOTED THAT A SUM OF RS.18,00,000/- WAS PAID AS DONATION/ CAPITATION FEE BY SMT. HUSEINA F. DAWOODI FOR ADMISSION OF HER SON IN MBBS COURSE IN THE SAID M/S RAMRAO ADIK EDUCATION SOCIETY. ON THE STRENGTH OF THE EVID ENCES COLLECTED BY THE INVESTIGATION WING AND INFORMATION PASSED ON TO THE ASSESSING OFFICER, A SATISFACTION WAS RECORDED AND THE CASE OF THE ASSES SEE WAS REOPENED UNDER SECTION 147 OF THE ACT. THE ASSESSEE EXPLAINED THA T SHE HAD NOT GIVEN ANY MONEY/CAPITATION TO THE INSTITUTION AS HAS BEEN ALL EGED BY THE DEPARTMENT. HOWEVER, THE ASSESSING OFFICER (HEREINAFTER REFERRE D TO AS THE AO) DID NOT AGREE WITH THE SUBMISSIONS OF THE ASSESSEE AND HELD THAT THE ASSESSEE HAD FAILED TO FURNISH EXPLANATION/SOURCE IN RELATION TO PAYMEN T OF RS.18 LAKHS FOR ADMISSION OF HER SON. HE ACCORDINGLY ASSESSED THE SAID AMOUNT IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED EXPENDITURE UNDER SECTI ON 69 OF THE ACT. BEING AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREF ERRED APPEAL BEFORE THE LD. CIT(A). ITA NO.3145/2014 DR. HUSEINA DAWOODI 3 4. HOWEVER, THE LD. CIT(A) CONFIRMED THE ADDITION S O MADE BY THE AO. THE ASSESSEE HAS, THUS, COME IN APPEAL BEFORE US. 5. THE LD. A.R. OF THE ASSESSEE HAS EXPLAINED THAT HER HUSBAND WHO IS AN NRI HAD IN FACT PAID AN AMOUNT OF RS.6 LAKHS FROM H IS ACCOUNT TO THE INSTITUTION AS ADMISSION FEES FOR HIS SON. THE SAI D AMOUNT WAS PAID OUT OF THE BANK ACCOUNT AND THROUGH BANKING CHANNEL AND WAS FU LLY ACCOUNTED FOR. NO CAPITATION FEE AS ALLEGED BY THE REVENUE HAS EVER B EEN PAID BY THE ASSESSEE. THE LD. A.R. HAS FURTHER INVITED OUR ATTENTION TO T HE JUDGMENTS OF THE CO- ORDINATE BENCHES OF THE TRIBUNAL IN RELATION TO THE IDENTICAL ADDITIONS MADE IN CASE OF OTHER STUDENTS. IN THE CASE OF VINAY KUMA R VS. ITO IN ITA NO.2181/M/2011 FOR A.Y. 2001-02 VIDE ORDER DATED 21 .02.14, THE TRIBUNAL IN THE IDENTICAL FACTS AND CIRCUMSTANCES AND RELATING TO THE SAME SEARCH ACTION IN CASE OF ANOTHER STUDENT, WHO WAS ADMITTED IN A COLL EGE RUN BY M/S. D.Y. PATIL GROUP OF COMPANIES, HAS NOTED THAT EXCEPT THAT THE NAME OF THE ASSESSEE APPEARED IN THE DIARY ENTRIES MAINTAINED BY THE ACC OUNT CLERK OF THE INSTITUTE, NO OTHER EVIDENCE HAD BEEN FOUND TO SHOW THAT THE A SSESSEE HAD EVER MADE ANY PAYMENT IN CASH TO THE INSTITUTION. THE TRIBUNAL, THEREFORE, HELD THAT IN THE ABSENCE OF ANY MATERIAL PLACED ON THE RECORD, THERE WAS NO BASIS FOR MAKING THE IMPUGNED ADDITION. SIMILARLY, IN THE CASE OF ITO V S. DR. RADHAKISHAN RAMJIVAN BHOOTRA IN ITA NO.3203/AHD/2008 FOR A.Y. 2000-01, THE AHMEDABAD BENCH OF THE TRIBUNAL IN IDENTICAL FACTS RELATING TO THE SAME GROUP OF INSTITUTE, HAS HELD THAT ADDITIONS CANNOT BE MAD E ON THE BASIS OF DIARY ENTRIES ONLY IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE A ND IN THAT CASE THE TRIBUNAL UPHELD THE FINDING OF THE LD. CIT(A) IN DELETING TH E ADDITIONS. THE LD. D.R. COULD NOT BRING OUT ANY DIFFERENTIATING FACT IN THI S CASE. HENCE, RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-ORDINATE BENCHES O F THE TRIBUNAL ON THE IDENTICAL FACTS AND CIRCUMSTANCES, IN OUR VIEW, ADD ITIONS IN THIS CASE ONLY ON THE BASIS OF ENTRIES IN A DIARY WITHOUT ANY CORROBO RATIVE EVIDENCE CAN NOT BE HELD TO BE JUSTIFIED. IT IS PERTINENT TO MENTION H ERE THAT IN THIS CASE THE ITA NO.3145/2014 DR. HUSEINA DAWOODI 4 STATEMENT OF THE ASSESSEE WAS RECORDED BY THE AO AN D SPECIFIC QUESTIONS WERE PUT REGARDING THE DIARY ENTRY/CAPITATION FEE. HOWE VER, THE ASSESSEE HAS SPECIFICALLY DENIED REGARDING MAKING OF ANY CASH PA YMENT TO THE INSTITUTE AND THE AO HAS FAILED TO BRING ANY EVIDENCE ON THE FILE TO SHOW THAT THE STATEMENT MADE BY THE ASSESSEE BEFORE HIM WAS WRONG. IN VIEW OF THIS, THE ADDITIONS MADE BY THE LOWER AUTHORITIES IN THIS CASE DO NOT S EEM TO BE JUSTIFIED AND THE SAME ARE ACCORDINGLY ORDERED TO BE DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.03.2016. SD/- SD/- (RAJESH KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 16.03.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.