AMIT KUMAR K BHAGAT, MUMBAI V. ITO 3(1), KALYAN

ITA 4659/MUM/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8207 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 11-08-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 09-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M RAJAN
• Section: 69C; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. 4659/MUM/2011 ASSESSMENT YEAR: 2001-02 AMIT KUMAR K. BHAGAT 1 ST FLOOR, WADAL BLDG NEAR DOMBIVALI (E) MUMBA I PAN: AMVPB2663B VS ITO 3(1) 1 ST FLOOR, RANI MANITON KALYAN MURBAD RD. ABOVE CANARA BANK KALYAN (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI M. RAJAN DATE OF HEARING : 11.08.2014 DATE OF PRONOUNCEMENT : 31.10.2014 O R D E R PER VIVEK VARMA, JM: THE INSTANT APPEAL IS FILED AGAINST THE ORDER OF TH E LD.CIT(A)-1, THANE DATED 31.03.2011, WHEREIN THE FOLLOWING GROUNDS HAVE BEEN TAKEN: 1. CONFIRMING THE ORDERS OF LOWER AUTHORITY AND CO NFIRMED THE ADDITION U/S 69 C OF IT ACT 1961 BAD BEFORE THE EYES OF LAW. 2. HE ALSO REJECTING THE GROUNDS THAT NOTICE U/S 14 8 ISSUED BY THE AO NOT DENOTING THE REASONS HAVE PROPER WITHIN THE MEANING OF LAW SINCE THE ASSESSEE FILED THE RETURN, NOT OBJECTED BEFORE THE AO. HENCE ITS A REVENUE GROUND HAVE NOT MAINTAINABLE. NOT A CORRECT VIEW. 3. HE UPHELD THE ORDER OF LOWER AUTHORITY WITHOUT A SCERTAINING ANY PAPERS IN THE HANDS OF AO OR INVESTIGATION AUTHORITY. THE ASS ESSING AUTHORITY HAVE NO PAPERS IN HIS HANDS EXCEPT A LETTER FROM INVESTIGAT ION AUTHORITY IN CASE OF RAMRAO ADHIK I.E. D.Y. PATIL COLLEGE OF TECHNOLOGY UPON SUCH LETTER THE ADDITION DONE BY THE AO NOT MAINTAINABLE. 2. ON THE DATE OF HEARING , WHEN THE CASE WAS CALLE D UP FOR HEARING AND IT WAS FOUND THAT NEITHER THERE WAS ANY ATTENDANCE BY THE ASSESSEE OR THE AR NOR THERE WAS ANY PRAYER FOR ADJOURNMENT. ON GOING THROUGH TH E ORDER SHEET, WE FIND THAT THE DATE OF HEARING HAD BEEN FIXED AT THE CONVENIENCE O F BOTH THE PARTIES. SINCE THERE IS NO ATTENDANCE BY THE ASSESSEE, WE ARE DISPOSING THE APPEAL EX PARTE, IN ABSENCE OF THE ASSESSEE/AR. ITA NO. 4659/MUM/2011 AMIT KUMAR K. BHAGAT ASSESSMENT YEAR: 2001-02 2 3. FROM THE EARLIER NOTINGS ON GOA, TWICE IT HAS BE EN MENTIONED THAT GROUND NO. 2 & 3 ARE NOT PRESSED. WE FOLLOW, THE NOTINGS AND R EJECT GROUND NO. 2 & 3. 4. GROUNDS NO. 2 & 3 ARE, THEREFORE, REJECTED. 5. WE ARE NOW LEFT WITH GROUND NO. 1, WHICH IS LIVE , EFFECTIVE AND SOLITARY ISSUE. 6. GROUND NO. 1 PERTAIN TO ADDITION OF RS. 6,02,00 0/- U/S 69C. THE FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL, WHO UNDERTOOK S PECILISED COURSE OF ELECTRONIC ENGINEERING FROM RAMRAO ADHIK INSTITUTE OF TECHNICA L EDUCATION, NERAL UNDER DY PATIL UNIVERSITY. FROM THE INFORMATION RECEIVED BY THE DEPARTMENT, IT WAS FOUND THAT ADMISSIONS TO THE COURSE WAS THROUGH CAPITATION FEE AND IT WAS ALLEGED THAT THE ASSESSEE PAID RS. 6,02,000/- AS CAPITATION FEE IN ADDITION TO TUITION FEE OF RS. 1,98,305/- ON VARIOUS DATES. 7. THE AO RECEIVED NOTICE U/S 148 AND CALLED FOR EX PLANATION WITH REGARD TO PAYMENT OF CAPITATION FEE. THE ASSESSEE SUBMITTED B EFORE THE AO THAT HE SECURED ADMISSION THROUGH COMMON ENTRANCE TEST CONDUCTED FO R THE ADMISSION AND PRODUCED BEFORE HIM THE RECEIPT OF FEE FOR TEST AND ADMIT CA RD FOR THE ENTRANCE TEST. THE AO DISREGARDED THE EXPLANATION AS WELL AS THE EVIDENCE S PRODUCED BEFORE HIM AND HELD THEM TO BE BASELESS AND ON THE INFORMATION HE HAD W ITH HIM, ADDED RS. 6,02,000/-. 8. THE ASSESSEE MOVED HIS GRIEVANCE BEFORE THE CIT( A), AND REITERATED THE SUBMISSIONS AND EVIDENCES PRODUCED BEFORE THE AO, T HE CIT(A), AFTER CONSIDERING THE DETAILED SUBMISSIONS AND THE ORDER OF THE AO, S USTAINED THE ADDITION MADE WITH THE FOLLOWING OBSERVATIONS. THE SUBMISSION IS CONSIDERED AND THE ARGUMENT HEAR D. I FIND THAT, THE AO HAS MADE ASSESSMENT ON THE BASIS OF INFORMAT ION RECEIVED FROM THE INVESTIGATION WING. I ALSO FIND THAT, THE RAMRAO ADHIK INSTITUTE IS A SELF FINANCING INSTITUTE AND PAYMENT OF CAPITATION FEE IS PART OF ADMISSION PROCESS. IN THE ABSENCE OF ANY CR EDIBLE EXPLANATION FOR THE SOURCE, I HOLD THAT, AN AMOUNT OF RS.6,02,0 00/- OF A CAPITATION FEE ALLEGEDLY PAID REPRESENTS UNEXPLAINE D INCOME WITHIN THE MEANING OF SECTION 69C OF THE ACT. ACCORDINGLY, I CONFIRM THE ACTION OF THE AO AND DISMISS THE GROUND. 9. AGGRIEVED THE ASSESSEE IS NOW BEFORE THE ITAT. 10. BEFORE US, AS MENTIONED ABOVE, THERE WAS NO ATT ENDANCE ON BEHALF OF THE ASSESSEE AND THE DR RELIED THE ORDER OF THE REVENUE AUTHORITY. ITA NO. 4659/MUM/2011 AMIT KUMAR K. BHAGAT ASSESSMENT YEAR: 2001-02 3 11. ON GOING THROUGH THE ORDERS AND THE EVIDENCES, PLACED IN THE APB, WE FIND NOT ONE INDICATION, THAT THE AO WAS ACTING ON ANY I NFORMATION, BECAUSE, NOT EVEN ONCE THE INFORMATION AS GATHERED BY THE AO WAS EVER CONFRONTED TO THE ASSESSEE. THE ENTIRE EDIFICE OF THE REVENUE AUTHORITY IS BASE D ON HEAR SAY AND CONJECTURES AND NOT ON ANY CONCRETE EVIDENCE. THE REVENUE AUTHORITY SAY THAT THE ASSESSEES NAME APPEAR IN THE LEDGER OF THE INSTITUTE, BUT BEYOND T HIS, THE REVENUE AUTHORITY DO NOT SAY ANYTHING, I.E. HOW THEY CORRELATED THE ASSESSEE WITH THE LEDGER, WHAT TYPE OF LEDGER ACCOUNT WAS THE REVENUE AUTHORITY RELYING UP ON. WE FIND THAT EVEN THE REASON GIVEN BY THE CIT(A) TO SUSTAIN THE ADDITION IS MORE OF A SURMISE THEN BACKED WITH CERTAIN EVIDENCE. WHY AND HOW THE REVENUE AUTH ORITY HAVE COMPLETELY DISREGARDED THE EVIDENCE PLACED BEFORE THEM BY THE ASSESSEE, NOT EVEN A WORD HAS BEEN SAID. MERELY CONCLUDING, THAT THE ASSESSEE HAS GIVEN CAPITATION FEE CANNOT BE MADE THE BASIS FOR ADDITION. IN THESE CIRCUMSTANCES , WE SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND DIRECT THE AO TO DELETE T HE ADDITION. 12. GROUND NO. 1 IS, THEREFORE, ALLOWED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF OCTOBER, 2014. SD/- SD/- (B.R. BASKARAN) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 31.10.2014 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR A BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.