DCIT, Chandigarh V. M/s Indo Soviet Friendship College for Pharmacy Managing Committee, Moga

ITA 478/CHANDI/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1644 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-09-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 02-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Search and seizure; Loose papers; Document seized; Additional evidence; Documents seized
• Section: 12AA; 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 478 & 479/CHD/2013 A.Y: 2004-05, 2008-09 THE DCIT, V M/S INDO SOVIET FRIENDSHIP CENTRAL CIRCLE-II, COLLEGE FOR PHARMACY CHANDIGARH. MANAGING COMMITTEE, RAILWAY ROAD, MOGA. PAN: AAATI4977L & ITA NO. 444,445,446/CHD/2013 A.Y: 2006-07, 2007-08,2008-09 M/S INDO SOVIET FRIENDSHIP V THE ACIT, COLLEGE FOR PHARMACY CENTRAL CIRCLE II, MANAGING COMMITTEE, CHANDIGARH. RAILWAY ROAD, MOGA. PAN: AAATI4977L (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI S.K.MITTAL ASSESSEE BY : SHRI SUDHIR SEHGAL DATE OF HEARING : 15.09.2015 DATE OF PRONOUNCEMENT : 28.09.2015 O R D E R PER BHAVNESH SAINI,JM THIS ORDER SHALL DISPOSE OF ALL THE ABOVE APPEALS F ILED BY THE REVENUE AND THE ASSESSEE AGAINST THE ORDER O F LD. CIT(APPEALS) CENTRAL, GURGAON DATED 26.02.2013 FOR 2 ASSESSMENT YEARS 2004-05, 2006-07, 2007-08 AND 2008-09. 2. IN THIS CASE, SEARCH & SEIZURE OPERATION WAS CONDUCTED ON 15.07.2008 AT THE RESIDENCE AND OFFICE PREMISES AT INDIVIDUAL AND GROUP OF CONCERNS OF M/S B.R. INSTITUTE OF MEDICAL SCIENCES. THE ASSESSEE SOCIET Y IS GRANTED REGISTRATION UNDER SECTION 12AA OF THE INCO ME TAX ACT ON 06.06.1997. 3. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. ALL T HE APPEALS ARE DECIDED AS UNDER. ITA 478/2013 : A.Y. 2004-05 (DEPARTMENTAL APPEAL) 4. THE REVENUE ON GROUND NO. 1 CHALLENGED THE ORDER OF LD. CIT(APPEALS) IN DELETING DISALLOWANCE MADE ON A CCOUNT OF VEHICLE RUNNING EXPENSES AND DEPRECIATION OF CAR IN TERMS OF SECTION 13(2)(B) OF THE INCOME TAX ACT. T HE ASSESSING OFFICER NOTED THAT PROVISIONS OF SECTION 13(2)(B) AND (C) APPLIES IN THE CASE OF THE ASSESSEE AND THA T DISALLOWANCE OUT OF SALARY, ALLOWANCES OR OTHERWISE PAID TO THE TRUSTEES OUT OF THE RESOURCES OF THE INSTITU TION FOR SERVICES RENDERED BY SUCH PERSONS TO SUCH INSTITUTI ON NEED TO BE DISALLOWED IF THERE IS ANY EXCESS AMOUNT OF WHAT MAY BE CONSIDERED AS REASONABLE PAYMENT FOR SU CH SERVICES. THE ASSESSEE TRUST MAINTAINED LUXURY CAR S SUCH AS SKODA, FORD ICON AND SONATA. HOWEVER, ABOVE CAR S 3 WERE BEING USED BY SHRI ANOOP GARG, CHAIRMAN OF THE TRUST. THE ASSESSING OFFICER NOTED THAT TRUST HAS NO REQUIREMENT TO MAINTAIN SUCH LUXURY CARS. CARS HAV E BEEN USED BY THE CHAIRMAN, THEREFORE, ASSESSING OFF ICER NOTED THAT THE VEHICLE RUNNING EXPENSES AND DEPRECI ATION MUST HAVE BEEN USED FOR THE BENEFIT OF TRUST AS WEL L AND ACCORDINGLY DISALLOWED 50% OF THE EXPENSES AND ADDI TION WAS MADE IN A SUM OF RS. 8,84,410/-. 5. THE LD. CIT(APPEALS), FOLLOWING HIS ORDER FOR ASSESSMENT YEAR 2008-09 DELETED THE ADDITION. 6. THE LD. DR RELIED UPON ORDER OF THE ASSESSING OF FICER AND SUBMITTED THAT SINCE LUXURY CARS HAVE BEEN USED BY THE CHAIRMAN OF THE ASSESSEE TRUST, THEREFORE, DISALLOWANCE WAS CORRECTLY MADE BY THE ASSESSING OF FICER. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE REI TERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. HE HAS SUBMITTED THAT ACCOUNTS OF THE ASSESSEE ARE AUDITED AND ADDITION IS MADE PURELY ON ESTIMATE BASIS WITHOUT F INDING AS TO WHICH OF THE EXPENSES ARE NOT WHOLLY AND EXCL USIVELY INCURRED FOR THE OBJECTIVES OF THE TRUST. HE HAS S UBMITTED THAT CHAIRMAN IS MAINLY LOOKING AFTER THE WORKING O F THE ASSESSEE TRUST AND HAS TO VISIT SEVERAL OFFICIAL DEPARTMENTS LIKE DENTAL COUNCIL OF INDIA, DELHI, KURUKSHETRA UNIVERSITY, PANDIT B.D.SHARMA UNIVERSIT Y AND HIGH COURT AND SUPREME COURT FOR LEGAL CASES ALONGWITH CBSE, PANCHKULA AND OTHER DEPARTMENTS OF THE PUNJAB AND DELHI. HE HAS SUBMITTED THAT CARS HAVE BEEN 4 OWNED BY THE ASSESSEE TRUST AND CHAIRMAN USES THE S AME FOR THE PURPOSE OF TRUST ONLY. ONLY ONE CAR IS USE D BY THE CHAIRMAN I.E. MERCEDES. IT WAS ALSO SUBMITTED THAT THE CHAIRMAN SHRI ANOOP GARG IS THE KEYMAN OF THE TRUST AND HAS NOT BEEN DOING ANY OTHER BUSINESS ACTIVITY. HE HAS, THEREFORE, SUBMITTED THAT ADHOC ADDITION WAS WHOLLY UNJUSTIFIED. HE HAS REFERRED TO CERTAIN DECISIONS OF DIFFERENT BENCHES OF THE TRIBUNAL RELIED UPON BEFOR E LD. CIT(APPEALS). 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE LD. CIT(APPEALS) NOTED THAT THERE IS NO DISPUTE THAT SH RI ANOOP GARG, CHAIRMAN IS SOLELY ENGAGED IN RUNNING T HE INSTITUTION. THE ACCOUNTS OF THE ASSESSEE TRUST HA VE BEEN AUDITED AND NOTHING INCRIMINATING AS REGARDS THE PE RSONAL USE OF VEHICLES NOR DETAILS REGARDING PAYMENT OF SA LARY WAS FOUND IN THE COURSE OF SEARCH. THE CASE MADE O UT BY THE ASSESSING OFFICER WAS THAT THERE IS NO REQUIREM ENT TO MAINTAIN LUXURY CARS. THE LD. CIT(APPEALS), CONSID ERING THESE FACTS FOUND THAT THE CHAIRMAN DID NOT HAVE HI S OWN VEHICLE. THE LD. CIT(APPEALS) RELIED UPON DECISION OF THE DELHI HIGH COURT IN THE CASE OF MOTI BAGH MUTUAL AI D EDUCATION 298 ITR 190 IN WHICH IT WAS HELD THAT, EVEN IF THERE ARE MINOR CONTRADICTIONS OR DEVIATIONS IN THE ACCOUNTS OF ASSESSEE, THAT BY ITSELF CANNOT SUBSTAN TIATE THE ALLEGATION THAT ASSESSEE DOES NOT EXIST SOLELY FOR EDUCATIONAL PURPOSES OR THAT IT EXIST PARTLY FOR PR OFIT MOTIVE. THE LD. CIT(A) NOTED THAT PROVIDING OF CA R, WHATEVER BE THE MODEL, TO THE CHAIRMAN, WHO DEVOTED FULL 5 TIME TO THE TRUST, CANNOT BE SAID TO BE UNREASONABL E. IT WAS ALSO NOTED THAT DEPRECIATION IS A STATUTORY ALL OWANCE, THEREFORE, DISALLOWANCE SHOULD NOT BE MADE. THE LD . CIT(APPEALS), ACCORDINGLY, SET ASIDE THE ORDER OF T HE ASSESSING OFFICER AND DELETED THE ADDITIONS. THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON R ECORD AS TO HOW HE HAS GIVEN HIS FINDING THAT THE CARS HA VE BEEN PURCHASED FOR THE BENEFIT OF THE CHAIRMAN. THE ASS ESSING OFFICER WAS ALSO NOT JUSTIFIED IN HOLDING THAT THE ASSESSEE TRUST HAS NO REQUIREMENT TO MAINTAIN LUXURY CAR. T HE EXPENSES SHOULD BE CONSIDERED FROM THE POINT OF VIE W OF THE ASSESSEE AND NOT FOR THE POINT OF VIEW OF THE A SSESSING OFFICER. IN THE ABSENCE OF ANY MATERIAL BROUGHT ON RECORD AGAINST THE ASSESSEE, THE ORDER OF THE ASSESSING OF FICER COULD NOT BE SUSTAINED. FURTHER, IT IS NOT IN DISP UTE THAT SHRI ANOOP GARG, CHAIRMAN IS LOOKING AFTER THE ACTI VITIES OF THE ASSESSEE TRUST WHOLE TIME AND HAS TO VISIT V ARIOUS GOVERNMENT DEPARTMENTS IN CONNECTION WITH THE ACTIV ITIES OF THE ASSESSEE TRUST. NO INCRIMINATING MATERIAL WA S FOUND DURING THE COURSE OF SEARCH IF THE CHAIRMAN HAS USE D THE CARS FOR PERSONAL PURPOSES. THEREFORE, IT APPEARS THAT ADDITION HAS BEEN MADE WHOLLY ON ADHOC BASIS WHICH COULD NOT BE SUSTAINED IN LAW. THE FINDINGS OF THE ASSESSING OFFICER HAVE NO BASIS WHAT-SO-EVER, THERE FORE, LD. CIT(APPEALS) WAS JUSTIFIED IN DELETING THE ADDI TION. FURTHER, FOR PROVING THE ALLEGATIONS UNDER SECTION 13(2)(C) OF THE ACT, ASSESSING OFFICER SHOULD BRING SOME EVI DENCE ON RECORD AS TO WHAT SHOULD BE THE REASONABLE AMOUN T 6 WHICH SHOULD BE PAID FOR THE SERVICES RENDERED BY T HE CHAIRMAN. HOWEVER, ASSESSING OFFICER HAS NOT BROUG HT ANYTHING ON RECORD AS TO HOW HE HAS CALCULATED THE REASONABLE AMOUNT TO BE PAID ON THE AFORESAID ISSUE S. THEREFORE, WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LD. CIT(APPEALS). THIS GROUND OF APPEAL OF REVENUE IS ACCORDINGLY DISMISSED. 8. ON GROUND NO. 2, REVENUE CHALLENGED THE ORDER OF LD. CIT(APPEALS) IN DELETING THE ADDITION OF RS. 1,86,8 7,381/- MADE ON ACCOUNT OF DISCREPANCIES IN TWO SET OF TRIA L BALANCES FOUND AT THE TIME OF SEARCH. THE ASSESSIN G OFFICER NOTED THAT THE CPU WAS SEIZED FROM THE PREM ISES OF M/S BRS INSTITUTE OF MEDICAL SCIENCES. THE COMPUTERIZED ACCOUNTS FROM THE COMPUTER OF THE ASSE SSEE SHOWS THAT THERE ARE TWO SEPARATE TRIAL BALANCES IN THE SAME PERIOD FROM 01.04.2003 TO 31.03.2004. IN ONE TRIAL BALANCE FOR THE ABOVE PERIOD, THE GRAND TOTAL OF DE BITS COMES TO RS. 10,88,57,474.06. ON THE OTHER HAND, S ECOND TRIAL BALANCE FOR THE SAME PERIOD SHOWS THE TOTAL D EBIT BALANCE OF RS. 9,01,70,093.78. THE ASSESSING OFFIC ER NOTED THAT ASSESSEE FAILED TO EXPLAIN DIFFERENCE IN THE TWO TRIAL BALANCES AND ACCORDINGLY, MADE THE ADDITION O F DIFFERENCE OF RS.1,86,87,381/-. THE ADDITION WAS CHALLENGED BEFORE LD. CIT(APPEALS). THE WRITTEN SUBMISSION OF THE ASSESSEE IS REPRODUCED IN THE APP ELLATE ORDER IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT THE TRIAL BALANCES HAVING TOTAL OF RS. 9.01 CR WAS INCOMPLETE AND CANNOT BE RELIED UPON WHICH FACT COULD BE VERIFIED FROM 7 THE BALANCE SHEET WHICH HAS BEEN FINALIZED ON THE B ASIS OF THE TRIAL BALANCE WITH TOTAL AMOUNT OF RS. 10.88 CR . THE TOTAL OF THE BALANCE SHEET WHEN FINALIZED IS MORE A S AGAINST THE FIGURE ADOPTED BY THE ASSESSING OFFICER . IT WAS SUBMITTED THAT ASSESSING OFFICER MERELY ON THE BASIS OF DOUBTS AND ASSUMPTIONS OF CERTAIN FACTS AND WITH OUT POINTING OUT ANY SPECIFIC DEFECT, MADE THE ADDITION . THE ACCOUNTS OF THE ASSESSEE ARE MAINTAINED IN A COMPUT ER SOFTWARE KNOWN AS TALLY AND IN THE SAID SOFTWARE, E NTRIES ARE PASSED FOR A PARTICULAR FINANCIAL YEAR. WHENEVE R WE GET THE PRINT OUT OF THE TRIAL BALANCE, THE SOFTWAR E WOULD GIVEN THE PRINT OUT OF WHOLE PERIOD. IT WAS SUBMIT TED THAT DIFFERENCE IN TWO TRIAL BALANCES COULD NOT BE TREAT ED AS UNDISCLOSED INCOME OF THE ASSESSEE. THE INCOMPLETE TRIAL BALANCE WAS BECAUSE OF THE ERROR ON THE PART OF THE ACCOUNTANT. THE SUBMISSIONS OF THE ASSESSEE WERE FORWARDED TO THE ASSESSING OFFICER AND THE ASSESSIN G OFFICER IN THE REMAND REPORT, SUBMITTED THAT OPPORT UNITY WAS GIVEN AT THE ASSESSMENT STAGE BUT DIFFERENCES W ERE NOT RECONCILED BY THE ASSESSEE. THE ASSESSEE IN THE REJOINDER, REITERATED THE SAME FACTS. THE ASSESSEE ALSO FILED COMPLETE DETAILS AND SUBMITTED THAT WHEN COMPARISON IS MADE OF THE INCOMPLETE TRIAL BALANCES AND COMPLETE TRIAL BALANCES, THERE WOULD BE NO DEFECT. 9. THE LD. CIT(APPEALS) IN HIS FINDINGS NOTED THAT ASSESSING OFFICER HAS NOT REBUTTED THE SUBMISSIONS OF THE ASSESSEE. THE ASSESSEE WAS ASKED TO PREPARE A CHART FROM THE LEDGER ACCOUNT WHICH WAS AVAILABLE WITH THE 8 DEPARTMENT BEING PART OF THE SEIZURE TO COMPARE THE TWO TRIAL BALANCES. ON COMPARISON OF THE SAME, IT WAS SEEN THAT NOT RECORDING OF BANK ENTRIES ETC. WAS THE REA SON FOR DIFFERENCE WHICH IS RECONCILED. THE LD. CIT(APPEAL S) ACCORDINGLY, DELETED THE ADDITION. 10. THE LD. DR RELIED UPON ORDER OF THE ASSESSING O FFICER AND SUBMITTED THAT DIFFERENCE WAS NOT RECONCILED AT THE ASSESSMENT STAGE. ON THE OTHER HAND, LD. COUNSEL F OR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. HE HAS REFERRED TO PB-629 TO 63 4 WHICH IS THE RECONCILIATION OF THE ABOVE FIGURE ON THE BASIS OF THE CHART PREPARED FOR COMPLETE TRIAL BALANCE AN D INCOMPLETE TRIAL BALANCES AND SUBMITTED THAT DIFFER ENCE WAS RECONCILED DUE TO MISSING OF CERTAIN ENTRIES. THE DETAILS OF COMPLETE TRIAL BALANCES ARE FILED AT PB- 635 TO 640 AND DETAILS OF INCOMPLETE TRIAL BALANCES IS FIL ED AT PB- 641 TO 646 AND ALL THE ANNEXURES TO THIS RECONCILIA TION ARE FILED IN THE PAPER BOOK. HE HAS SUBMITTED THAT DUE TO DIFFERENCE ON ACCOUNT OF MISSING ENTRIES, INCOMPLET E TRIAL BALANCE SHOULD NOT BE ACCEPTED BY THE ASSESSING OFF ICER AND THE LD. CIT(APPEALS) ON PROPER APPRECIATION OF FACTS AND MATERIAL ON RECORD, RIGHTLY DELETED THE ADDITIO N. 11. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE ASSESSEE HAS GIVEN THE REASONS FOR DIFFERENCE IN TH E TRIAL BALANCE AND RECONCILED THE SAME WITH THE HELP OF RECONCILIATION STATEMENT, COPIES OF WHICH ARE FILED AT 9 PAGES 629 TO 634 OF THE PAPER BOOK. THE ASSESSEE H AS GIVEN COMPLETE DETAILS OF COMPLETE TRIAL BALANCES A ND INCOMPLETE TRIAL BALANCES AND THE REMARKS AND THE REASONS FOR DIFFERENCE IN THE FIGURE. THESE FIGURE S HAVE BEEN RECONCILED AND IS SUPPORTED BY ALL THE ENTRIES MADE IN THE BOOKS OF ACCOUNT. THE DIFFERENCE IN BOTH TH E TRIAL BALANCES WAS THUS, DUE TO CERTAIN MISSING ENTRIES W HICH HAVE BEEN EVEN RECONCILED BEFORE US DURING THE COUR SE OF ARGUMENTS. WHEN ALL THESE RECONCILIATIONS WERE SUB MITTED TO THE ASSESSING OFFICER FOR HIS COMMENTS, THE EXPL ANATION OF THE ASSESSEE WAS NOT REBUTTED BY THE ASSESSING O FFICER IN ANY MANNER. THUS, THE LD. CIT(APPEALS) ON THE BA SIS OF MATERIAL ON RECORD, WAS RIGHTLY SATISFIED WITH RECONCILIATION DONE BETWEEN INCOMPLETE TRIAL BALANC E AND COMPLETE TRIAL BALANCE. THUS, LD. DR FAILED TO POI NT OUT ANY ERROR IN ORDER OF LD. CIT(APPEALS) IN DELETING THE ADDITION. FURTHER, WHEN ASSESSEE PREPARED THE BALAN CE SHEET ON THE BASIS OF COMPLETE DATA AVAILABLE IN TH E TRIAL BALANCES, THE FIGURE CAME TO MORE AS COMPARED TO TH E LESSER FIGURE TAKEN BY THE ASSESSING OFFICER FROM T HE INCOMPLETE TRIAL BALANCE. THEREFORE, THIS ITSELF W OULD SHOW THAT THERE WERE NO BASIS WHAT-SO-EVER FOR MAKI NG ADDITION AGAINST THE ASSESSEE. IT WAS MERELY A MIST AKE IN NOT MAKING CERTAIN ENTRIES IN INCOMPLETE TRIAL BALA NCE, THUS COULD NOT BE TERMED AS UNDISCLOSED INCOME OF T HE ASSESSEE. THE LD. CIT(APPEALS) ON PROPER APPRECIAT ION OF FACTS AND RECONCILIATION STATEMENT FILED BEFORE HIM , WAS JUSTIFIED IN DELETING THE ADDITION. WE, THEREFORE, DO NOT 10 FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVE NUE. THE SAME IS ACCORDINGLY DISMISSED. 12. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED . ITA 444/2013 (A.Y. 2006-07) (ASSESSEE'S APPEAL) 13. THE ASSESSEE IN THIS APPEAL HAS CHALLENGED THE ADDITION OF RS. 5 LACS ON ACCOUNT OF DISALLOWANCE O F SALARY PAID TO SHRI ANOOP GARG, CHAIRMAN UNDER SECTION 13(2)(B)(C) OF THE INCOME TAX ACT. THE ASSESSING O FFICER APPLIED PROVISIONS OF SECTION 13(2)(B)(C) OF THE AC T FOR MAKING DISALLOWANCE BECAUSE THE AMOUNT SO PAID TO T HE CHAIRMAN WAS EXCESS OF WHAT MAY BE REASONABLY PAID FOR SUCH SERVICES. THE ASSESSING OFFICER NOTED THAT IN THE PRESENT CASE, M/S BRS INSTITUTE OF MEDICAL SCIENCES , AN INSTITUTION RUN BY THE ASSESSEE TRUST HAS PAID SALA RY TO SHRI ANOOP GARG WHO IS CHAIRMAN OF THE TRUST FOR TH E SAME WORK AT RS. 0 (MINIMUM) AND RS. 11 LACS (MAXIM UM) AT DIFFERENT TIMES. IN THE ASSESSMENT YEAR UNDER A PPEAL, ASSESSEE HAS PAID RS. 10 LACS TO SHRI ANOOP GARG AS SALARY. THE ASSESSING OFFICER CONSIDERING THE FACT THAT CHAIRMAN IS PERSON AS PER SECTION 13(3)(C) OF THE A CT, ONLY RS. 5 LACS WAS FOUND REASONABLE AND ACCORDINGLY, AD DITION OF RS. 5 LACS WAS MADE. 14. THE LD. CIT(APPEALS), FOLLOWING HIS ORDER FOR ASSESSMENT YEAR 2008-09, CONFIRMED THE ADDITION AND DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. 11 15. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. HE HAS SUBMITTED THAT ADHOC ADDITION HAS BEEN MADE BY DISALLOWING SALARY. THE BRS DENTAL COLLEGE IS MAINL Y LOOKED AFTER BY THE CHAIRMAN AND HAS NO OTHER SOURC E OF INCOME OTHER THAN THE SALARY RECEIVED FROM THE ASSE SSEE SOCIETY. THE ASSESSING OFFICER CANNOT FIND OUT WHA T WOULD BE REASONABLE SALARY TO BE GIVEN BY THE TRUST TO AN Y PERSON. THE QUANTUM OF AMOUNT WOULD DEPEND UPON NUMBER OF FACTORS. NO FACTORS HAVE BEEN CONSIDERED BY THE ASSESSING OFFICER. HE HAS SUBMITTED THAT THE DUTIE S PERFORMED BY THE CHAIRMAN ARE PROCESSING OF PROPOSA L FOR GRANT OF APPROVAL FOR DEVELOPMENT OF THE INSTITUTE, COORDINATION WITH ALL THE THREE INSTITUTES OF THE ASSESSMENT TRUST, POLICY PLANNING, PRESCRIBING NORM S OF FEES AND ADMISSION, FACULTY DEVELOPMENT SCHEME, PAY SCALES OF TEACHERS, TRAINING OF OFFICERS, RECRUITME NTS, CONSTRUCTION OF BUILDING OF INSTITUTE, STAFF WELFAR E SCHEME, CONDUCT ALL SURPRISE INSPECTION OF VARIOUS DEPARTME NTS, CO-ORDINATION WITH SEVERAL GOVERNMENT AUTHORITIES E TC. HE HAS SUBMITTED THAT ASSESSEE CLAIMED SALARY PAYMENT OF RS. 10 LACS TO THE CHAIRMAN, ASSESSING OFFICER WITH OUT ANY REASONS DISALLOWED RS. 5 LACS. THE SERVICES RE NDERED BY THE CHAIRMAN HAVE NOT BEEN DOUBTED WHO WAS WHOLE TIME CHAIRMAN OF THE ASSESSEE TRUST. HE HAS SUBMIT TED THAT LD. CIT(APPEALS) HAS AGREED THAT ASSESSING OFF ICER HAS NOT GIVEN ANY BASIS FOR THE ADDITION AND NO MAT ERIAL WAS FOUND DURING THE COURSE OF SEARCH, THEREFORE, A DDITION 12 WAS WHOLLY UNJUSTIFIED. HE HAS SUBMITTED THAT ASSE SSEE MAINTAINED THREE INSTITUTIONS I.E. ONE AT MOGA AND TWO AT PANCHKULA AND THE DISTANCE IS VERY WIDE BETWEEN THE M, THEREFORE, CHAIRMAN HAS TO VISIT SEVERAL PLACES AND VARIOUS GOVERNMENT AUTHORITIES IN CONNECTION WITH T HE ACTIVITIES OF THE ASSESSEE TRUST, THEREFORE, SALARY PAID TO CHAIRMAN WAS REASONABLE. 16. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT NO BASIS HAVE BEEN GIVEN FOR PAYING RS. 10 LACS AS SALARY TO THE CHAIR MAN. 17. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE LD. CIT(APPEALS) NOTED IN THE FINDINGS THAT NO INCRIMIN ATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH REGA RDING PAYMENT OF SALARY TO THE CHAIRMAN. THE LD. CIT(APP EALS) ALSO NOTED IN HIS FINDINGS THAT NO SPECIFIC REASONS HAVE BEEN GIVEN FOR SUDDEN RISE AND SUDDEN FALL IN THE P AYMENT OF SALARY AND THE ASSESSING OFFICER HAS ALSO NOT WO RKED OUT HOW HE CAME TO THE CONCLUSION THAT REASONABLE S ALARY TO BE PAID TO THE CHAIRMAN SHOULD BE WORKED OUT TO RS. 5 LACS ONLY. THE LD. CIT(APPEALS) ULTIMATELY DISMISS ED THIS GROUND OF APPEAL OF THE ASSESSEE. SECTION 13(2)(C) OF THE INCOME TAX ACT PROVIDES THAT THE INCOME OR THE PROP ERTY OF THE TRUST SHALL BE DEEMED TO HAVE BEEN USED OR A PPLIED FOR THE BENEFIT OF PERSON REFERRED IN SUB SECTION ( 3) IF ANY AMOUNT IS PAID BY WAY OF SALARY, ALLOWANCES OR OTHE RWISE TO THE PERSON REFERRED TO IN SUB-SECTION (3) OUT OF THE RESOURCES OF THE TRUST OR INSTITUTION FOR SERVICES RENDERED 13 BY THAT PERSON TO SUCH TRUST OR INSTITUTION AND THE AMOUNT SO PAID IS IN EXCESS OF WHAT MAY BE REASONABLY PAID FOR SUCH SERVICES. THE ASSESSING OFFICER SHOULD GO TO FIND OUT WHETHER REASONABLE SALARY HAS BEEN PAID TO THE SPEC IFIED PERSON. THEREFORE, ASSESSING OFFICER SHALL HAVE TO CONDUCT ENQUIRY INTO THIS ASPECT AND SHOULD BRING S OME MATERIAL ON RECORD TO SHOW THAT HOW THE SALARY PAID TO THE CHAIRMAN WAS UNREASONABLE. THE ASSESSING OFFICER HA S NOT GIVEN ANY BASIS WHAT-SO-EVER FOR CONSIDERING RS . 5 LACS SALARY AS REASONABLY PAID TO THE CHAIRMAN. THE LD. CIT(APPEALS) ALSO NOTED IN HIS FINDINGS THAT ASSESS ING OFFICER HAS NOT WORKED OUT HOW HE CAME TO THE CONCL USION THAT REASONABLE SALARY PAID TO THE CHAIRMAN WOULD B E RS. 5 LACS. 18. IT IS NOT IN DISPUTE THAT THE CHAIRMAN HAS REND ERED SERVICES TO THE ASSESSEE TRUST/INSTITUTION ON WHOLE TIME BASIS. THE ASSESSEE TRUST MAINTAINED THREE INSTITU TIONS, ONE AT MOGA AND TWO AT PANCHKULA. THEREFORE, CHAIR MAN SHALL HAVE TO VISIT THESE DISTANT PLACES AND HAS AL SO TO VISIT SEVERAL GOVERNMENT ORGANIZATIONS IN CONNECTIO N WITH THE ACTIVITIES OF THE ASSESSEE TRUST. IN ASSESSMEN T YEAR UNDER APPEAL, ASSESSEE HAS PAID SALARY OF RS. 10 LA CS TO THE CHAIRMAN WHICH IS LESS THAN RS. 84,000/- PER MO NTH. SINCE THE ASSESSING OFFICER HAS NOT BROUGHT ANY MAT ERIAL ON RECORD AS TO HOW HE CAME TO HIS FINDING THAT RS. 5 LAC WAS REASONABLE SALARY, THE ADDITION COULD NOT BE MAINTAINED ON THIS REASON ALONE. FURTHER, WHEN THE 14 SALARY TO THE CHAIRMAN IS PAID LESS THAN RS. 84,000 /- PER MONTH IN ASSESSMENT YEAR 2006-07, IT COULD NOT BE S AID TO BE UNREASONABLE. IN THOSE YEARS, EVEN THE PERSONS IN GOVT. MANAGERIAL CAPACITY WOULD BE GETTING SALARY M ORE THAN RS. 85,000/- PER MONTH. THE ASSESSING OFFICER HAS NOT BROUGHT ANY EVIDENCE OF COMPARABLE INSTITUTION TO SHOW THAT ANY EXCESS SALARY HAS BEEN PAID TO THE CHAIRMAN. IN THE ABSENCE OF ANY ADEQUATE EVIDENCE OR MATERIAL ON RECORD, PARTICULARLY WHEN DURING THE CO URSE OF SEARCH, ADMITTEDLY NO INCRIMINATING MATERIAL WAS FO UND REGARDING EXCESS SALARY PAID TO THE CHAIRMAN, ADDIT ION IS WHOLLY UNJUSTIFIED. THEREFORE, WE DO NOT SUBSCRIBE TO THE VIEWS OF THE AUTHORITIES BELOW IN MAKING AND SUSTAI NING THE ADDITION. WE, THEREFORE, SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND DELETE THE ADDITION OF RS. 5 LACS. 19. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ITA 445/2913 (A.Y. 2007-08) (ASSESSEE'S APPEAL) 20. IN THIS APPEAL, ASSESSEE CHALLENGED THE ADDITIO N OF RS. 6 LACS ON ACCOUNT OF DISALLOWANCE OF SALARY PAI D TO SHRI ANOOP GARG, CHAIRMAN UNDER SECTION 13(2)(B)(C) OF THE ACT. IN THIS YEAR, CHAIRMAN HAS BEEN PAID SALA RY OF RS. 11 LACS. THE ASSESSING OFFICER FOUND RS. 5 LAC S AS REASONABLE SALARY AND MADE ADDITION OF RS. 6 LACS. THE LD. CIT(APPEALS) CONFIRMED THE ADDITION. BOTH THE PARTIES STATED THAT ISSUE IS SAME AS IS CONSIDERED IN ASSES SMENT YEAR 2006-07 IN ITA 444/2013. FOLLOWING THE REASON S FOR 15 DECISION IN ITA 444/2013 (SUPRA) IN THE CASE OF TH E SAME ASSESSEE, WE SET ASIDE THE ORDERS OF AUTHORITIES BE LOW AND DELETE ADDITION OF RS. 6 LACS. 21. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ITA 446/2014 (A.Y. 2008-09) (ASSESSEE'S APPEAL) & ITA 479/2013 (A.Y. 2008-09) (DEPARTMENTAL APPEAL) 22. BEFORE WE MAY TAKE UP THE MAIN GROUND OF APPEAL IN BOTH THE CROSS APPEALS, IT WOULD BE RELEVANT TO TAK E UP THE ISSUES WHICH HAVE ALREADY BEEN DECIDED IN OTHER APP EALS DECIDED ABOVE IN THE CASE OF THE SAME ASSESSEE. IN ASSESSEE'S APPEAL, GROUND NOS. 8, 9 AND 10 ARE GENE RAL IN NATURE. ON GROUND NOS. 6 & 7, ASSESSEE CHALLENGED THE ORDER OF LD. CIT(APPEALS) IN UPHOLDING THE ADDITION OF RS. 5,20,000/- ON ACCOUNT OF EXCESS SALARY PAID TO THE CHAIRMAN. IN THIS YEAR, ASSESSEE HAD PAID SALARY O F RS. 10,20,000/- TO THE CHAIRMAN SHRI ANOOP GARG. THE ASSESSING OFFICER ALLOWED RS. 5 LACS ONLY CONSIDERI NG IT TO BE REASONABLE AND MADE ADDITION OF RS. 5,20,000/-. THE LD. CIT(APPEALS) CONFIRMED THE ADDITION. 23. THIS ISSUE IS SAME AS HAVE BEEN CONSIDERED IN ASSESSMENT YEAR 2006-07 AND 2007-08 IN ITA 444/2013 AND 445/2013. BY FOLLOWING THE SAME REASONS FOR DE CISION IN ASSESSMENT YEAR 2006-07 AND 2007-08, WE SET ASID E THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDI TION OF RS. 5,20,000/-. THE GROUND NO. 6 AND 7 OF THE APPE AL OF ASSESSEE ARE ACCORDINGLY, ALLOWED. 16 24. ON GROUND NO. 4 IN DEPARTMENTAL APPEAL, REVENUE CHALLENGED THE DELETION OF DISALLOWANCE ON ACCOUNT OF VEHICLE RUNNING EXPENSES AND DEPRECIATION OF CAR IN TERMS OF SECTION 13(2) OF THE INCOME TAX ACT. THE ASSESSI NG OFFICER DISALLOWED 50% OF THE EXPENSES OUT OF VEHIC LE RUNNING EXPENSES AND DEPRECIATION CONSIDERING THAT THE SAME HAVE BEEN USED BY THE CHAIRMAN FOR PERSONAL PURPOSES BY USING LUXURY CARS. THE LD. CIT(APPEALS ) DELETED THE ADDITION. 25. IT IS STATED BY BOTH THE PARTIES THAT THIS ISSU E IS SAME AS IS CONSIDERED IN ASSESSMENT YEAR 2004-05 IN ITA 478/2013 (SUPRA). BY FOLLOWING THE SAME REASONS FO R DECISION IN ASSESSMENT YEAR 2004-05 ABOVE, WE DISMI SS THIS GROUND OF APPEAL OF THE REVENUE. 26. NOW WE TAKE UP THE REMAINING GROUNDS IN BOTH TH E CROSS APPEALS. 27. IN THE APPEAL OF ASSESSEE, ASSESSEE HAS CHALLEN GED ADDITION OF RS.2,68,13,920/- OUT OF THE TOTAL ADDIT ION AMOUNTING TO RS. 4 CRORES BASED UPON THE ROUGH NOTI NGS IN THE DIARY SEIZED DURING THE COURSE OF SEARCH ON GROUND NO. 1 TO 3. ON THE SAME ISSUE, THE REVENUE HAS RAI SED GROUND NOS. 1 AND 2 IN THE DEPARTMENTAL APPEAL CHALLENGING THE DELETION OF ADDITION TO THE EXTENT OF RS. 38,80,000/-. 17 28. IN THE IMPUGNED ORDER, IT IS STATED THAT TWO DI ARIES MARKED AS A-1 AND A-2 WERE FOUND AND SEIZED FROM TH E RESIDENCE OF THE CHAIRMAN OF THE ASSESSEE SOCIETY S HRI ANOOP GARG. ON COMPARING THE CONTENTS OF THE DIARY WITH THE BOOKS OF ACCOUNT IMPOUNDED DURING THE COURSE OF SEARCH AND IN THE ABSENCE OF ANY RECONCILIATION FUR NISHED, THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE W AS RECEIVING CAPITATION FEES FROM THE STUDENTS OVER AN D ABOVE THE NORMAL FEES AND IN THE BARGAIN, THE ASSESSEE HA D VIOLATED THE PROVISIONS OF SECTION 2(24)(II) OF THE INCOME TAX ACT. THE ASSESSING OFFICER BY REFERRING TO COP Y OF THE SEIZED PAPER AND LIST OF 59 STUDENTS IN THE ASSESSM ENT ORDER FOUND THAT SEVERAL RECEIPTS ARE NOT ACCOUNTED FOR BY THE ASSESSEE AND ACCORDINGLY, MADE ADDITION OF RS. 4 CRORES ON ACCOUNT OF UNDISCLOSED RECEIPTS OF THE AS SESSEE. 29. THE ADDITION WAS CHALLENGED BEFORE LD. CIT(APPE ALS) AND WRITTEN SUBMISSIONS OF THE ASSESSEE IS REPRODUC ED IN THE APPELLATE ORDER IN WHICH THE ASSESSEE BRIEFLY E XPLAINED THAT DIARIES WERE SEIZED FROM THE PREMISES OF SHRI ANOOP GARG, CHAIRMAN OF THE TRUST WHICH ARE ESTIMATED AMO UNT OF THE FEES TO BE RECEIVED FROM THE STUDENTS DURING THE WHOLE COURSE WHICH RUNS FOR FOUR YEARS IN BDS AND T HREE YEARS IN CASE OF MDS. THE FEES ARE REGULARLY RECOR DED BY THE ASSESSEE TRUST IN ITS BOOKS OF ACCOUNT. THE AS SESSEE FILED DETAILS STUDENT-WISE AS PER THE LIST MENTIONE D IN THE ASSESSMENT ORDER. DIARIES FOUND DURING THE COURSE OF SEARCH FROM THE RESIDENCE OF THE CHAIRMAN DID NOT B ELONG 18 TO THE ASSESSEE TRUST. SHRI ANOOP GARG COULD HAVE MAINTAINED ANY DIARY FOR HIS OWN CONVENIENCE, THERE FORE, IT CANNOT BE CONCLUDED THAT THE ENTIRE AMOUNT IN TH E DIARIES IS UNEXPLAINED AMOUNT AND BELONGS TO THE AS SESSEE TRUST. IT WAS EXPLAINED THAT THE ENTRIES FOUND IN THE DIARY CAN BE CATEGORIZED INTO THE FOLLOWING : I) THE STUDENTS FROM WHOM ADDITION IS MADE TWICE BY THE ASSESSING OFFICER II) THE STUDENTS WHICH ARE NOT EVEN ADMITTED DURING THE WHOLE SESSION AND WERE ONLY ESTIMATES, MADE BY THE CHAIRMAN COULD NOT BE ADDED. III) THE STUDENTS FROM WHOM FEES WERE ESTIMATED TO BE RECEIVED DURING WHOLE COURSE AND SAME IS RECEIVED AND RECORDED IN THE BOOKS OF ACCOUNT AS AND WHEN THE SAME IS RECEIVED BY THE TRUST. IV) THE STUDENTS FROM WHOM AMOUNT WAS ESTIMATED, WAS ACTUALLY RECEIVED. V) THE STUDENTS FROM WHOM AMOUNT WAS ESTIMATED WAS NOT RECEIVED FULLY AND ACTUAL AMOUNT RECEIVED WAS ONLY RECORDED IN THE BOOKS OF ACCOUNT. 29(I) IT IS ESTABLISHED FACT THAT THERE CANNOT BE ANY ADDITION ON THE BASIS OF ROUGH ENTRIES FOUND ON THE LOOSE PAPERS WHEN SUCH ENTRIES ARE JUST BUDGETARY ESTIMAT ES. 30. DUE TO HUGE COMPETITION IN THE MARKET, ANY STUD ENT COMING FOR ADMISSION USED TO BARGAIN FOR FEE STRUCT URE. THEREFORE, THE MANAGEMENT WOULD RESTRUCTURE THE FEE S PLAN DEPENDING UPON VACANT SEATS, DEMAND AND BRIGHT STUDENTS ETC. THE ASSESSING OFFICER ONLY ON THE BA SIS OF THE DIARY, MADE THE ADDITION. IT IS CLEAR FROM THE DATA 19 PROVIDED THAT MANY ENTRIES ARE RECORDED TWICE AND E VEN FOR THOSE STUDENTS WHO ARE NOT EVEN ADMITTED IN THE COLLEGE. AN AMOUNT OF RS. 2,05,93,612/- IS DULY REC ORDED IN THE BOOKS OF ACCOUNT OUT OF THE TOTAL ADDITION OF RS. 3.29 CR. AFFIDAVITS OF SOME OF THE STUDENTS WHO HA VE ALREADY LEFT THE INSTITUTE WERE FILED. IN THE DIAR Y ITSELF, THERE WERE ADDRESSES OF THE STUDENTS AND ASSESSING OFFICER SHOULD HAVE TAKEN STEPS FOR ISSUING SUMMONS AGAINST THE STUDENTS UNDER SECTION 131 OF THE ACT F OR CLARIFYING THE ENTRIES. THE ASSESSEE HAS NOT SHOWN ANY EXTRA RECEIPTS IN THE MANAGEMENT QUOTA. THE ASSESS EE TRUST HAVE 15% OF THE TOTAL SEATS AS NRI SEATS AND FEE PRESCRIBED FOR THEM WAS DULY RECORDED IN THE BOOKS OF ACCOUNT. THE ASSESSEE RELIED UPON THE ORDER OF ITA T CHENNAI BENCH IN THE CASE OF M/S SAVEETHA INSTITUTE OF MEDICAL & TECHNICAL SCIENCES VS ACIT IN ITA 99/2011 DATED 18.07.2011 WHEREIN ON SIMILAR FACTS, DURING T HE COURSE OF SEARCH, DOCUMENTS RELATING TO MANAGEMENT QUOTA SEATS WERE FOUND AND ADDITION WAS MADE ON THE BASIS OF ESTIMATION. THE TRIBUNAL HELD, THERE IS NOTHING ON RECORD TO CO-RELATE BETWEEN ANY SUCH REALITY OF LIFE TO WHICH THE ASSESSING OFFICER IS POINTING TO WHO PREV ENTED THE ASSESSING OFFICER TO RECORD THE STATEMENTS OF T HE STUDENTS OR THEIR WARDS. ON SIMPLE CONJECTURES AND SURMISES, NO ADDITION CAN BE MADE UNDER INCOME TAX ACT. WE, THEREFORE, CONFIRM ORDER OF THE LD. CIT(APPEALS ) IN DELETING THE ADDITION OF RS. 5.37 CR. IT WAS SUBMITTED THAT ADDITION CANNOT BE MADE AS PROPOSED BY THE 20 ASSESSING OFFICER. THE CHAIRMAN OF THE TRUST HAS A LREADY MADE SURRENDER IN HIS OWN CASE, THEREFORE, THE ADDI TION MADE BY THE ASSESSING OFFICER WOULD BE COVERED BY T HE SURRENDER MADE BY THE CHAIRMAN IN HIS PERSONAL CASE . 31. THE WRITTEN SUBMISSION OF THE ASSESSEE WAS FORWARDED TO THE ASSESSING OFFICER FOR FILING REMAN D REPORT IN WHICH THE ASSESSING OFFICER SIMILARLY STATED THA T DIARY WAS FOUND FROM THE RESIDENCE OF SHRI ANOOP GARG. T HE DIARY RECORD THE CAPITATION FEES RECEIVED FROM THE STUDENTS FOR WHICH NO RECONCILIATION HAVE BEEN FILED. THE A SSESSING OFFICER SCRUTINIZED THE EVIDENCES FURNISHED BY ASSE SSEE ALONGWITH SEIZED DOCUMENTS. THE ASSESSING OFFICER ENCLOSED ANNEXURE-A TO HIS REMAND REPORT WITH REGAR D TO CLARIFICATION REGARDING THE FEES. 32. THE ASSESSEE IN THE REJOINDER, REITERATED SAME SUBMISSIONS AND ALSO STATED THAT ASSESSING OFFICER IN THE REMAND REPORT HAS PARTLY GIVEN BENEFIT TO THE ASSES SEE FOR THE AMOUNT WHICH HAS EITHER ADDED TWICE OR WHICH HA S BEEN EXACTLY RECORDED BY THE ASSESSEE. THE ASSESSE E ALSO ENCLOSED ANNEXURE-2 ON THIS POINT TO SAY THAT THE A MOUNT ACCEPTED BY A.O., NO ADDITION COULD BE MADE. IT WA S ALSO SUBMITTED THAT ASSESSING OFFICER HAS NOT GIVEN ANY BENEFIT FOR THOSE STUDENTS WHO HAVE NOT TAKEN ADMISSION IN THE ASSESSEE TRUST. 33. THE LD. CIT(APPEALS) CONSIDERING THE EVIDENCE A ND MATERIAL ON RECORD ALONGWITH REMAND REPORT PREPARED A CHART OF ALL 59 STUDENTS AND REPRODUCED THE SAME IN HIS 21 FINDINGS AND GAVE BENEFIT TO THE ASSESSEE IN RESPEC T OF ITEMS MENTIONED IN COLUMN NO. 4 OF HIS CHART WITH R EGARD TO BENEFITS GIVEN BY THE ASSESSING OFFICER AFTER RE MAND REPORT AND DELETED THE ADDITION OF RS. 1,31,86,080/ - AND REST OF THE ADDITION WAS CONFIRMED. THE FINDINGS O F LD. CIT(APPEALS) IN PARA 7.4 TO 7.4.1 IN THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 7.4. I HAVE CONSIDERED THE ASSESSEE'S SUBMISSION, THE REMAND REPORT AND THE REJOINDER ON THE ISSUE. 1 HAVE ALSO PERUSED THE IMP UGNED ORDER WHEREIN THE AO HAS LISTED OUT 59 STUDENTS FROM WHOM MONEYS WAS RECEIVE D WHICH WAS FOUND NOT ACCOUNTED FOR BY THE ASSESSEE IN HIS BOOKS. THE WRITTEN SUBMISSIO N OF THE ASSESSEE OF DETAILED STUDENT- WISE SUMMARY WAS REMANDED. THE COMMENTS OF THE AO I N THE REMAND PROCEEDINGS WHERE THE STUDENT-WISE SUMMARY HAS BEEN TABULATED A ND COMMENTS OFFERED AFTER EXAMINING FROM THE SEIZED MATERIALS AND THE LEDGERS , WERE ALSO COUNTER-COMMENTED UPON BY THE ASSESSEE. IT EMERGES THAT THERE ARE INS TANCES OF DOUBLE ADDITIONS ON ACCOUNT OF DUPLICATE ENTRIES IN RESPECT OF AMOUNTS AS WELL AS IN THE NAMES OF SOME STUDENTS. THE OTHER CONTENTION OF THE ASSESSEE BEIN G THAT SOME STUDENTS HAD NOT TAKEN ADMISSION DURING THE YEAR THOUGH THE FEE AMOUNTS WE RE ENTERED, BESIDES CLAIMING THAT SOME AMOUNTS WHICH HAVE BEEN RECORDED IN THE BOOKS OUT OF THE AMOUNTS MENTIONED IN THE DIARIES ADDED BY THE AO IN THE IMPUGNED ORDER. FOR EASY REFERENCE AN ABRIDGED CHART, COMPRISING NAME OF THE STUDENT AS SERIALLY MENTIONE D IN THE ASSESSMENT ORDER ALONGWITH OUTCOME OF THE REMAND PROCEEDINGS AND CLAIM OF ASSE SSEE IS GIVEN BELOW. 1 SI. NO AS PER ASSES SMENT ORDER 2 NAME OF THE STUDENT 3 AMOUNT FOR WHICH ADDITION HAS BEEN MADE BY THE AO IN ASSESSMENT ORDER 4 BENEFIT AFTER REMAND PROCEEDINGS 5 STUDENTS WHO HAVE NOT TAKEN ADMISSION DURING THE YEAR 6 OUT OF THE BALANCE AMOUNT WHICH HAS BEEN RECORDED IN BOOKS 7 BALANCE AMOUNT LEFT WHICH IS THE ESTIMATIO N OF ANOOP GARG 1 SURAJ KUMAR BAINS 25000 25000 0 2 PRANJAL TANWAR 850000 643732 206268 3 PUNEET SEKHAR 1650000 1000000 578580 71420 4 POOJA SINGLA 500000 200000 300000 5 SHIWANGI CHANANA 540000 540000 0 22 6 MANGI AHUJA 1115000 665000 450000 7 ANUREET SANDHU 703900 300000 200000 203900 8 SHIWANGI GUPTA 1460000 460000 200000 800000 9 DIVYA MALIK 550000 550000 0 10 ISHA GUPTA 560000 560000 0 11 URVI SHARMA 650000 650000 0 12 DIVYA BATRA 350000 350000 0 13 ARSHWINDER SINGH 500000 500000 0 14 NIKITA GUPTA 300000 233200 66800 15 SUKHBANDAN KAUR 500000 500000 0 16 SOMYA BAGGA 350000 350000 0 17 SAMPADA 475000 475000 0 18 DEEPIKA AGGARWAL 1000000 500000 500000 0 19 NEE TI 1420000 710000 551080 158920 20 KIRAN DEEP KAUR 1200000 600000 346080 253920 21 SNEEKHA SHARMA 1285000 600000 640000 45000 22 RUPENDER KAUR 700000 471080 228920 23 NATASHA 1170000 170000 272080 727920 24 KANWARVEE R 900000 330000 570000 25 MEGHA SHARMA 400000 400000 0 26 SINTHIYA 485000 185000 30000 270000 27 HARPRABJOT 1200000 600000 600000 0 28 JAGATJOT KAUR 960000 234080 725920 29 TAMANNA SHARMA 500000 231080 268920 30 AAFREEN SANDHU 1000000 236080 65000 698920 31 NAVDEEP KAUR 1015000 263080 751920 32 PRIYANKA NOURIA 1350000 800000 332000 218000 33 JASKARAN 650000 550000 100000 0 34 DIVYA SINGLA 550000 550000 0 35 SOMYA BAGGA 250000 250000 0 36 DIVYA BATRA 1080000 1080000 0 37 RITU (MDS) 500000 500000 0 38 RAHUL 1256000 844000 412000 39 DEEPTI 500000 500000 0 40 SURBHI 600000 '600000 0 41 DR. RUPINDER 120000 120000 0 42 ANIL MITTAL 215000 215000 0 43 RUPINDER 200000 200000 0 23 44 PRAJAL TAIWAN 200000 200000 0 45 SHIVANI 400000 400000 0 46 AAFREEN 250000 250000 0 47 PRIYANKA 150000 150000 0 48 DR KANWALDEEP 800000 800000 0 49 NITIKA GUPTA 300000 300000 0 50 DR. ALKA 500000 500000 0 51 DEEPAK 1000000 1000000 0 52 RICHA DEWAN 225000 225000 0 53 MEHAK 300000 300000 0 54 MANASHI 600000 600000 0 55 SHIVANGI CHANNA 1160000 540000 620000 56 RUBY 440000 340000 100000 0 57 DIMPLE 560000 560000 0 58 CHANDER MOHAN 930000 930000 0 59 DR. SETHI 1300000 1300000 0 TOTAL 4,06,99,900 1,31,86,080 28,25,000 1,66,40,072 80,48,748 ON A PERUSAL OF THE ABOVE CHART, THE FOLLOWING SITU ATION EMERGES: COLUMN 4 1. SIS. 5,35,36,41,42,43,44,45,46,47,49 AND 57 PERTAIN TO DUPLICATE ENTRIES OF NAMES. FOR INSTANCE AT SI 5 AND 55 IS SHIWANGI CHANANA; AT SI 35 AND 16 IS SOMYA BAGGA ETC. 2. SLS.25, 26, 30, 32, 33, 55 AND 58 PERTAIN TO AMOUNT S RECORDED IN THE BOOKS. 3. SLS. 18,19,20,21 AND 27 PERTAIN TO DOUBLE ADDITIONS . 4. SLS. 3,7,8, 23 AND 56 WHERE PART OF THE SUM ARE NOT RECORDED. BENEFIT TO THE ASSESSEE WORKS OUT TO RS. 1,31, 86,080/-. COLUMN 5. IN RESPECT OF SIS 48, 50, 51, 52 AND 53, IT IS THE CLAIM OF THE ASSESSEE THAT THESE STUDENTS DID NOT TAKE ADMISSION DURING THE YE AR. HOWEVER THE REMAND REPORT MENTIONS SPECIFIC DATES WITH AMOUNTS AGAINST THESE STUDENTS, SO THE CONTENTION THAT THESE WERE WRITTEN ON ESTIMATE BASI S AND THE SAME HAD NOT BEEN 24 RECEIVED DOES NOT HOLD STRENGTH. THE OSTENSIBLE APP ROVED REGISTERED LIST OF STUDENTS WERE PART OF THE ADDITIONAL EVIDENCE BUT T HE SAME ARE IN-HOUSE LIST, SO NO CREDENCE CAN BE GIVEN. COLUMN 6. THE SUMS IN THIS COLUMN ARE CLAIMED BY THE ASSESSEE AS RECORDED IN THE BOOKS. HOWEVER ON REMAND, THE AO HAS AFTER DUE VERI FICATION, CATEGORICALLY STATED THAT THE DATES APPEARING IN THE SEIZED BOOKS DO NOT EITHER MATCH WITH THE LEDGER ACCOUNTS. HENCE THESE ASSERTIONS BY THE ASSE SSEE ARE NOT ACCEPTABLE. COLUMN 7. THE SUMS IN THIS COLUMN ARE CLAIMED BY THE ASSESSEE AS ESTIMATIONS OF ANOOP GARG. HOWEVER ON REMAND, THE AO HAS AFTER DUE VERIFICATION, CATEGORICALLY STATED THAT THE AMOUNTS APPEARING IN THE SEIZED DAIRIES ARE NOT REFLECTED IN THE BOOKS. ALSO CLAIMING THESE TO BE E STIMATIONS ARE JUST BALD ASSERTIONS BY THE ASSESSEE, WHICH ARE NOT ACCEPTABL E. 7.4.1 IN THE FINAL ANALYSIS, THE ASSESSEE IS GIVE N THE BENEFIT OF RS. 1,31,86,080/- ONLY. THE BALANCE ADDITION MADE IS THEREFORE CONFIRMED. T HE ASSESSEE PARTLY SUCCEEDS HERE. 34. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. HE HAS SUBMITTED THAT DIARY IN QUESTION WAS FOUND FROM THE RESIDENCE OF THE CHAIRMAN OF THE ASSESSEE TRUST SHR I ANOOP GARG AND THE SAME BELONGS TO HIM ONLY. IT WA S WRITTEN IN THE HANDWRITING OF SHRI ANOOP GARG. SHR I ANOOP GARG HAS MADE SURRENDER AMOUNT OF RS. 75,70,684/- FOR ASSESSMENT YEAR 2008-09 UNDER CONSIDERATION IN HIS INDIVIDUAL RETURN WHICH HAS AL SO BEEN ACCEPTED BY THE DEPARTMENT. THE SPECIMEN OF THE DI ARY IS FILED AT PAGE 15 OF THE PAPER BOOK. PB-2 IS THE LI ST OF COUNSELLING OF GENERAL CATEGORY HELD ON 13.07.2007. PB-11 IS THE APPROVED LIST OF ADMISSIONS FOR ASSESSMENT Y EAR 25 UNDER APPEAL. PB-1 IS THE LIST OF 60 STUDENTS ADMI TTED IN ACADEMIC SESSION 2007-08 AS PER COUNSELLING DONE FROM13.07.2007 TO 27.09.2007. ON THE DATE OF SEARC H, THERE WERE NO ADMISSIONS OF THE STUDENTS. NONE OF THE STUDENTS OR THEIR PARENTS HAVE BEEN EXAMINED BY ASSESSING OFFICER. PROTECTIVE ASSESSMENT WAS MADE IN THE CASE OF SHRI ANOOP GARG OF THE SAME AMOUNT WHICH CL EARLY SHOW THAT THE DIARY ONLY BELONG TO THE CHAIRMAN SHR I ANOOP GARG. HE HAS SUBMITTED THAT LD. CIT(APPEALS) CORRECTLY DELETED THE ADDITIONS WHICH PERTAIN TO DU PLICATE ENTRIES OR THE AMOUNTS RECORDED IN THE BOOKS OF ACC OUNT. HE HAS SUBMITTED THAT WHEN STUDENTS HAVE NOT BEEN ADMITTED IN THE INSTITUTION OF THE ASSESSEE TRUST, THERE IS NO QUESTION OF CHARGING ANY FEES. THE AMOUNTS ALRE ADY RECORDED IN THE BOOKS OF ACCOUNT SHOULD NOT BE ADDE D IN THE HANDS OF THE ASSESSEE. HE HAS SUBMITTED THAT O UT OF AMOUNT OF RS. 1,66,40,072/- OF COLUMN 6 OF THE CHAR T PREPARED BY LD. CIT(APPEALS), RS. 1,27,73,280/- WAS RECORDED IN THE BOOKS OF ACCOUNT TILL THE TIME OF T HE SEARCH WHICH IS EVIDENT FROM THE SEIZED RECORD WHIC H IS ALSO CLEAR FROM COLUMN NO. 6 OF THE CHART PREPARED ON THE BASIS OF THE SEIZED MATERIAL AND RS. 38,66,792/- IS THE AMOUNT WHICH WAS RECORDED IN THE BOOKS OF ACCOUNT A FTER THE DATE OF SEARCH WHICH IS CLEAR FROM COLUMN 10 OF THE CHART PREPARED AND FILED ON RECORD. HE HAS, THEREF ORE, SUBMITTED THAT THE ENTIRE ADDITION WAS WHOLLY UNJUS TIFIED. THE ENTRIES IN THE SEIZED DIARY ARE THE ESTIMATED A MOUNT OF THE FEES TO BE RECEIVED FROM THE STUDENTS FOR WH OLE OF 26 THE COURSE WHICH RUNS FOR 4 YEARS IN CASE OF BDS AN D THREE YEARS IN CASE OF MDS. HE HAS ALSO SUBMITTED THAT THE DATES CORRESPONDING TO THE ENTRIES IN THE DIARI ES ARE MOSTLY FOR THE MONTH OF JULY,2007 AND AUGUST,2007. SAMPLE COPIES OF THE PAGES ARE FILED ON RECORD BUT THE COUNSELLING OF THE STUDENTS TO BE ADMITTED FOR THE COURSE WERE ACTUALLY TILL SEPTEMBER,2007. HE HAS SUBMITTE D THAT AFTER COMPLETION OF THE COUNSELLING SESSION AND ON RECEIPT OF THE APPROVED LIST, THE STUDENTS WERE ADMITTED. HE HAS, THEREFORE, SUBMITTED THAT ENTIRE ADDITION IS UNJUST IFIED IN THE HANDS OF THE ASSESSEE TRUST. 35. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW. 36. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE REV ENUE IS IN APPEAL CHALLENGING THE DELETION OF ADDITION OF R S. 38,80,000/-. THE LD. COUNSEL FOR THE ASSESSEE FILE D THE DETAILS OF THE STUDENTS FOR WHICH DEPARTMENT IS IN APPEAL AND THE NAMES OF THOSE STUDENTS ARE APPEARING IN TH E CHART PREPARED BY LD. CIT(APPEALS) AND REPRODUCED A BOVE IN HIS FINDINGS AND SUCH PERSONS/STUDENTS ARE MENTI ONED AT S.NO. 7, 18, 19, 20, 21, 23, 27 AND 32. THE LD. CIT(APPEALS) MENTIONED THAT AS PER COLUMN NO. 4, EI THER THESE WERE DOUBLE/DUPLICATE ADDITIONS, PART OF THE SUM NOT RECORDED OR THAT AMOUNT RECORDED IN THE BOOKS O F ACCOUNT. THE LD. CIT(APPEALS) DELETED THE ADDITION OF RS. 1,31,86,080/- ON THIS ISSUE PERTAINING TO AMOUNT 27 MENTIONED IN COLUMN 4 OF THE CHART PREPARED BY LD. CIT(APPEALS) AND REPRODUCED ABOVE. THE LD. CIT(APP EALS) DELETED THE ENTIRE ADDITION OF RS. 1.31 CR, HOWEVER , REVENUE HAS ACCEPTED DELETION OF SUBSTANTIAL ADDITI ON BUT PREFERRED TO CHALLENGE THE DELETION OF ADDITION OF RS. 38,80,000/- ONLY, ON THE SAME REASONS ON WHICH SUBSTANTIAL ADDITION HAS BEEN DELETED. THERE IS, THEREFORE, NO PROPRIETY IN FILING DEPARTMENT APPEAL ON SAME ISSUE IN PARTS . THE REASONS FOR DELETION OF ADDITION IS SAME FOR WHICH HUGE ADDITION WAS DELETED BY LD. CIT(APPEALS) AND THAT TOO ON THE BASIS OF COMMENTS RECEIVED FROM THE ASSESSING OFFICER DURING REMAND PROCEEDINGS. THE LD. DR DURING THE COURSE OF ARGUM ENTS, HAVE NOT BEEN ABLE TO POINT OUT ANY INFIRMITY IN TH E ORDER OF LD. CIT(APPEALS) IN DELETING THE ADDITION OF RS. 38,80,000/-. ON GOING THROUGH THE MATERIAL ON RECO RD, WE FIND THAT LD. CIT(APPEALS) WAS JUSTIFIED IN DELETIN G THE ADDITION IN RESPECT OF DUPLICATE ENTRIES/DOUBLE ADD ITIONS MADE BY THE ASSESSING OFFICER AND PART OF THE AMOUN T WHICH WAS NOT RECORDED. 36(I) FROM THE ABOVE DISCUSSION IN THE LIGHT OF TH E FINDINGS OF THE LD. CIT(APPEALS), WE DO NOT FIND AN Y JUSTIFICATION TO INTERFERE WITH THE ORDER OF LD. CI T(APPEALS). THE DEPARTMENTAL APPEAL, THUS, STANDS DISMISSED ON GROUND NOS. 1 & 2. 37. AS FAR AS THE APPEAL OF THE ASSESSEE IS CONCERN ED, THE ASSESSEE ON GROUND NOS. 1 TO 3, CHALLENGED THE ADDI TION OF 28 RS. 2,68,13,920/- ON THE SAME ISSUE BASED ON ROUGH NOTINGS IN THE SEIZED DIARIES. IT IS NOT IN DISPUT E THAT DIARY IN QUESTION WAS RECOVERED FROM THE RESIDENCE OF SHRI ANOOP GARG WHICH CONTAINED ENTRIES IN HIS OWN WRITI NG. THE STATEMENT OF SHRI ANOOP GARG WAS RECORDED ON 15.07.2008 I.E. THE DATE OF SEARCH. COPY OF THE SA ME IS PLACED ON RECORD. SEVERAL QUESTIONS WERE ASKED TO HIM DURING HIS EXAMINATION SEEKING EXPLANATION WITH REG ARD TO ENTRIES CONTAINED IN THE DIARY. HE HAS, HOWEVER, D ID NOT MAKE ANY STATEMENT AGAINST THE ASSESSEE TRUST WITH REGARD TO RECEIPT OF ANY CAPITATION FEES/EXTRA FEES RECEIVED ON BEHALF OF THE ASSESSEE TRUST. ACCORDING TO THE STATEMENT OF THE ASSESSEE, THE ENTRIES FOUND IN THE SEIZED DIARY ARE THE ESTIMATED AMOUNT OF FEES TO BE RECEIV ED FROM THE STUDENTS DURING THE WHOLE COURSE BECAUSE THE CO URSE RUNS FOR THREE TO FOUR YEARS. THE ASSESSEE IN THE PAPER BOOK HAS FILED THE ADMISSION COUNSELLING HELD BY TH E UNIVERSITY FOR ADMISSION IN THE INSTITUTION OF THE ASSESSEE TRUST AND ALSO FILED APPROVED LIST OF THE STUDENTS TO BE ADMITTED. THE COUNSELLING HAS BEEN HELD FROM 13.07 .2007 TO 27.09.2007. THUS, THE FEES WOULD HAVE BEEN RECE IVED BY THE ASSESSEE TRUST AFTER APPROVAL OF THE LIST BY THE UNIVERSITY. THERE IS NO QUESTION OF RECEIPT OF ANY FEES BY THE ASSESSMENT TRUST LATER ON I.E. DATE OF SEARCH 15.07.2008. THE DATE OF SEARCH IS 15.07.2008 AND AS SUCH REVENUE SHOULD HAVE PROVED THE NEXUS OF THE ENTRIES CONTAINED IN THE SEIZED DIARY WITH THE AMOUNT RECEI VED BY THE ASSESSEE TRUST. NEITHER IN THE STATEMENT OF SH RI 29 ANOOP GARG NOR IN THE SEIZED DIARY, IT IS MENTIONED ANYWHERE IF ASSESSEE TRUST HAS RECEIVED ANY CAPITAT ION FEES/OWN MONEY OR EXTRA FEES AFTER THE ADMISSION OF THE STUDENTS AFTER COMPLETION OF LAST COUNSELLING ON 27.09.2007. ON THE DATE OF THE SEARCH, THERE WERE NO ADMISSIONS OF ANY STUDENTS, THEREFORE, CONTENTION O F ASSESSEE APPEARS TO BE JUSTIFIED THAT THE CHAIRMAN OF THE ASSESSEE TRUST SHRI ANOOP GARG MIGHT HAVE RECORDED ESTIMATED AMOUNT OF THE FEES TO BE RECEIVED FROM TH E STUDENTS DURING WHOLE COURSE. 37(I) THE SUBMISSIONS OF THE ASSESSEE HAVE ALSO B EEN CORROBORATED BY THE FACT THAT THE LD. CIT(APPEALS) AFTER CALLING FOR THE REMAND REPORT FROM THE ASSESSING OF FICER ALSO FOUND THAT IN THE SEIZED DIARY, THERE WERE LAR GE NUMBER OF DUPLICATE ENTRIES OF THE NAMES AND DOUBLE ADDITIONS MADE IN THE DIARY ITSELF. THE SEIZED DIA RY ALSO PERTAINED TO THE AMOUNTS RECORDED IN THE BOOKS OF A CCOUNT OR WHERE PART OF THE SUM ARE NOT RECORDED. THEREFO RE, LD. CIT(APPEALS) FOUND THAT ADDITION OF RS. 1.31 CR IS WHOLLY UNJUSTIFIED. THUS, THE RELIABILITY OF THE SEIZED D IARY ITSELF IS IN DOUBT THAT THE SAME PERTAIN TO THE ACTIVITIES OF THE ASSESSEE TRUST OR HAVE GIVEN ACTUAL PICTURE OF THE ALLEGED AMOUNT RECEIVED BY THE ASSESSEE TRUST. THE FINDING OF FACT RECORDED BY THE LD. CIT(APPEALS) IN DELETING SUBSTA NTIAL ADDITION ITSELF CASTS DOUBT ON THE AUTHENTICITY AND RELIABILITY OF THE RECOVERY OF THE DIARY IN QUESTIO N. FURTHER, THE AUTHORITIES BELOW HAVE NOT EXAMINED AN Y 30 STUDENT OR THEIR PARENT, EITHER DURING THE COURSE O F SEARCH OR AT THE ASSESSMENT STAGE TO CORROBORATE THE ENTRI ES STATED TO BE MENTIONED IN SEIZED DIARY. THUS, THE ENTRIES CONTAINED IN THE DIARY ITSELF ARE NOT CORROBORATED BY ANY MATERIAL OR EVIDENCE ON RECORD. THE LD. CIT(APPEAL S) ALSO IN HIS FINDINGS IN COLUMN NO. 5, AS REPRODUCED ABOV E, HAS MENTIONED THAT THE STUDENTS WHO HAVE NOT TAKEN ADMISSION DURING THE YEAR BUT MAINTAINED ADDITION O F RS. 28,25,000/- ON THE REASONS THAT THE REMAND REPORT MENTIONED SPECIFIC DATES WITH AMOUNT AGAINST THE STUDENTS. THE FINDINGS OF THE AUTHORITIES BELOW AR E WHOLLY UNJUSTIFIED BECAUSE WHEN THE STUDENTS WHOSE NAMES H AVE BEEN MENTIONED IN COLUMN NO. 5 AS PER THE SEIZED DI ARY HAVE ADMITTEDLY NOT TAKEN ADMISSION IN THE INSTITUT ION OF THE ASSESSEE TRUST, WHERE IS THE QUESTION OF THOSE STUDENTS IN PAYING ANY AMOUNT BY WAY OF CAPITATION FEES OR FEE TO THE ASSESSEE TRUST. THEREFORE, THERE WAS NO JUSTIFICATION TO MAKE ADDITION OF SUCH STUDENTS WHO HAVE NOT TAKEN ADMISSION IN THE INSTITUTION OF THE ASSES SEE TRUST MERELY BECAUSE THEIR NAMES WERE MENTIONED IN THE SEIZED DIARY. THE ADDITION OF RS. 28,25,000/- IS L IABLE TO BE DELETED. 37(II) THE LD. CIT(APPEALS) (IN COLUMN NO. 6) HAS CONFIRMED THE ADDITION OF RS. 1,66,40,072/- IN RES PECT OF THE AMOUNT, OUT OF THE BALANCE AMOUNT WHICH HAVE B EEN RECORDED IN THE BOOKS.. WHEN THE FINDINGS OF THE LD. CIT(APPEALS) BASED ON THE REMAND REPORT OF THE ASSE SSING 31 OFFICER SAYS THAT THE AMOUNT OF RS.1.66 CR HAS BEEN RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE TR UST, WHERE IS A QUESTION OF MAKING ADDITION AGAINST THE ASSESSEE TRUST. THE LD. CIT(APPEALS), ON THE BASIS OF THE REMAND REPORT NOTED THAT THE DATES APPEARING IN THE SEIZED DIARY DO NOT MATCH WITH THE LEDGER ACCOUNT, THEREFORE, ADDITION WAS MADE. AS IS NOTED ABOVE, S INCE SEIZED DIARY WAS THE ESTIMATED FIGURES MADE BY THE CHAIRMAN SHRI ANOOP GARG, THEREFORE, THERE IS NO QU ESTION OF MATCHING THE DATES WITH THE ENTRIES CONTAINED IN THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE . SINCE THE DIARY WAS FOUND FROM THE POSSESSION OF SH RI ANOOP GARG, THEREFORE, IT IS PROBABLE THAT THE SAME MAY BE HIS PERSONAL NOTINGS WHICH MAY NOT BE DIRECTLY CONN ECTED WITH THE ASSESSEE'S AFFAIRS. IT IS NOT EXPLAINED AS TO HOW THE ENTRIES CONTAINED IN THE DIARY RELATE TO THE AS SESSEE TRUST. THE ENTRIES CONTAINED IN THE DIARY RELATES TO FOUR TYPES OF ENTRIES OF THE FEES ON WHICH SUBSTANTIALLY THE LD. CIT(APPEALS) DELETED THE ADDITION AND OTHERS ALSO L IABLE TO BE DELETED. THE ASSESSEE ALSO FILED AFFIDAVIT OF S OME OF THE STUDENTS BEFORE THE AUTHORITIES BELOW STATING THAT THEY HAVE NOT PAID ANY AMOUNT AS MENTIONED IN THE DIARY TO THE ASSESSEE TRUST BUT NONE OF THE DEPONENTS HAVE BEEN EXAMINED BY THE AUTHORITIES BELOW. WHATEVER NRI STUDENTS WERE ADMITTED, THEIR FEES WAS FOUND RECORD ED IN THE BOOKS OF ACCOUNT. SINCE SOME OF THE STUDENTS WE RE NOT ADMITTED, THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN ADDING THE AMOUNT AGAINST THEIR NAMES WHOSE NAMES W ERE 32 MENTIONED IN THE DIARY. IF THE DATES OF THE FEES RE CORDED IN THE BOOKS OF ACCOUNT DO NOT MATCH WITH THE DIARY, T HE AUTHORITIES BELOW FAILED TO EXPLAIN AS TO FROM WHER E THE ASSESSEE HAS RECEIVED THE FEES AND HOW THEY HAVE BE EN RECORDED IN THE BOOKS OF ACCOUNT. THE ASSESSEE HAS PREPARED A CHART BASED ON THE SEIZED RECORD TO SHOW THAT OUT OF AMOUNT OF RS. 1.66 CR, THE ASSESSEE HAS RECO RDED THE AMOUNT OF RS. 1,27,73,280/- IN THE BOOKS OF ACC OUNT TILL THE TIME OF SEARCH AND THE BALANCE OF RS. 38,6 6,792/- HAVE BEEN RECORDED IN THE BOOKS OF ACCOUNT AFTER TH E DATE OF SEARCH. THEREFORE, THE AMOUNTS, EVEN IF DO NOT MATCH WITH THE SEIZED DIARY, WHEN HAVE BEEN RECORDED IN T HE REGULAR BOOKS OF ACCOUNT EVEN PRIOR TO THE SEARCH, THERE WAS NO JUSTIFICATION FOR THE AUTHORITIES BELOW TO M AKE THE ADDITION OF RS. 1,66,40,072/-. SIMILARLY, THE STUD ENTS WHO HAVE NOT ADMITTED TO THE ASSESSEE TRUST, THERE IS NO QUESTION OF RECEIPT OF FEES OF RS. 28,25,000/- FROM THEM, THEREFORE, ADDITION OF RS. 28,25,000/- WAS WHOLLY UNJUSTIFIED. FOR THE SAKE OF ARGUMENT, EVEN IF IT IS BELIEVED THAT SHRI ANOOP GARG HAS RECEIVED ANY ALLE GED AMOUNT BUT THERE IS NO EVIDENCE ON RECORD TO PROVE THAT SHRI ANOOP GARG HAS HANDED OVER THE ALLEGED AMOUNT TO THE ASSESSEE TRUST. 37(III) IT MAY ALSO BE NOTED HERE THAT SHRI ANOO P GARG HAS SURRENDERED RS. 75.80 LACS IN HIS INDIVIDUAL CA SE AND THIS AMOUNT WAS ACCEPTED BY THE REVENUE DEPARTMENT IN HIS CASE FOR ASSESSMENT YEAR UNDER APPEAL. IN THE APPEALS 33 OF SHRI ANOOP GARG WHICH WERE HEARD TOGETHER WITH T HESE APPEALS, THE LD. COUNSEL FOR THE ASSESSEE SEEK PERM ISSION TO WITHDRAW THE SAME APPEALS AND VIDE SEPARATE ORDE RS, THE SAME HAVE BEEN DISMISSED AS WITHDRAWN. THE AMO UNT OF RS. 75.80 LACS, ONCE ACCEPTED BY SHRI ANOOP GARG OF HIS OWN, THEREFORE, SAME CAN NOT COME TO THE ASSESSEE I N ANY MANNER AND THEREFORE, THE BALANCE AMOUNT OF RS. 80. 48 CR IN THE HANDS OF THE ASSESSEE IN RESPECT OF COLUMN N O. 7 WHICH IS BALANCE AMOUNT LEFT, WHICH IS THE ESTIMATI ON BY SHRI ANOOP GARG, COULD NOT BE ADDED IN THE HANDS OF THE ASSESSMENT TRUST. THIS AMOUNT COULD ONLY BE CONSID ERED IN THE CASE OF SHRI ANOOP GARG, CHAIRMAN OF THE ASS ESSEE TRUST AND SINE SURRENDERED AMOUNT OF RS. 75.80 LACS HAS ALREADY BEEN MADE IN THE CASE OF CHAIRMAN AND HIS APPEALS HAVE BEEN DISMISSED SEPARATELY, THERE WAS N O JUSTIFICATION TO MAKE DOUBLE ADDITION OF RS. 80.48 LACS IN THE HANDS OF THE ASSESSEE TRUST. 38. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND ABOVE DISCUSSION, WE DO NOT FIND ANY JUSTIFICATION FOR LD. CIT(APPEALS) TO SUSTAIN THE A DDITION OF RS. 2,68,13,920/- OUT OF THE TOTAL ADDITION OF RS. 4 CR. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF AUTHORITIE S BELOW AND DELETE THE ENTIRE ADDITION. 39. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED ON GROUND NOS. 1, 2 AND 3. 34 40. ON GROUND NOS. 4 AND 5, THE ASSESSEE CHALLENGED THE ADDITION OF RS.1.14 CR OUT OF TOTAL ADDITION OF RS. 1.67 CR UNDER SECTION 68 OF THE ACT. SIMILARLY, REVENUE ON GROUND NO. 3 IN DEPARTMENTAL APPEAL CHALLENGED THE DELETIO N OF ADDITION OF RS. 53 LACS ON ACCOUNT OF UNEXPLAINED C ASH CREDIT UNDER SECTION 68 OF THE ACT. 41. BRIEF FACTS ARE THAT AS PER PAGE 58 OF ANNEXURE A-1 SEIZED FROM THE RESIDENCE OF SHRI ANOOP GARG, THERE IS A DETAIL OF OUTSTANDING LOANS PENDING. AT THE TOP OF THIS PAGE WORD DENA HAS BEEN WRITTEN IN HINDI. THE SC ANNED COPY OF THE SAME IS REPRODUCED IN THE ASSESSMENT OR DER. IN ADDITION TO THIS, AS PER PAGE 62 OF ANNEXURE A-2 , THERE IS A DETAIL WRITTEN REGARDING LOANS FROM SOME PERSO NS. THIS PAPER CONTAINS THE SAME KIND OF ENTRIES, SCANN ED COPY OF WHICH IS ALSO REPRODUCED IN THE ASSESSMENT ORDER. THE NAMES IN THE SEIZED PAPER ARE MENTIONED AS JATT ANA, ANAND, SURBEH, CHAHAL, TOOR, AMBLA, PUDDA, GABBA, SARVEEN AND BANK. THE CHAIRMAN OF THE ASSESSEE TRU ST WAS CONFRONTED WITH THESE ENTRIES AND IN ANSWER TO THE QUESTION TO EXPLAIN THE ENTRY, HE HAS STATED THAT R S. 15 LACS WAS RECEIVED IN CASH FROM DR. BHALLA AND LATE R ON, CASH WAS RETURNED BACK. THE AMOUNT WAS TAKEN ON RE TURN BASIS. THERE IS NO ENTRY OF DR. BHALLA. RS. 4 LAC S IN CASH. 6 LACS THROUGH CHEQUE WERE RECEIVED FROM DR. JATTAN A BUT THIS ENTRY IS REFLECTED IN THE BOOKS. THE ASSESSEE ALSO FILED EXPLANATION AT ASSESSMENT STAGE TO SAY THAT T HESE AMOUNTS ARE IN THOUSANDS AND PERTAIN TO PETTY JOB W ORK. 35 THE ASSESSING OFFICER NOTED THAT IN CASE OF JATTANA , RS. 4 LACS WAS RECEIVED IN CASH AND RS. 6 LACS THROUGH CH EQUE, BUT FULL AMOUNT IS NOT RECORDED IN THE BOOKS OF ACC OUNT. THE ASSESSEE ALSO FAILED TO PROVE IDENTITY OF THE C REDITOR, CREDIT WORTHINESS AND ACCORDINGLY, MADE ADDITION OF RS. 1.67 CR UNDER SECTION 68 OF THE ACT. 42. THE ASSESSEE CHALLENGED ADDITION BEFORE LD. CIT(APPEALS) AND WRITTEN SUBMISSION OF THE ASSESSEE IS REPRODUCED IN THE APPELLATE ORDER IN WHICH ASSESSEE BRIEFLY EXPLAINED THAT THESE ENTRIES INCLUDES FEW L OANS WHICH WERE TAKEN BY ASSESSEE TRUST AND HAVE BEEN RECORDED IN THE BOOKS OF ACCOUNT AND REST WERE PLAN NED TO AVAIL IN NEAR FUTURE BUT WAS NEVER DONE. THE AMOUN TS HAVE BEEN RECEIVED THROUGH CHEQUES AND HAVE BEEN ENTERED INTO THE BOOKS OF ACCOUNT. HE HAS RELIED U PON DECISION OF GUJRAT HIGH COURT IN THE CASE OF RADHE DEVELOPERS INDIA LTD. 329 ITR 1 IN WHICH IT WAS HEL D THAT WHERE THE ADDITION MADE ON THE BASIS OF FIGURES IN THE LOOSE PAPER HAS BEEN DELETED BY THE TRIBUNAL AFTER APPRECIATING EVIDENCE ON RECORD FOUND THAT THE SAID FIGURES WERE PROJECTED ESTIMATES AND NO ACTUAL TRANSACTIONS HAD TAKEN PLACE AND NO EVIDENCES ON RE CORD TO INDICATE TO CONTRARY IS FOUND, NO INTERFERENCE I S CALLED FOR IN THE ORDER OF THE TRIBUNAL. HE HAS ALSO REL IED UPON DECISION OF THE GUJRAT HIGH COURT IN THE CASE OF CI T V MAULIK KUMAR K. SHAH 307 ITR 137 IN WHICH IT WAS HE LD THAT WHEN NO OTHER EVIDENCE HAD BEEN SHOWN TO JUST IFY 36 THAT THESE AMOUNTS WERE RECEIVED FROM THE PURCHASER S, THE CONCURRENT FINDING WAS THAT ON THE BASIS OF THE SE LOOSE PAPERS, NO ADDITION WAS JUSTIFIED. THE ASSE SSEE ALSO FILED EXPLANATION REGARDING DETAILS NOTED IN T HESE DIARIES WHICH IS NOTED AT PAGE 19-20 OF THE APPELLA TE ORDER IN WHICH THE ASSESSEE EXPLAINED THAT AS REGARDS THE ENTRY OF JATTANA, ANAND AND PUDDA, THESE WE4RE UNSECURED LOANS TAKEN BY THE ASSESSEE TRUST FOR ITS OBJECTIVE S WHICH ARE REFLECTED IN THE BOOKS OF ACCOUNT AND COULD BE VERIFIED FROM THE LIST OF UNSECURED LOANS WHICH IS PART OF T HE DULY AUDITED BALANCE SHEET AS ON 31.03.2007. IN RESPECT OF BANK, IT WAS STATED THAT THE SAID ENTRY WAS JUST TH E AMOUNT OF LOAN INSTALLMENT INCLUDING INTEREST FOR T HE LOAN TAKEN BY ASSESSEE TRUST WHICH WERE DUE TO BE PAID T O THE BANK. THIS CAN BE VERIFIED FROM THE BALANCE SHEET AS ON 31.03.2007 AND FOR THE REST OF THE PERSONS, IT IS E XPLAINED THAT THE SAID ENTRIES ARE JUST ESTIMATION AND NOTHI NG WAS TAKEN FROM THESE PERSONS. IT WAS ALSO SUBMITTED TH AT PROVISIONS OF SECTION 68 WOULD APPLY WHEN THERE IS ENTRY IN THE BOOKS OF ACCOUNT AND SAME IS UNEXPLAINED. IN THE CASE OF THE ASSESSEE TRUST, WHATEVER LOANS WERE TAK EN, WERE ENTERED IN THE BOOKS OF ACCOUNT, THEREFORE, AD DITION COULD NOT BE MADE AND FOR REST, SECTION 68 WOULD NO T APPLY. THE ASSESSING OFFICER ALSO FILED HIS REMAND REPORT EXPLAINING THE SAME FACTS AS WERE NOTED IN THE ASSE SSMENT ORDER. THE ASSESSEE IN THE REJOINDER REITERATED TH E SAME FACTS. 37 43. THE LD. CIT(APPEALS) CONSIDERING THE SUBMISSION S OF THE ASSESSEE AND MATERIAL ON RECORD, DELETED THE AD DITION OF RS. 53 LACS IN RESPECT OF THE LOAN PERTAINING TO THE BANK. THE CERTIFICATE OF THE BANK WAS FILED, HOWEVE R FOR THE REST OF THE AMOUNT, ADDITION WAS CONFIRMED. FIN DINGS OF THE LD. CIT(APPEALS) IN PARA 8.4 OF THE APPELLAT E ORDER ARE REPRODUCED AS UNDER : 8.4 . I HAVE CONSIDERED THE SUBMISSIONS OF THE AS SESSEE, THE REMAND REPORT AS WELL AS THE REJOINDER. I FIND THAT PARA 5.3 OF T HE IMPUGNED ORDER DEALS WITH THIS ISSUE WHEREIN SCANNED COPIES OF THE TWO PAGES HAVE BEEN PLACED. THESE TWO PAPERS LARGELY CORRESPOND TO EACH OTHER. ON CONFRON TING, THE CHAIRMAN OF THE ASSESSEE- TRUST IN THE STATEMENT ORDED U/S 132( 4) ADMITTED TO CASH RECEIPTS FROM ONE DR BHALLA OF RS. 15 LAKHS AND RS. 10 LAKHS FROM DR JATANA OF WHICH RS. 6 LAKHS WAS IN CHEQUE AND RS. 4 LAKHS IN CASH. THE CONTENTS THEREOF THEREFORE CANNOT BE DISMISSED AS ROUGH NOTINGS OR E STIMATES, AS THEY CORROBORATE TO A LARGE EXTENT WITH THE STATEMENT U/ S 132(4) REFERRED TO ABOVE AND DATES AND NAMES AS WELL AS THE FIGURES AR E UNMISTAKABLE. THE ASSESSEE IN THE COURSE OF APPEAL HAS FURTHER ADVANC ED THAT THE ENTRIES WERE FUTURE BUDGETARY PROJECTIONS FOR DEVELOPMENT OF THE INSTITUTION FOR WHICH LOANS WERE BEING TAKEN/FUNDS PROPOSED TO BE RAISED AND THAT SUCH LOANS WERE MOSTLY RECEIVED IN CHEQUES AND WERE DULY RECORDED. THIS ARGUMENT OF THE ASSESSEE THAT SOME OF THE FIGURES REPRESENT ESTIMAT ES CANNOT BE ACCEPTED. I AM AFRAID THESE ASSERTIONS APPEAR TO MY MIND TO BE AFTER THOUGHTS TO FIT INTO THE JUDICIAL DECISIONS BEING RELIED UPON. DURING THE REMAND PROCEEDINGS THE AO HAD VEHEMENTLY STATED THAT THE CLAIM OF THE ASSESSEE THAT AN AMOUNT OF RS. 82,00,000/- O UT OF THE ADDITION OF RS. 1.67 CRORES HAD BEEN RECEIVED AND DULY RECORDED SHOULD NOT BE ACCENTED AS NO CORROBORATIVE DOCUMENTARY EVIDENCE HAD BEEN FILED. 1 FIND THAT THE ASSESSEE IN PB 249-269 HAD FURNISHED COPY OF BA LANCE SHEET OF BRS INSTITUTE OF MEDICAL SCIENCES FOR AY 2007-08 WHEREI N IN AT PAGE 151 IN THE LIST OF UNSECURED LOANS AS ON 31.3.2007, THE NAMES OF DR. (MRS)BHUPINDER KAUR PADDA (RS 18,00,000/0; JATANA (RS. 6,00,000/-) AND ANAND (RS. 5,00,000/-) ARE REFLECTED. THESE THREE NAMES AS WEL L AS THE AMOUNTS 38 CORRESPOND TO THE NAMES IN THE SEIZED DOCUMENTS THO UGH IN THE CASE OF JATANA, THE FIGURE IN THE DOCUMENT IS RS. 10 LAKHS INSTEAD OF RS. 6 LAKHS. SIMILARLY IN THE LIST OF SECURED LOANS AT PAGE 151, THERE IS AN ENTRY OF PNB- TL-293800NF00191380 (TL) AND BANK INTEREST IS ALSO FOUND DEBITED IN THE P/L ACCOUNT. A BANK CERTIFICATE DATED 01.02.2013 OF PNB INTIMATING THE AVAILING OF TERM LOAN OF RS. 4.50 CRORES (ACCOUNT N O: 293800NF00191380) OPENED ON 17.5.2005 WAS ALSO FURNISHED, WHICH MENTI ONS REPAYMENT IN 10 HALF YEARLY INSTALMENTS OF RS. 45 LAKHS EACH, INTER EST PAYABLES AS AND WHEN LEVIED. THIS CERTIFICATE OF THE BANKING INSTITUTION IS TAKEN ON RECORD, AS THERE IS NO REASON NOT TO DOUBT ITS AUTHENTICITY . IT IS ALSO THE CONTENTION OF THE ASSESSEE THAT THE INTEREST LIABIL ITY ESTIMATED WAS RS. 8 LAKHS. THUS, THE NAMES/BANK AND FIGURE IN THE AUDIT ED BALANCE SHEET OF THE ASSESSEE COMPANY CORRESPOND TO THE EXTENT STATED AB OVE. HOWEVER THE OTHER SIDE OF THE COIN IS THAT THE IDENTITY, GENUINENESS OF THE TRANSACTION AS WELL AS THE CREDITWORTHINESS OF THE PERSONS FROM THE LOANS HAVE BEEN TAKEN ARE ALSO REQUIRED TO BE EXPLAINED BY THE ASSESSEE. NO DOCUME NTARY EVIDENCE IN RESPECT OF 'JATANA' AND 'ANAND' HAVE BEEN FURNISHED TO SUBSTANTIATE THE TRANSACTION, WHILE A CONFIRMATION HAS BEEN FILED IN THE CASE OF DR. (MRS) BHUPINDER KAUR PADDA. THIS CONFIRMATION HOWEVER WAS NOT PART OF THE ADDITIONAL EVIDENCE REQUESTED FOR ADMISSION. HENCE, THE SAME CANNOT BE TAKEN ON RECORD BY ME. CONSEQUENTLY, 1 THINK IT WIL L BE IN THE FITNESS OF THINGS TO TREAT ONLY THE AMOUNTS OF RS. 45 LAKHS AN D RS. 8 LAKHS AS PERTAINING TO ITS TERM LOAN LIABILITY AS EXPLAINED. THE FURTHER CONTENTION IS THAT THIS SEIZED DOCUMENT WAS A LIABILITY 'DENA' SO THE ADDITION U/S 68 WAS NOT TENABLE. THE CHAIRMA N OF THE TRUST IN WHOSE POSSESSION THE DOCUMENTS WERE FOUND AND WHO I S IN THE KNOW OF THE ENTRIES SHOULD HAVE FURNISHED THE NECESSARY EXPLANA TIONS. BE THAT AS IT MAY, SOME OF THE ENTRIES ARE FOUND CORRESPONDING WITH TH E ASSESSEE' S AUDITED ACCOUNTS WHILE SOME ARE JUST NOT ACCOUNTED FOR. SO IN THE ABSENCE OF ANY CORROBORATION, THE BALANCE ENTRIES TO THE EXTENT OF RS. 1.14 CRORES OUT OF RS. 1.67 CRORES IS CONFIRMED. THE ASSESSEE PARTLY SUCCE EDS IN THIS GROUND. 44. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND SUBMI TTED THAT IN THE SEIZED PAPER, THERE IS NO MENTION OF AN Y LACS 39 OR CRORES AGAINST THE FIGURES OF 167. WHATEVER LOA NS WERE RECEIVED BY ASSESSEE, HAVE BEEN ENTERED INTO THE BO OKS OF ACCOUNT PERTAINING TO JATTANA, ANAND, PUDDA AND THE BANK AND HAVE BEEN SHOWN IN THE BALANCE SHEET AS ON 31.03.2007. THE LD. CIT(APPEALS) GAVE BENEFIT OF B ANK ENTRIES OF RS. 53 LACS ONLY BUT WAS NOT JUSTIFIED I N NOT DELETING THE ENTIRE ADDITION ON THE SAME BASIS. SI NCE THE FOUR LOANS PERTAIN TO ASSESSMENT YEAR 2007-08, THER EFORE, NO ADDITION COULD BE MADE IN ASSESSMENT YEAR UNDER APPEAL 2008-09. EVEN OTHERWISE, PROVISIONS OF SECT ION 68 WOULD NOT APPLY IN THE CASE OF THE ASSESSEE BECAUSE FOR REST AMOUNT THERE IS NO ENTRY IN THE BOOKS OF ACCOU NT. SHRI ANOOP GARG ADMITTED IN HIS STATEMENT THAT HE H AS TAKEN SOME LOAN IN CASH AND THERE IS NO EVIDENCE ON RECORD TO CONNECT THE ASSESSEE TRUST WITH ANY LOAN TAKEN BY HIM IN HIS PERSONAL CAPACITY. HE HAS SUBMITTED THAT IT MAY BE AN ESTIMATE OF THE CHAIRMAN AND REFERRED TO CERTIFICATE OF PUNJAB NATIONAL BANK (PB-1099 AND BA LANCE SHEET AS ON 31.3.2007 PB-252). HE HAS, THEREFORE, SUBMITTED THAT ENTIRE ADDITION IS LIABLE TO BE DELE TED. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW. 45. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE ASSE SSEE FILED BALANCE SHEET AS ON 31.3.2007 AND THE CERTIFI CATE OF THE PUNJAB NATIONAL BANK INTIMATING THE AVAILING OF TERM LOAN BY THE ASSESSEE TRUST. THE ASSESSEE ALSO IN T HE WRITTEN SUBMISSIONS SPECIFICALLY EXPLAINED THAT THE 40 ASSESSEE TRUST HAS TAKEN LOAN OF RS.6 LACS FROM JAT TANA RS. 5 LACS FROM ANAND AND RS. 18 LACS FROM PUDDA AN D THOSE WERE MENTIONED IN THE BALANCE SHEET OF BRS INSTITUTE OF MEDICAL SCIENCES FOR ASSESSMENT YEAR 2 007- 08. THE LD. CIT(APPEALS) ON GOING THROUGH THE BALAN CE SHEET OF ASSESSMENT YEAR 2007-08 FOUND THAT THE LIS T OF UN-SECURED LOANS AS ON 31.3.2007 REFLECTED THE LOAN S IN THE NAME OF BHUPINDER KAUR PUDDA 18 LACS, RS. 6 LAC S JATTANA AND RS. 5 LACS ANAND. SINCE THESE LOANS OF THE ASSESSEE TRUST PERTAIN TO THE PRECEDING ASSESSMENT YEAR, THERE WERE NO REASONS FOR THE AUTHORITIES BELOW TO MAKE ADDITIONS OF THESE AMOUNTS IN ASSESSMENT YEAR UNDER APPEAL I.E. 2008-09. EVEN IN THE ORDER UNDER APPEA L, ASSESSING OFFICER AGAIN ASKED THE ASSESSEE TO PROVE THE IDENTITY AND CREDIT WORTHINESS OF THESE CREDITORS W HICH PERTAIN TO THE PRECEDING ASSESSMENT YEAR. THESE ADDITIONS ARE, THEREFORE, WHOLLY UNJUSTIFIED. THE SAME FACT IS ALSO VERIFIABLE FROM THE BALANCE SHEET, COP Y OF WHICH IS FILED AT PAGE 252 OF THE PAPER BOOK. AS R EGARDS THE LOAN OF RS. 53 LACS, ASSESSEE HAS FILED BANK CERTIFICATE AT PAGE 1099 OF THE PAPER BOOK. THIS CERTIFICATE WAS ALSO FILED BEFORE LD. CIT(APPEALS) IN WHICH BANK HAS INTIMATED THAT ASSESSEE HAS AVAILED LOAN A ND WAS REQUIRED TO PAY IN INSTALMENTS. THE LD. CIT(AP PEALS) WAS, THEREFORE, JUSTIFIED IN DELETING THE ADDITION OF RS. 53 LACS IN RESPECT OF THE BANK ENTRY PARTICULARLY, WHE N THE SAME ENTRY ALSO FALLS IN PRECEDING ASSESSMENT YEAR 2007- 08 BECAUSE THE BALANCE SHEET OF THE ASSESSEE FOR EA RLIER 41 YEARS SHOWS THE SAME ENTRIES OF THE BANK. THEREFOR E, NO ADDITION COULD BE MADE IN ASSESSMENT YEAR UNDER APP EAL. FOR THE REST OF THE AMOUNT IN RESPECT OF OTHER PERS ONS MENTIONED IN THE SEIZED PAPER, ASSESSEE EXPLAINED T HAT THESE ENTRIES ARE JUST ESTIMATION AND NO LOANS HAVE BEEN TAKEN FROM THESE PERSONS. THE ASSESSING OFFICER, HOWEVER, INFERRED THAT ASSESSEE HAS TAKEN LOAN FROM THESE PERSONS. THERE IS NO MENTION OF ANY DATE AGAINST T HESE NAMES. EVEN NO NAME OF ASSESSEE IS MENTIONED IN SE IZED PAPER. THE STATEMENT OF THE CHAIRMAN SHRI ANOOP GAR G WAS RECORDED IN WHICH ALSO HE HAS NOT MADE ANY ALLE GATION AGAINST ASSESSEE TRUST OF TAKING ANY LOAN OR PASSIN G THE SAME LOAN TO THE ASSESSEE TRUST. THERE ARE NO ENTRI ES OF THE SAID LOANS RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THE ADDITION UNDER SECTION 68 OF THE ACT COULD BE MADE IF ANY SUM IS FOUND CREDITED IN THE BOOKS O F ACCOUNT OF THE ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NA TURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HI M IS NOT IN THE OPINION OF THE ASSESSING OFFICER AS SATI SFACTORY, THE SUM SO CREDITED COULD BE CHARGED TO INCOME TAX AS INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. SINC E THERE IS NO SUM FOUND CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE IN ASSESSMENT YEAR UNDER APPEAL AND NO REL IABLE EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH, THA T THESE WERE GENUINE LOANS TAKEN BY ASSESSEE IN ASSES SMENT 42 YEAR UNDER APPEAL, NO ADDITION COULD BE MADE WITH T HE HELP OF SECTION 68 OF THE ACT OF THE REST OF AMOUNT . 45(I) IT MAY ALSO BE NOTED HERE THAT WHEN THE LD. CIT(APPEALS) DELETED THE ADDITION IN RESPECT OF THE LOANS MENTIONED IN PRECEDING ASSESSMENT YEAR OF THE BANK, THE LD. CIT(APPEALS) SHOULD NOT HAVE SUSTAINED THE ADDI TION OF RS.29 LACS IN RESPECT OF THREE UNSECURED LOANS RECO RDED IN BLA AND BALANCE SHEET OF THE ASSESSEE AS ON 31.3.20 07. THE HON'BLE DELHI HIGH COURT IN THE CASE OF GIRISH CHAUDHRY 163 TAXMAN 608 HELD THAT, THERE IS NO BAS IS AS TO HOW THE ASSESSING OFFICER CAME TO THE CONCLUS ION THAT 48 WAS RS. 48 LACS. NO MATERIAL IS THERE TO S UPPORT SUCH FINDING OF THE ASSESSING OFFICER. IT IS A DUM B DOCUMENT. ADDITION DELETED.. IN THE CASE OF THE AS SESSEE ALSO IN THE SEIZED PAPER IN THE NAMES OF OTHER PERS ONS, ONLY 3, 5, 15, 15, 7 AND 36 ARE MENTIONED. IT WOUL D NOT INDICATE WHETHER THESE ARE IN RUPEES OR IN LACS. N O MATERIAL IS PRODUCED BEFORE US TO SUPPORT FINDINGS OF THE AUTHORITIES BELOW. 46. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT AUTHORITIES BELOW WERE WHOLLY UNJUSTIFIED IN M AKING AND SUSTAINING THE ADDITION OF RS.1.67 CR. ORDERS O F THE AUTHORITIES BELOW ARE, THEREFORE, SET ASIDE AND THE ENTIRE ADDITION IS DELETED. 43 47. IN THE RESULT, GROUND NOS. 4 & 5 OF THE APPEAL OF ASSESSEE ARE ALLOWED. GROUND NO. 3 OF DEPARTMENTAL APPEAL IS DISMISSED. 48. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D AND DEPARTMENTAL APPEAL IS DISMISSED. 49. IN THE RESULT, ALL DEPARTMENTAL APPEALS ARE DIS MISSED AND APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNES H SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH SEPT.,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH