The ITO, Ward-2, Gandhinagar V. Hasumatiben Bipinchandra Patel, Gandhinagar

ITA 3379/AHD/2010

• Counselvise Citation: 337920514 RSA 2010
• Duration Of Justice: 2 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 22-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Retraction
• Section: 11; 133A

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ %& %& %& %& , , , , &' &' &' &' ( & ' ( & ' ( & ' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) ITA NO.3379/AHD/2010 WITH CO NO.21/AHD/2011 [ASSTT.YEAR : 2007-2008] ITO, WARD-2 GANDHINAGAR. /VS. HASUMATIBEN BIPINCHANDRA PATEL PLOT NO.179/2, SECTOR 8C GANDHINAGAR. PAN : AOVPP 1709 G ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ( . / &/ REVENUE BY : SHRI P.L. KUREEL, SR.DR 1% . / &/ ASSESSEE BY : SHRI MEHUL K. PATEL 2 . %3'/ DATE OF HEARING : 19 TH SEPTEMBER, 2013. 456 . %3'/ DATE OF PRONOUNCEMENT : 04/10/2013 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL OF THE REVENUE AND CO OF THE ASSESSEE FOR A.Y.2007-2008 AR E DIRECTED AGAINST THE ORDER OF THE CIT(A), GANDHINAGAR DATED 22.10.2010. THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. ITA NO.3379/AHD/2010 (REVENUES APPEAL) ITA NO.3379/AHD/2010 -2 2. THE GROUND NO.1 AND 2 OF THE REVENUES APPEAL AR E AS UNDER: AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE ON ACCOUNT OF TUITION FEES OF RS. 9,22,500/-. 2. THE LD.CIT9A) HA FAILED TO APPRECIATE THE FACT T HAT IN THE STATEMENT RECORDED DURING THE COURSE OF SURVEY PROC EEDINGS U/S.133A OF THE ACT, THE ASSESSEE HERSELF CONFESSED TO HAVE RECEIVED UNACCOUNTED TUITION INCOME OF RS.20 LACS, BUT WHILE FILING THE RETURN, SHE RETRACTED FROM HER STATEMENT RECORDED AND HAS SHOWN ONLY AN AMOUNT OF RS.10,77,500/- IN THE R ETURN AS TUITION INCOME. 3. THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAS S URRENDERED UNACCOUNTED TUITION INCOME OF RS.20 LAKHS AT THE TI ME OF SURVEY UNDER SECTION 133A OF THE ACT, BUT HAS SHOWN ONLY AN AMOU NT OF RS.10,77,500/- IN HER RETURN OF INCOME AS TUITION I NCOME. HE SUBMITTED THAT THERE IS NO VALID REASON FOR THE SO- CALLED RETRACTION MADE BY THE ASSESSEE AFTER A GAP OF SEVEN DAYS FROM THE DATE OF ORIGINAL STATEMENT RECORDED BY THE DEPARTMENT AT TH E TIME OF SURVEY MAKING A SURRENDER OF RS.20 LAKHS. HE REFERRED TO RELEVANT PORTIONS OF THE ASSESSMENT ORDER IN SUPPORT OF THE CASE OF THE REVENUE. HE RELIED ON THE ORDER OF THE AO. THE LEARNED COUNSEL FOR TH E ASSESSEE HAS OPPOSED THE SUBMISSIONS OF THE LEARNED DR. HE SUBM ITTED THAT IN ANSWER TO QUESTION NO.10 IN THE STATEMENT RECORDED ON 29.11.2006, AT THE TIME OF SURVEY, THE ASSESSEE HAS CATEGORICALLY STATED THAT SHE WAS CHARGING RS.3,500/- FROM STUDENTS OF STD.11 AND RS. 6,500/- FROM STUDENT OF STD. 12, AND THEREFORE, CONSIDERING THES E FACTS, SHE CALCULATED TOTAL OF FEES CHARGED PER STUDENT FOR ST D. 11 AND STD. 12 AT RS.10,000/- EACH. THE LEARNED COUNSEL FOR THE ASSE SSEE SUBMITTED THAT SHE HAS STATED IN ANSWER TO QUESTION NO.10 ITSELF T HAT AS THIS IS A ITA NO.3379/AHD/2010 -3 STATISTICAL CALCULATION I WILL MATCH WITH MY KACHHA REPORTS AND INFORM IF ANY CHANGE IS THERE. HE SUBMITTED THAT WITHIN A VERY SHORT PERIOD OF SEVEN DAYS I.E. 5.12.2006, THE ASSESSEE HAS FILE D A LETTER GIVING EXACT AND CORRECT CALCULATIONS OF FEES CHARGED, AND HAS ACCORDINGLY SHOWN INCOME OF RS.10,77,500/- IN HER RETURN OF INC OME. HE SUBMITTED THAT THERE IS NO MATERIAL TO SUPPORT THE ASSESSED FIGURE OF RS.20 LAKHS, AS TUITION INCOME OF THE ASSESSEE, AND THEREFORE THE ORDER OF THE CIT(A) SHOULD BE CONFIRMED. HE RELIED ON TH E ORDER OF THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND CIT(A) AND ALSO THE RELEVANT PORTIONS OF THE STATEMENT OF THE ASSESSEE RECORDED AT THE TIME OF SURVEY, AND CO PY OF THE RETRACTION DATED 5.12.2006, ENGLISH TRANSLATION WHEREOF HAS BE EN FILED BEFORE US. WE FIND THAT THE ASSESSEE IN HER STATEMENT RECORDED AT THE TIME OF SURVEY ON 29.11.2006, IN REPLY TO QUESTION NO.10 HA S CLEARLY STATED THAT IN STD.11 THERE WERE 80 STUDENTS, AND SUM OF R S.3,500/- WAS CHARGED FROM EACH STUDENT OF STD. 11 AND THAT IN ST D. 12, THERE WERE 120 STUDENTS, AND RS.6,500/- AS CHARGED FROM THEM. THE ASSESSEE HAS STATED IN THE STATEMENT RECORDED AT THE TIME OF SUR VEY THAT AS THIS IS A STATISTICAL CALCULATION I WILL MATCH WITH MY KACHHA REPORTS AND INFORM IF ANY CHANGE IS THERE ..... . THE ASSESSEE MADE NECESSARY CALCULATIONS AND FILED A LETTER DATED 5.12.2006 BEF ORE THE AO WHEREIN THE CALCULATIONS WERE SUBMITTED SHOWING THAT THE AS SESSEE MADE ONLY INCOME OF RS.10,60,000/-. THE REVENUE COULD NOT PR ODUCE ANY MATERIAL TO CONTROVERT THE CONTENTS OF THE CALCULAT ION SHEET/RETRACTION LETTER DATED 5.12.2006 FILED BEFORE THE AO. THE CI T(A) HAS GIVEN A FINDING THAT ONLY EVIDENCE OF ACTUAL FEE RECEIPT WA S ONLY IN THE FORM OF ITA NO.3379/AHD/2010 -4 STATEMENT OF THE ASSESSEE RECORDED DURING THE COURS E OF SURVEY PROCEEDINGS. THE CIT(A) HAS RECORDED VARIOUS REASO NS FOR ACCEPTING THE CALCULATIONS OF UNACCOUNTED TUITION INCOME OF T HE ASSESSEE, AS AGAINST THE SURRENDER AMOUNT OF RS.20 LAKHS MADE AT THE TIME OF SURVEY BY THE ASSESSEE. THE CIT(A) HAS RECORDED TH AT TOTAL OF RS.3,500/- AND RS.6,500/- COMES TO RS.10,000/- AND NORMALLY A STUDENT WILL BE GETTING ADMISSION IN CLASS-11, WOUL D ALSO TAKE TUITION IN CLASS-12, AND THEREFORE, WOULD BE PAYING RS.10,0 00/- FOR BOTH THE CLASSES TOGETHER. THE CIT(A) HAS RECORDED THAT IN REPLY TO QUESTION NO.10 RECORDED AT THE TIME OF SURVEY ITSELF, THE AS SESSEE HAS STATED THAT SHE WILL MATCH THE CALCULATIONS AND INFORM IF ANY C HANGE IS THERE, AND IT SHOWS THAT SHE WAS NOT COMFORTABLE WITH THE FIGU RE OF RS.20 LAKHS SURRENDERED BY HER. WE FIND THAT THE REVENUE HAS N OT MADE ANY FURTHER INVESTIGATION IN THE MATTER AFTER RETRACTIO N LETTER DATED 5.12.2006 WAS FILED, AS THEY COULD HAVE ASCERTAINED THE QUANTUM OF FEES FROM THE STUDENTS OF STD.11 AND STD. 12. THE CIT(A) HAS ALSO RECORDED THAT DECLARATION WAS MADE BY THE ASSESSEE WITHIN A WEEK ITSELF, AND AT NO STAGE, STATEMENT OF ANY STUDENT T O THE CONTRARY WAS CONFRONTED TO THE ASSESSEE. IN THESE FACTS OF THE CASE, WE HAVE NO HESITATION TO HOLD THAT THERE IS NO MISTAKE IN THE ORDER OF THE LEARNED CIT(A) IN DELETING THE ADDITION OF RS.9,22,500/-, A ND THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE IS CONFIRMED AND THE G ROUND NOS.1 AND 2 OF THE REVENUE ARE DISMISSED. 5. THE GROUND NO.3 OF THE REVENUE READS AS UNDER: 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE ON ACCOUNT OF LOW HOUSEHOLD WITHD RAWALS OF RS.60,000/- ITA NO.3379/AHD/2010 -5 6. WE HAVE HEARD THE PARTIES. WE FIND THAT THE ASS ESSEE HAS WITHDRAWN A SUM OF RS.1,13,000/- AND HER HUSBAND HA S WITHDRAWN RS.60,000/- FOR HH EXPENSES OF THE FAMILY CONSISTIN G OF HUSBAND, WIFE AND TWO CHILDREN. THE EXPENSES SEEMS TO BE RE ASONABLE, AND THEREFORE, NO INTERFERENCE IN THE ORDER OF THE CIT( A) ON THIS ISSUE IS CALLED FOR, AND THE GROUND NO.3 OF THE REVENUE IS D ISMISSED. CO NO.21/AHD/2010 (ASSESSEES CO) 7. THE ONLY GROUND OF THE CO OF THE ASSESSEE IS AS UNDER: 1. THAT THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.1,00,000/- A DDED AS ADMISSION FEE. 8. WE HAVE HEARD THE PARTIES. WE FIND THAT THE CIT (A) HAS PASSED A WELL REASONED ORDER ON THIS ISSUE. THE CIT(A) HA S RECORDED THAT IN THE BUSINESS OF EDUCATION, GENERAL PRACTICE IS TO T AKE ADMISSION FEES OR ENTRANCE FEES SEPARATELY FROM THE TUITION FEES, AND THEREFORE, ON THE BASIS OF PREPONDERANCE OF PROBABILITIES, SUSTAINED THE ADDITION OF RS.1,00,000/- MADE BY THE AO. WE FIND THAT THERE I S NO MATERIAL BEFORE US TO TAKE A CONTRARY VIEW, AND ACCORDINGLY ORDER OF THE CIT(A) ON THIS ISSUE IS CONFIRMED, AND THE GROUND OF THE C O OF THE ASSESSEE IS DISMISSED. 9. IN THE RESULT, APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %& %& %& %& / TEJ RAM MEENA) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT