Swami Devi Dayal Hi Tech Educational Academy, Panchkula v. DCIT, Chandigarh

ITA 1056/CHANDI/2013 | 2005-2006
Pronouncement Date: 07-11-2014

Appeal Details

RSA Number 105621514 RSA 2013
Assessee PAN AADTS8096B
Bench Chandigarh
Appeal Number ITA 1056/CHANDI/2013
Duration Of Justice 11 month(s) 18 day(s)
Appellant Swami Devi Dayal Hi Tech Educational Academy, Panchkula
Respondent DCIT, Chandigarh
Appeal Type Income Tax Appeal
Pronouncement Date 07-11-2014
Appeal Filed By Assessee
Bench Allotted A
Tribunal Order Date 07-11-2014
Date Of Final Hearing 16-12-2015
Next Hearing Date 16-12-2015
Assessment Year 2005-2006
Appeal Filed On 19-11-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI T.R. SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA JUDICIAL MEMBER ITA NOS. 1054 TO 1057 /CHD/2013 ASSESSMENT YEARS: 2003-04 TO 2006-07 SH. SWAMI DEVI DAYAL VS. THE DCIT HI TECH EDUCATIONAL ACADEMY CENTRAL CIRCLE- I PANCHKULA CHANDIGARH PAN NO. AADTS8096B ITA NOS. 1126 TO 1128 /CHD/2013 ASSESSMENT YEAR: 2008-09 2007-08 2009-10 SH. SWAMI DEVI DAYAL VS. THE DCIT HI TECH EDUCATIONAL ACADEMY CENTRAL CIRCLE I PANCHKULA CHANDIGARH PAN NO. AADTS8096B ITA NOS. 14 TO 17 /CHD/2014 ASSESSMENT YEARS: 2006-07 TO 2009-10 THE DCIT VS. SH. SWAMI DEVI DAYAL CENTRAL CIRCLE I HI TECH EDUCATIONAL ACA DEMY PANCHKULA CHANDIGARH PAN NO. AADTS8096B (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI SUDHIR SEHGAL & ASHOK GOYAL RESPONDENT BY : SMT. JYOTI KUMARI DATE OF HEARING : 16/09/2014 DATE OF PRONOUNCEMENT : 07/11/2014 ORDER PER BENCH THIS IS A GROUP OF 11 APPEALS OUT OF WHICH SEVEN AR E FILED BY THE ASSESSEE AND FOUR APPEALS ARE FILED BY THE REVENUE AGAINST THE S EPARATE ORDERS OF CIT(A). 2. IN THIS GROUP OF CASES VARIOUS ISSUES HAVE BEEN RAISED BY THE ASSESSEE AND REVENUE. HOWEVER AT THE OUTSET LD. COUNSEL FOR T HE ASSESSEE STRESSED THAT TWO PRELIMINARY ISSUES I.E. LACK OF OPPORTUNITY AT THE LEVEL OF ASSESSING OFFICER AND DURING REMAND PROCEEDINGS AS WELL AS THE ISSUE REGARDING N ON-ADMISSION OF WHOLE ADDITIONAL EVIDENCE NEEDS TO BE ADDRESSED BEFORE ADJUDICATING OTHER ISSUES. 2 3. THE HEARING IN THIS CASE WAS CONDUCTED FROM 23.1 2.2013 TO 16.9.2014. THE HEARING PROLONGED FOR SUCH A LONG PERIOD BECAUSE LD . COUNSEL FOR THE ASSESSEE MADE CERTAIN SUBMISSIONS WITH RESPECT TO THE ISSUE HOW O PPORTUNITY WAS NOT GRANTED AND EVEN AN AFFIDAVIT WAS FILED TO THIS EFFECT. THE BENCH I N TURN CONFRONTED THE LD DR WITH HIS REPRESENTATIONS AS WELL AS AFFIDAVIT AND OTHER DOCU MENTS FILED BY HIM. ON EACH OCCASION TIME WAS SOUGHT EITHER BY ASSESSEE OR REVE NUE TO BRING IN MORE MATERIAL PARTICULARLY BY THE DEPARTMENT TO TAKE CLARIFICATIO NS FROM THE ASSESSING OFFICER. IN THESE CIRCUMSTANCES ULTIMATELY WE HAVE DECIDED TO ADJUDI CATE ONLY THE ISSUE OF LACK OF OPPORTUNITY AND NON-ADMISSION OF ADDITIONAL EVIDENC E FOR WHICH REASONS WOULD BECOME EVIDENT FROM THE FOLLOWING PARAS:- 4. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE TRUST IS RUNNING VARIOUS EDUCATIONAL INSTITUTIONS. A SEARCH WAS CONDUCTED IN THE PREMISE S OF THE ASSESSEE ON 14.7.2008 AND CERTAIN INCRIMINATING DOCUMENTS WERE FOUND. IT SEEM S THAT MOST OF THE BOOKS OF ACCOUNTS AND DOCUMENTS FOUND DURING THE SEARCH WERE SEIZED AND ASSESSEE WROTE VARIOUS LETTERS FOR OBTAINING THE COPIES OF THOSE D OCUMENTS. LATER ON A SHOW CAUSE NOTICE DATED 28.9.2010 WAS ISSUED ASKING THE ASSES SEE THAT IN VIEW OF THE COMPLEXITY IN THE ACCOUNTS WHY SPECIAL AUDIT SHOULD NOT BE CON DUCTED. A DETAILED REPLY WAS FILED ON 11.10.2010. THE ASSESSING OFFICER SOUGHT APPROVA L OF THE COMMISSIONER INCOME TAX FOR CONDUCTING SPECIAL AUDIT VIDE LETTER DATED 14.10.2010 AND APPROVAL WAS GRANTED ON 11.11.2010. ULTIMATELY SPECIAL AUDIT REPORT WA S GIVEN TO THE ASSESSEE ON 13.5.2011 WHICH WAS FILED BY ASSESSEE ON THE SAME D ATE WITH ASSESSING OFFICER. THE RETURN OF INCOME WAS FILED ON 1.04.2011 AND THEREAF TER NOTICE U/S 143(2) WAS ISSUED ON 20.4.2011 FIXING THE CASE FOR 29.4.2011. ULTIMATELY ASSESSMENT WAS COMPLETED ON 12 TH JULY 2011. 5. BEFORE THE LD CIT(A) IT WAS MAINLY SUBMITTED TH AT ASSESSMENT HAS BEEN COMPLETED WITHIN A PERIOD OF LESS THAN 70 DAYS. FU RTHER 165 ASSESSMENTS WERE TO BE COMPLETED IN THIS GROUP WITHIN THE SHORT SPAN OF TH IS TIME AND IT WAS NOT PHYSICALLY POSSIBLE TO FILE ALL THE DETAILS. THEREFORE A REQ UEST WAS MADE FOR ADMISSION OF ADDITIONAL EVIDENCE. 3 6. THE LD CIT(A) AFTER EXAMINING THESE ISSUES OBSER VED THAT THE ASSESSEE CANNOT ADDUCE ADDITIONAL EVIDENCE UNLESS IT IS PROVED THAT ASSESSEE FALLS WITHIN THE EXCEPTIONS PROVIDED UNDER RULE 46A OF THE INCOME TAX RULES 19 62. ACCORDING TO HER VARIOUS OPPORTUNITIES HAD ALREADY BEEN GRANTED BY THE ASSES SING OFFICER THEREFORE REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE WAS NOT MAINTAINAB LE. HOWEVER STILL SHE ADMITTED CERTAIN DOCUMENTS AS ADDITIONAL EVIDENCE BUT IT IS NOT CLARIFIED WHICH DOCUMENTS WERE ADMITTED. THE ADDITIONAL EVIDENCE ADMITTED WAS SENT FOR VERIFICATION IN THE REMAND PROCEEDINGS. IT SEEMS THAT ASSESSING OFFICER CONSTI TUTED A COMMITTEE FOR VERIFICATION OF ADDITIONAL EVIDENCE AND A REPORT WAS PREPARED. HOWE VER THIS REPORT WAS NOT FORWARDED TO THE LD CIT(A). IT HAS BEEN CLAIMED BEFORE US BY THE REVENUE THAT THIS REPORT SHOULD BE TREATED AS DRAFT REPORT AND SECONDLY ASSESSING O FFICER DID NOT HAVE THE AUTHORITY TO CONSTITUTE A COMMITTEE FOR VERIFICATION OF THE DOCU MENTS AND THEREFORE THIS IS NOT VALID REPORT. ALL THE DOCUMENTS WERE VERIFIED AGAIN AND SECOND REMAND REPORT WAS SENT TO THE CIT(A). 7. BEFORE US IT HAS BEEN ALLEGED THAT NO OPPORTUNIT Y WAS GRANTED TO THE ASSESSEE DURING THE SECOND REMAND VERIFICATION AND THEREFORE THAT REPORT CANNOT BE TREATED AS VALID. DURING THE FIRST REMAND REPORT THOUSANDS OF PAPERS WERE VERIFIED BY THE TEAM CONSTITUTED BY THE ASSESSING OFFICER AND THAT REMAN D REPORT WAS ALSO FAVOURABLE TO THE ASSESSEE WHICH HAS BEEN ILLEGALLY WITHDRAWN BY THE DEPARTMENT. THE LD CIT(A) ULTIMATELY FINALIZED HER ORDER ON THE BASIS OF SECO ND REMAND REPORT 8. FURTHER THE LD. COUNSEL FOR THE ASSESSEE REFERRE D TO THE COMBINED PAPER BOOK TO SHOW THE COMPLETE SEQUENCE OF EVENTS. HE POINTED OU T TO VARIOUS DATES AND SUBMITTED THAT HOW ULTIMATELY THE DOCUMENTS WERE SUPPLIED TO THE ASSESSEE ONLY ON 26.8.2010 AND THEREAFTER THE PROPOSAL FOR SPECIAL AUDIT WAS I NITIATED. IN THIS BACKGROUND THE ASSESSEE COULD NOT HAVE POSSIBLY FILED THE RETURN I N THE ABSENCE OF DOCUMENTS I.E. WHY RETURN COULD BE FILED ONLY ON 1.4.2011. THE NOTICE U/S 143(2) WAS ISSUED ONLY ON 20.4.2011 CALLING FOR ATTENDANCE ON 29.4.2011. THU S EFFECTIVELY THE HEARING STARTED FROM 29.4.2011. THE SPECIAL AUDIT REPORT WAS MADE AVAILABLE TO ASSESSEE AS WELL AS THE ASSESSING OFFICER ONLY ON 13.5.2011 THEREFORE PRACTICALLY IN LESS THAN 70 DAYS IT 4 WAS NOT POSSIBLE TO MEET EACH AND EVERY QUERY RAISE D BY THE ASSESSING OFFICER IN 165 CASES AND ASSESSEE COULD NOT GIVE PROPER REPLIES RE GARDING SOME OF THE ISSUES. 9. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED COPI ES OF ORDER SHEETS OF ASSESSMENT PROCEEDINGS AND POINTED OUT THAT PERUSA L OF THE SAME WOULD CLEARLY SHOW THAT SEIZED MATERIAL WAS NEVER CONFRONTED TO THE AS SESSEE AND NO QUERIES WERE EVER RAISED. IN FACT FIRST SHOW CAUSE NOTICE WAS ISSUED ONLY ON 16.6.2011 AND ASSESSMENTS HAVE BEEN COMPLETED ON 12.7.2011. THIS CLEARLY SH OWS THAT HARDLY LESS THAN 70 DAYS WERE PROVIDED FOR ASSESSMENT PROCEEDINGS INVOLVING 1000S OF DOCUMENTS AND IT WAS PRACTICALLY NOT POSSIBLE TO SCRUTINIZE THE SAME. E VEN FOR ASSESSEE IT WAS NOT POSSIBLE IN SUCH A SHORT SPAN TO REPLY IN 165 CASES WHICH WERE INVOLVED IN THIS SEARCH. THUS CLEARLY THE ASSESSING OFFICER HAS NOT PROVIDED ADEQUATE OPP ORTUNITY TO THE ASSESSEE. 10 IN THE ABOVE BACKGROUND THE ASSESSEE FILED ADDIT IONAL EVIDENCE BEFORE THE LD. CIT(A) AND THE LD. CIT(A) WITHOUT APPRECIATING THE FACTS OF THE CASE DECLINED TO ADMIT THE ADDITIONAL EVIDENCE. THOUGH SOME OF THE ADDITI ONAL EVIDENCES WERE ADMITTED FOR WHICH DETAILS HAVE NOT BEEN DISCUSSED IN THE IMPUGN ED ORDER. 11 THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTEN DED THAT WHATEVER ADDITIONAL EVIDENCE WAS ADMITTED WAS SENT FOR VERIFICATION IN REMAND PROCEEDINGS. THE ASSESSING OFFICER CONSTITUTED A COMMITTEE OF HIS OFFICIALS AN D DURING REMAND PROCEEDINGS THE ASSESSEE WAS CALLED UPON AND THOUSANDS OF PAGES WER E FILED DURING SUCH REMAND PROCEEDINGS. ULTIMATELY A REMAND REPORT WAS PREPAR ED. FOR ASSESSMENT YEAR 2003-04 TO 2005-06 THE PAPERS WERE FILED ON 9.3.2012 AND RE MAND REPORT WAS PREPARED ON 4.12.2012 WHICH MAKES IT CLEAR THAT VARIOUS DOCUMEN TS WERE EXAMINED. FOR ASSESSMENT YEAR 2006-07 TO 2009-10 VARIOUS ADDITIO NAL EVIDENCES WERE FURNISHED BEFORE THE LD. CIT(A) IN JULY 2012 FOR WHICH FIRST REMAND REPORT WAS PREPARED ON 8.4.2013 AFTER PROVIDING ADEQUATE OPPORTUNITY TO T HE ASSESSEE. SOME HOW OR OTHER REVENUE DID NOT FORWARD THIS REPORT TO THE LD. CIT( A) AND SECOND REPORT WAS PREPARED WITHOUT GIVING ANY OPPORTUNITY. AT THIS JUNCTURE T HE BENCH HAS ASKED THE ASSESSEE TO FILE AN AFFIDAVIT SHOWING THAT NO OPPORTUNITY WAS G RANTED DURING SECOND REMAND REPORT AND THE REVENUE WAS ALSO DIRECTED TO FURNISH PROPER REPLY AGAINST SUCH AFFIDAVIT. THE AFFIDAVIT HAS BEEN FILED TO THIS EFFECT. IT WAS CO NTENDED THAT IT WAS NOT POSSIBLE TO 5 PREPARE SECOND REMAND REPORT WITHOUT GIVING AN OPPO RTUNITY TO THE ASSESSEE. IN THIS REGARD HE REFERRED TO THE SECOND REMAND REPORT (COP Y PLACED AT PAGE 221 TO 232 OF PAPER BOOK FOR ASSESSMENT YEAR 2003-04). AS AN EX AMPLE LD. COUNSEL FOR THE ASSESSEE PARTICULARLY INVITED OUR ATTENTION TO PAG E 227 OF PAPER BOOK IN WHICH WHILE DISCUSSING THE ADDITION ON ACCOUNT OF DONATIONS RE CEIVED BY THE ASSESSEE IT IS MENTIONED THAT THE ASSESSEE HAS PROVIDED THE NAMES AND ADDRESSES OF THE PERSONS WHO HAVE MADE SUCH DONATIONS TOWARDS BUILDING FUND. IT IS MENTIONED THAT NO CONFIRMATION LETTER OR PANS FOR SUCH PERSONS WAS GI VEN. THE ASSESSING OFFICER HAS ALSO COMMENTED IN REMAND REPORT THAT FIRSTLY ADDITIONAL EVIDENCE IS NOT ADMISSIBLE AND SECONDLY HE HAS QUOTED THE OBSERVATIONS OF THE ASSE SSING OFFICER DURING ASSESSMENT PROCEEDINGS. IT WAS CONTENDED THAT IF ADDRESSES WE RE AVAILABLE WITH THE ASSESSING OFFICER DURING REMAND PROCEEDINGS THEN ASSESSING O FFICER COULD HAVE EASILY CALLED THOSE PERSONS AND MAKE ENQUIRIES SECOND REMAND REP ORT HAS BEEN MADE ALMOST AFTER FOUR MONTHS FROM THE FIRST REMAND REPORT. ALTERNAT IVELY THE ASSESSING OFFICER COULD HAVE ASKED THE ASSESSEE TO FILE CONFIRMATIONS ETC. OR PRODUCE SOME OF THE DONORS. SINCE NO OPPORTUNITY WAS GIVEN AND THEREFORE THIS E XERCISE WAS NOT DONE. IN THESE CIRCUMSTANCES SECOND REPORT CANNOT BE USED BY THE R EVENUE TO MAKE ADDITION WHICH ARE NOT SUBSTANTIATED AT ALL WITHOUT PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 12 CERTAIN OTHER ISSUES CROPPED UP DURING HEARING. FOR EXAMPLE AN ADDITION HAS BEEN MADE FOR ASSESSMENT YEAR 2006-07 TO 2009-10 O N ACCOUNT OF CERTAIN DISALLOWANCES U/S 40(A)(IA). THE LD. COUNSEL FOR T HE ASSESSEE POINTED OUT THAT THE ISSUES HAVE BEEN DECIDED AGAINST THE ASSESSEE IN TH E ABSENCE OF PROPER EXPLANATION WHICH COULD NOT BE GIVEN IN THE ABSENCE OF PROPER OPPORTUNITY. HAD SUCH OPPORTUNITY BEEN GIVEN THE ASSESSEE COULD HAVE ARGUED THE CASES IN DETAIL. FOR EXAMPLE AGAINST THE DISALLOWANCE U/S 40(A)(IA) MUMBAI BENCH OF THE TRIBUNAL IN CASE OF MAHATAMA GANDHI SAVE V DCIT ITA NO. 4138/MUM/2011 (COPY OF ORDER FILED) HAS CLEARLY HELD THAT THE DISALLOWANCE SUCH AS DISALLOWANCE U/S 40(A)()IA ) CANNOT BE MADE IN CASE OF ENTITIES WHICH ARE EXEMPT U/S 11 BECAUSE SUCH DISALLOWANCES WOULD HAVE NO MEANING BECAUSE EVEN IF THE INCOME IS ENHANCED THE SAME WOULD REMAI N EXEMPT. SUCH TYPE OF ARGUMENT CAN BE MADE ONLY IF PROPER OPPORTUNITY IS GRANTED. 6 13 THE LD. COUNSEL FOR THE ASSESSEE SUMMARIZED THAT IN VIEW OF THE ABOVE SUBMISSIONS VARIOUS APPEALS NEED TO BE REMANDED BAC K BECAUSE PROPER OPPORTUNITY HAS NOT BEEN GRANTED AND THE LD. CIT(A) HAS WRONGLY DECLINED TO ADMIT ALL THE ADDITIONAL EVIDENCE. 14 BEFORE WE DISCUSS THE CONTENTIONS OF THE DEPARTM ENT WE MAY LIKE TO POINT OUT THAT DURING HEARING IT ALMOST BECAME CLEAR THAT IN SHORT SPAN OF ABOUT 70 DAYS IT WAS NOT PRACTICAL TO COMPLETE THE ASSESSMENT PROCEEDINGS TH AT TOO IN CASE OF SEARCH INVOLVING 165 CASES INVOLVED 1000S OF DOCUMENTS. HOWEVER A QUESTION CROPPED UP THAT IF THE CASE WAS REMANDED JUST ON ACCOUNT OF LACK OF OPPOR TUNITY THE ASSESSEE MAY FILE VARIOUS EVIDENCES WHICH ARE NOT AVAILABLE EVEN DURI NG HEARING BEFORE US. THEREFORE TO PUT A FULL STOP WE HAVE SUGGESTED THAT THE LD. COUN SEL FOR THE ASSESSEE MAY FILE WHATEVER ADDITIONAL EVIDENCES WHICH ARE REQUIRED TO BE FILED AND WHICH ARE AVAILABLE PRESENTLY BEFORE US SO THAT WE CAN CONSIDER THE SA ME. IN RESPONSE TO THIS THE ASSESSEE HAS FILED FOLLOWING PAPER BOOKS: ASSESSMENT YEAR PARTICULARS 2003-04 TWO PAPER BOOKS CONTAINING 454 PAGES 2004-05 THREE PAPER BOOKS CONTAINI9NG 800 PAGES 2005-06 THREE PAPER BOOKS CONTAINING 1115 PAGES 2006-07 TWO PAPER BOOKS CONTAINING 609 PAGES 2007-08 ONE PAPER BOOK CONTAINING 383 PAGES 2008-09 THREE PAPER BOOKS CONTAINING 1268 PAGES 2009-10 THREE PAPER BOOKS CONTAINING 1174 PAGES IT WAS NOT PRACTICAL TO GO THROUGH EACH AND EVERY D OCUMENTS OF THE INDIVIDUAL PAPER BOOK OF ADDITIONAL EVIDENCE. THE LD. COUNSEL FOR T HE ASSESSEE WAS FURTHER DIRECTED TO FILE SUMMARIZED CHART OF THE PAPERS PERTAINING TO V ARIOUS ADDITIONS. THIS WAS ALSO COMPLIED AND ANNEXURE D CONTAINING SUMMARIZED DETAI LS OF THIS ADDITIONAL EVIDENCE WAS FILED ALONG WITH LETTER DATED 15.9.2014. IN T HIS BACKGROUND FOLLOWING CONTENTIONS WERE MADE IN RESPECT OF ADMISSION OF ADDITIONAL EVI DENCE. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT ABOVE NOTED PAPERS ARE AVAI LABLE WITH THE ASSESSEE AND THESE ARE REQUIRED TO BE ADMITTED BECAUSE THEY GO T O THE ROOT OF THE MATTER. IN 7 RESPONSE TO OUR QUERY THAT THE ASSESSEE HAS TO PUT SOME FULL STOP ON ADMISSION OF ADDITIONAL EVIDENCE THE LD. COUNSEL FOR THE ASSESS EE POINTED OUT THAT FOR EXAMPLE AN ADDITION OF RS. 83 18 819/- HAS BEEN MADE ON ACCOUN T OF DONATIONS TOWARDS CORPS FUND IN THE ABSENCE OF PROPER DETAIL IN ASSESSMENT YEAR 2003-04. HE SUBMITTED THAT PRESENTLY THE ASSESSEE HAS FILED ADDITIONAL EVIDENC E IN THE FORM OF CONFIRMATION FROM 294 PERSONS TOTALING TO RS. 28 25 402/- AT PAGE 2-3 33 OF ADDITIONAL EVIDENCE PAPER BOOK. HE AGREED TO THE PROPOSITION THAT THE BALANC E OF ADDITIONAL EVIDENCE WOULD NOT BE ALLOWED TO BE PRESENTED BEFORE THE ASSESSING OFFICE R IF THE MATTER IS SET ASIDE. HE AGAIN REITERATED THAT ALL THESE EVIDENCES GO TO THE ROOT OF EACH AND EVERY ADDITION THEREFORE SUCH ADDITIONAL EVIDENCE IS REQUIRED TO B E ADMITTED AND HE MADE A PRAYER FOR ADMISSION OF SUCH ADDITIONAL EVIDENCE. HE FURTHER RELIED ON THE FOLLOWING DECISIONS: CIT V. MUKTA METAL WORKS 336 ITR 555 (PH) CIT V. SURETECH HOSPITAL AND RESEARCH CENTRE LTD. 293 ITR 53 (BOM) SMT. PRABHAVATI S. SHAH V. CIT 231 ITR 1 (BOM) CIT V. PARIMAL KANTI CHANDA 291 ITR 77 (GAU) CIT V. TEXT HUNDRED INDIA PVT. LTD. 351 ITR 57 ( DELETION) HANS FASHION V DCIT (CHANDIGARH BENCH OF THE TRIBU NAL)-----? 15 ON THE BASIS OF ABOVE SUBMISSIONS AND ADDITIONA L EVIDENCE RECEIVED DURING HEARING THE REVENUE WAS DIRECTED TO SUBMIT FULL DE TAILS AND REPLIES ON THE FOLLOWING ISSUES- (I) DETAIL OF PHOTOCOPIES GIVEN TO THE ASSESSEE OF THE SEIZED MATERIAL ALONG WITH RECEIPTS OF THE ASSESSEE AND CHART SHOWING THE DATE OF REQUEST AND SUPPLY OF SUCH INFORMATION. (II) SIMILAR DETAIL AS ABOVE REQUESTED BY THE ASSES SEE FROM INVESTIGATION WING (III) WHETHER THERE IS ANY BAR IN THE LAW FOR CONST ITUTION OF COMMITTEE FOR REMAND VERIFICATION AND WH Y FIRST REMAND REPORT WAS WITHDRAWN? (IV) WHETHER ANY OPPORTUNITY WAS GRANTED TO THE ASS ESSEE DURING SECOND REMAND PROCEEDINGS AND PARTICULAR REPLY TO THE AFFIDAVIT FILED BY THE ASSE SSEE. WHY THE NOTING SHEETS ARE NOT IN THE HAND WRITING OF THE ASSESSING OFFICER AND COMPUTERIZED O RDER SHEETS HAVE BEEN PREPARED WHICH IS AGAINST THE NORMAL PRACTICE? (V) STATUS OF THE REGISTRATION OF 12AA AND WHETHER THE SAME IS GENUINE (VI) WHEN THE FIRST REMAND REPORT WAS NOT ACCEPTED BY THE ADDL CIT WHETHER ANY ACTION WAS TAKEN AGAINST THE EMPLOYEES WHO PREPARED SUCH REPORT? (VII) COPIES OF THE FOLDERS OF BOTH THE REMAND REPO RTS WERE DIRECTED TO BE PRODUCED. IT SEEMS THAT THE CIT LD. D.R FOR THE REVENUE HAS R AISED ABOVE QUERIES AS WELL AS OTHER CONCERNS WITH OFFICERS AND COMMISSIONER OF THE CEN TRAL CIRCLE FROM WHOM SHE HAS 8 RECEIVED VERY LITTLE REPLY AND WHATEVER HAS BEEN RE CEIVED HAS BEEN FURNISHED BEFORE US AND OR ENCLOSED WITH HER WRITTEN SUBMISSIONS. NOW L ET US CONSIDER THE SUBMISSIONS OF THE LD. CIT D.R FOR THE REVENUE IN THIS BACKGROUND . 16 THE LD. CIT D.R FOR THE REVENUE SUBMITTED THAT ADDITIONAL EVIDENCE FILED NOW IS VOLUMINOUS CONTAINING MORE THAN 5000 PAGES AND IT I S NOT POSSIBLE FOR HER TO GO THROUGH THE SAME IN A SHORT TIME. THEREFORE SUFFICIENT TIM E SHOULD BE GIVEN OR OTHERWISE SUCH EVIDENCE SHOULD NOT BE ADMITTED. SHE ALSO SUBMITTED THAT SHE HAS GONE THOUGH VOLUME I OF THE ADDITIONAL EVIDENCE FOR ASSESSMENT YEAR 2 003-04 AND MADE CERTAIN OBSERVATIONS LIKE THERE WAS NO DATE MENTIONED IN TH E SIGNATURE. SL NO. OF THE RECEIPT ARE NOT RUNNING NUMBERS. IN MANY CASES ADDRESSES A RE NOT COMPLETE OR PAN IS NOT GIVEN. THEREFORE IN THE ABSENCE OF FULL NUMBER OF EVIDENCE THESE DOCUMENTS MAY NOT BE ADMITTED. IN ANY CASE IF THE ADDITIONAL EVIDENCE IS ADMITTED SAME IS REQUIRED TO BE REFERRED TO THE ASSESSING OFFICER FOR HIS EXAMINATI ON. 17 SHE SUBMITTED THAT THE ASSESSEE HAS NOT COOPERAT ED IN THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER OR APPELL ATE PROCEEDINGS BEFORE THE LD. CIT(A) DESPITE SUFFICIENT OPPORTUNITY GIVEN BY THES E AUTHORITIES. WHEREAS BEFORE THE TRIBUNAL DIRECTION WAS GIVEN BY THE BENCH ONLY ON 20 TH AUG 2014 TO FURNISH THE ADDITIONAL EVIDENCE TO PUT A FULL STOP TO THE GATHE RING OF ADDITIONAL EVIDENCE AND THE ASSESSEE HAS BEEN ABLE TO FILE MORE THAN 5000 PAGES WITHIN A SHORT SPAN OF 25 DAYS. THIS ALSO SHOWS THAT THE ASSESSEE WAS NOT COOPERATI NG IN THE PROCEEDINGS BEFORE THE AUTHORITIES BELOW. IN ANY CASE THE ASSESSEE HAS NO T GIVEN REASONS WHICH STOPPED IT FROM FURNISHING ADDITIONAL EVIDENCE BEFORE THE ASSE SSING OFFICER OR THE LD. CIT(A). IN THIS REGARD SHE REFERRED TO THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN CASE OF RAM PRASAD SHARMA V. CIT 119 ITR 867 (ALL) WHEREIN IT WAS HELD THAT IF SUFFICIENT OPPORTUNITY WAS GIVEN BY THE ASSESSING OFFICER AND IF NO EVIDENCE IS FILED THEN THE ASSESSEE IS PREVENTED FROM FILING SUCH EVIDENCE BEF ORE THE LD. CIT(A). SHE ALSO REFERRED TO THE DECISION OF HON'BLE DELHI HIGH COUR T IN CASE OF MANISH BUILDWELL 245 ITR 397 WHEREIN IT WAS HELD THAT GENUINENESS OF THE DOCUMENTS HAS TO BE EXAMINED BEFORE ADMITTING ADDITIONAL EVIDENCE. SHE ALSO REL IED ON THE FOLLOWING DECISIONS FOR VARIOUS ASPECTS OF ADMISSION OR INFORMATION OF ADDI TIONAL EVIDENCE: 9 CIT V. RANJIT KUMAR CHOUDHURY 288 ITR 179 (GAU) BIMAL KUMAR ANANT KUMAR V CIT 288 ITR 278 (ALL) CIT V. JAIPUR UDYOG LTD. 227 ITR 345 (RAJ) CIT V. VALIMOHMED AHMEDBHAI 134 ITR 214 (GAU) CIT V. MUKTA METAL WORKS 336 ITR 555 (PH) VELJI DEORAJ & CO. V. CIT 68 ITR 708 (BOM) KALRA GLUE FACTORY V. SALES TAX TRIBUNAL AND OTHERS 167 ITR 498 (S.C) CIT V. MOTILAL HIRABHAI SPG. AND WVG CO. LTD. 113 ITR 173 (GUJ) CIT V. GANI BHAI WAHAB BHAI 232 ITR 900 (M.P) 18 FURTHER THE LD. CIT-D.R FOR THE REVENUE REFERRE D TO VARIOUS LETTERS WRITTEN BY HER TO THE OFFICERS FROM THE DEPARTMENT. ON VARIOUS IS SUES RAISED BY THE BENCH WHICH HAVE BEEN SUMMARIZED BY US IN PARA 15 OF THIS ORDER. SHE SUBMITTED THAT THE ASSESSING OFFICER HAS INFORMED HER VIDE LETTER DATED 1.8.2014 THAT THE ASSESSEE HAD ACKNOWLEDGED THE RECEIPTS OF VARIOUS DOCUMENTS WHEN EVER THEY WERE SUPPLIED AND NO FURTHER CORRESPONDENCE WAS AVAILABLE IN THIS REGARD WITH THE OFFICE OF THE ASSESSING OFFICER. IN RESPECT OF ISSUE REGARDING CONSTITUTIO N OF COMMITTEE BY THE ASSESSING OFFICER THE LD CIT-D.R FOR THE REVENUE SUBMITTED T HAT THE REPLY GIVEN BY THE ADDL CIT STATES THAT THE INSPECTOR SHRI S.K. SEHGAL AND SHR I RAHUL KUMAR DID NOT HAVE THE AUTHORITY AND EXPERTISE TO MAKE THE COMMENTS ON THE ASSESSMENT ORDER. THESE TWO PERSONS DID NOT KNOW THE FACTS AND DID NOT HAVE THE AUTHORITY TO VERIFY AND COMMENT ON THE FACTS SUBMITTED BY THE ASSESSEE IN THE REMAND R EPORT. SHE HAS QUOTED SOME PORTIONS OF THE LETTERS RECEIVED FROM ADDL CIT IN R ESPECT OF THESE REMAND REPORTS IN HER WRITTEN SUBMISSIONS WHICH HAVE BEEN CONSIDERED BY U S. IN RESPECT OF STATUS OF REGISTRATION SHE REFERRED TO THE LETTER DATED 8.9.2 014 THROUGH WHICH THE CIT CENTRAL CIRCLE GURGAON HAS INFORMED THAT FINAL OPPORTUNITY HAS BEEN GIVEN TO THE ASSESSEE TO JUSTIFY THE CONTINUATION OF REGISTRATION. 19 SHE FURTHER SUBMITTED THAT THE ASSESSEE DID NOT COOPERATE WITH THE ASSESSMENT PROCEEDINGS AND THE APPEAL PROCEEDINGS. THE ASSES SEE DID NOT FILE RETURN OF INCOME IN RESPONSE TO THE NOTICE ISSUED U/S 153A ON 16.2.2009 AND IN FACT PENALTY PROCEEDINGS U/S 271F WERE INITIATED AND PENALTY WAS ULTIMATELY IMPOSED VIDE ORDER DATED 2.9.2009 10 FOR NON FILING OF RETURN. THE ASSESSEE HAD TAKEN L ONG TIME TO FILE THE RETURN ON 1.4.2011. MOST OF THE DOCUMENTS WERE SUPPLIED BY SEPT 2009 AN D THIS SHOWS THAT THE ASSESSEE HAS SIMPLY ADOPTED NON-COOPERATIVE ATTITUDE. 20 THE LD. CIT-D.R ALSO SUBMITTED THAT PART OF THE ADDITIONAL EVIDENCE WAS ADMITTED BY THE LD. CIT(A) AND THEREFORE IT IS WRON G TO SAY THAT FIRST APPELLATE AUTHORITY HAS NOT ADMITTED THE ADDITIONAL EVIDENCE. THE ASSE SSEE WAS NOT ABLE TO SATISFY THE CONDITIONS OF RULE 46A SHOWING WHY THE ASSESSEE COU LD NOT SUPPLY ADDITIONAL EVIDENCE BEFORE THE ASSESSING OFFICER. COMING TO THE SPECIF IC CONTENTION FOR ASSESSMENT YEAR 2003-04 IN RESPECT OF PAGES 227 - 228 THAT THE ASSE SSING OFFICER SHOULD HAVE VERIFIED THESE THINGS SHE POINTED OUT THAT THE ASSESSEE HAD SUBMITTED ONLY THE NAMES AND ADDRESSES OF THE DONORS AND THE ONUS WAS ON THE ASS ESSEE TO PROVE SUCH DONATIONS. SHE ALSO SUBMITTED THAT THE ASSESSEE IS A VERY BIG GROUP AND HAS ADVANTAGE OF SERVICES OF VARIOUS ADVOCATES AND C.AS AND THEREFORE IT WAS NOT DIFFICULT FOR THE ASSESSEE TO PREPARE ALL DOCUMENTATION EVEN FOR 165 CASES BEFORE THE ASSESSING OFFICER. SHE ALSO REFERRED TO FEW DOCUMENTS AND POINTED OUT HOW THE A DDITIONAL EVIDENCE WAS NOT FULL PROOF. 21 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. BEFORE WE PROCEED TO ADJUDICATE THE TWO ISSUES REGARDING NON PROVIDING OF OPPORTUNITY LEADING TO QUESTION OF ADMISSION OF ADD ITIONAL EVIDENCE WE WOULD LIKE TO OBSERVE THAT IN THIS CASE THE CONDUCT OF THE REVENUE AS WELL AS THE ASSESSEE HAS NOT BEEN OUTSTANDING. IT SEEMS THAT THE ASSESSEE DID NOT WANT TO COOPERATE FULLY BUT AT THE SAME TIME TH E REVENUE HAS ALSO TRIED TO LINGER ON THE MATER ON ONE PRETEXT OR THE OTHER. WE HAVE ALREADY NOTED IN THIS CASE THAT HEARING CONTINUED FROM 23.1 2.2013 TO 16.9.2014 AND WE HAD RAISED VARIOUS QUESTIONS TO THE REVENUE. IT SEEMS THAT THE LD. CIT-D.R COLLECTED INFORMATION FROM ASSESSING OFFICE R AND OTHER OFFICERS AS DESIRED BY THE BENCH BUT VERY LITTLE INFORMATION WA S FORTHCOMING AND VERY CRYPTIC REPLIES WERE GIVEN TO HER. THESE LETTERS HA VE BEEN ENCLOSED ALONG WITH WRITTEN SUBMISSIONS. WE CAN ONLY APPRECIATE TH E EFFORTS MADE BY THE 11 LD. CIT-D.R SMT.JYOTI KUMARI BUT THE CONDUCT OF TH E OFFICERS OF CENTRAL CIRCLE LEAVES MUCH TO BE DESIRED. 22 IN THIS CASE SEARCH WAS CONDUCED ON 15.7.2008 AN D VARIOUS DOCUMENTS WERE FOUND AND SEIZED. EVEN THE HARD DIS K OF ACCOUNTS WERE SEIZED. THE ASSESSEE MADE FIRST REQUEST ON 13.8.20 08 FOR OBTAINING COPIES OF VARIOUS DOCUMENTS. THE CONTENTS OF LETTE R DATED 13.8.2008 WHICH IS AVAILABLE AT PAGE 1 OF THE COMBINED PAPER BOOK ARE AS UNDER: THE ADDL DIRECTOR OF INVESTIGATION DATED: 13.8.2 008 INCOME TAX PANCHKULA SUB: RELEASE OF DOCUMENTS IMPOUNDED U/S 133A OF THE INCOME TAX ACT DURING SEARCH OPERATION ON OUR PREMISES ON 15.7.2008 DEAR SIR IT IS RESPECTFULLY SUBMITTED THAT DURING THE COURSE OF SEARCH OPERATIONS CONDUCTED ON OUR PREMISES ON 15.7.2008 VARIOUS DOC UMENTS FILES BOOKS OF ACCOUNT HARD DISK AND OTHER RELATED PAPERS WERE IMPOUNDED B Y THE SEARCH TEAM FROM DIFFERENT PREMISES. WE HAVE TO FINALIZE OUR ACCOUNTS AND FILE OUR INCOME TAX RETURNS BY 30 TH SEPT 2008 AND ARE TO MAINTAIN FURTHER DAY TO DAY AC COUNTS WHICH IS NOT POSSIBLE WITHOUT THE RELEVANT RECORD. MOREOVER WE A RE TO G IVE STATEMENT RELATING TO THE SEIZED DOCUMENTS WHICH CAN BE GIVEN ONLY AFTER SEEING THE DOCUMENTS. WE THEREFORE REQUEST YOU TO KINDLY PROVIDE US THE C OPIES OF BOOKS OF ACCOUNT AND OTHER RELATED RECORDS SEIZED DURING THE SEARCH OPERATION AT THE EARLIEST. KINDLY DO THE NEEDFUL. THANKING YOU YOURS FAITHFULLY SD/- (ROSHAN LAL JINDAL) THEREAFTER ANOTHER REQUEST WAS MADE ON 15.4.2009 FO R SUPPLY OF PHOTOCOPIES OF VARIOUS DOCUMENTS. NEXT REQUEST WAS MADE ON 13.8.2009 15.3.2010 16.8.2010 AND 26.8.2010. WE HAVE SPECIF ICALLY ASKED THE REVENUE TO SHOW WHICH DOCUMENTS WERE SUPPLIED AND W HICH DOCUMENTS WERE STILL NOT SUPPLIED ON THE FIRST DATE. IT SEEM S THAT THE LD. CIT-D.R HAD SPECIFICALLY WRITTEN LETTERS TO THE CONCERNED OFFIC ERS FOR OBTAINING THIS INFORMATION AND IN THIS REGARD WE WOULD LIKE TO REP RODUCE FIRST LETTER WRITTEN BY DCIT ITAT ON 13.5.2014 WHICH IS AS UNDE R: NO. CIT/ITAT/2014-15/80 DATED: 13.05.2014 TO THE DY. COMMISSIONER OF INCOME TAX 12 CENTRAL CIRCLE-I CHANDIGARH SIR SUB: ITA NOS. 1054 TO 1057/CHD/2013 IN THE CASE OF SWAMI DEVI DAYAL HIGHTECH EDUCATION ACADEMY A.YS. 2003-04 TO 2009-10- REGARDING IN REFERENCE TO THE ABOVE CASE FIXED FOR HEARING BE FORE THE HONBLE ITAT CHANDIGARH ON 13.05.2014 THE ASSESSEE HAS TAKEN UP PLEA THAT DURI NG THE ASSESSMENT PROCEEDINGS DESPITE SEVERAL WRITTEN REQUESTS HE WAS NOT PROVIDED THE PHOTOCOPI ES OF SEIZED DOCUMENTS IN TIME SO AS TO EFFECTIVELY REPRESENT HIS CASE BEFORE THE ASSESSING OFFICER AND OTHER SUPERIOR AUTHORITIES. IN THIS REGARD THE HO NBLE BENCH HAS DESIRED A DATE WISE TABULATION CHART DEPI CTING AS TO ON WHAT DATE SUCH REQUESTS WERE MADE AND CONSEQUENTLY WHICH OF DOCUMENTS WERE SUPPLIED T O THE ASSESSEE (ALONGWITH DATE WISE PROOF OF SUCH RECEIPTS). SIMILAR DATA IF ANY PERTAINING TO THE DOCUMENTS R EQUESTED AND RECEIVED BY THE ASSESSEE FROM INVESTIGATION WING IS ALSO TO BE INCORPORATED IN TH E SAID TABLE. YOU ARE FURTHER REQUESTED TO SEND THE ASSESSMENT RECORDS IN ABOVE CASE FOR A.Y. 2003-04 T O A.Y. 2009-10. THE NEXT DATE OF HEARING IN THE SAID APPEAL IS 16 TH & 17 TH JUNE 2014. YOU ARE REQUESTED TO SENT YOUR COMMENTS / REPLY ON OR BEFORE 31.05.2014. PLEASE TREAT IT AS MOST URGENT. YOURS FAITHFULLY SD/- (AKHILESH GUPTA) DY. COMMISSIONER OF INCOME TAX ITAT CHANDIGARH TO THIS LETTER TWO REPLIES HAVE BEEN MADE BY THE DC IT WHICH ARE AS UNDER: GOVERNMENT OF INDIA INCOME TA DEPARTMENT OFFICE OF THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-I ROOM NO. 2 AAYAKAR BHAWAN SECTOR 17-E CHANDIGARH F.NO. DCIT/CC-I/CHD/2014-15/1122 DATED: 01/08/20 14 TO THE DY. COMMISSIONER OF INCOME TAX (ITAT) SECTOR-17 E CHANDIGARH SIR SUB: ITA NOS. 1054 TO 1057/CHD./2013 IN THE CASE O F M/S. SWAMI DEVI DAYAL HI-TECH. EDUCATION ACADEMY ASST. YEARS 2003-04 TO 2009-10- REGARDING- KINDLY REFER TO YOUR OFFICE LETTER F.NO. CIT/ITAT/ 2014-15/80 DATED 13.05.2014 ON THE SUBJECT CITED ABOVE. IN THIS REGARD UPON PERUSAL OF ASSESSMENT RECORD IT IS FOUND THAT THE ASSESSEE HAS ACKNOWLEDGED RECEIPT OF PHOTOCOPIES OF DOCUMENTS DU RING THE MONTH OF JUNE AND JULY 2009 VIDE ITS LETTER DATED 31.08.2009 RECEIVED IN THIS OFFICE ON 01.09.2009. THE ASSESSEE FURTHER SUBMITTED THAT IT HAD NOT RECEIVED COMPLETE PHOTOCOPIES (COPY ENCLOSED). BUT NO FURTHER CORRESPONDENCE IS ON THE RECORD WITH RESPECT TO PROVIDING PHOTOCOPIES OF SEIZED DOCUMENTS. BUT UPON PERUSAL OF THE ASSESSMENT ORDERS IT IS F OUND THAT A SCANNED LETTER WRITTEN BY SH. ROSHAN LAL JINDAL ADDRESSED TO THE ADIT(INV.)-III CHANDIGARH IS PART OF ASSESSMENT ORDER ITSELF IN WHICH HE HAS ACKNOWLEDGED THE RECEIPT OF SEIZED MATERIAL ON 13.09.2008 (COPY ENCLOSED). 13 AS DESIRED THE ASSESSMENT RECORDS IN THIS CASE AR E ENCLOSED HEREWITH AS GIVEN BELOW: SR. NO. NAME OF THE ASSESSEE A.Y. PAGES CONTAINED 1. M/S. SWAMI DEVIL DAYAL HI-TECH. EDUCATION ACADEMY VILL. GOLPURA THE BARWALA DISTT. PANCHKULA 2003-04 N-6 C-395 2. --DO-- 2004-05 N-6 C-484 3 --DO-- 2005-06 N-6 C-607 4 --DO-- 2006-07 N-7 C-409 5 --DO-- 2008-09 N-6 C-535 6 --DO-- 2009-10 N-5 C-433 FURTHER THE INFORMATION PERTAINING TO CORRESPONDEN CE BETWEEN THE ASSESSEE AND THE INVESTIGATION WING IF ANY MAY BE SOUGHT DIRECTLY FROM THE INVES TIGATION WING. YOURS FAITHFULLY SD/- (DR. RAMAN GARG) DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE- I CHANDIGAR ENCL: (AS ABOVE ASSTT. RECORD IN SIX VOL.) WE HAVE ALSO PERUSED THE ORDER SHEETS DURING ASSESS MENT PROCEEDINGS WHICH READS AS UNDER: 14 15 16 17 PERUSAL OF ABOVE SUBMISSIONS AND LETLTER OF DCIT CE NTRAL CIRCLE AND ORDER SHEETS DURING ASSESSMENT PROCEEDINGS SHOW THAT ORDE R SHEET HAS BEEN DRAFTED ON COMPUTER WHICH ITSELF IS VERY UNUSUAL. NORMALLY ORDER SHEETS ARE WRITTEN IN THE PERSONAL HANDWRITING OF THE ASSE SSING OFFICER WE WONDER WHETHER ORDER SHEET HAS BEEN WRITTEN ON DATE S MENTIONED IN THE ORDER SHEET OR THEY HAVE BEEN GENERATED ON A PARTIC ULAR DATE. FURTHER PERUSAL OF THE ORDER SHEET WOULD SHOW THAT THERE IS NO REFERENCE TO RECEIPT OF LETTER FOR SUPPLY OF DOCUMENTS AND NO DETAILS AR E INCORPORATED WHETHER THE DOCUMENTS WERE REALLY SUPPLIED OR NOT? THEREFO RE ONLY ASSUMPTION POSSIBLE IS THAT STATEMENT OF THE ASSESSEE ARE CORR ECT AND COMPLETE DOCUMENTS HAVE NOT BEEN SUPPLIED TILL THE END OF AU GUST 2010. THEREAFTER A SHOW CAUSE NOTICE FOR CONDUCTING OF SP ECIAL AUDIT WAS ISSUED ON 28.9.2010 WHICH THE ASSESSEE OBJECTED VIDE LETTE R DATED 11.10.2010. THE ASSESSING OFFICER REJECTED THE SAME AND APPROVA L OF THE COMMISSIONER FOR CONDUCTING OF SPECIAL AUDIT WAS SO UGHT ON 14.10.2010. APPROVAL WAS GIVEN BY THE COMMISSIONER ON 11.11.201 0. AUDIT WAS COMPLETED ON 13.5.2011 AND AUDIT REPORT WAS SUBMIT TED TO THE ASSESSING OFFICER ON 13.5.2011. RETURN OF INCOME HAS BEEN FI LED ON 1.4.2011. THEREFORE ONCE THE DOCUMENTS WERE NOT PROVIDED TILL THE END OF AUGUST 2010 AND A PROPOSAL FOR SPECIAL AUDIT WAS INITIATED ONLY TOWARDS END OF 2010 THE ASSESSEE CAN NOT FILE RETURN UNLESS AND UN TIL COMPLETE DOCUMENTS ARE AVAILABLE. 23 PERUSAL OF ABOVE ORDER SHEETS ALSO SHOW THAT FOR THE FIRST TIME NOTICE U/S 142(1) HAS BEEN ISSUED ON 28.9.2010 ALONG WITH THE DETAILED QUESTIONNAIRE (A COPY OF QUESTIONNAIRE WAS NEVER BR OUGHT TO OUR KNOWLEDGE). IT WAS STATED BEFORE US THAT ONLY ONE SHOW CAUSE NOTICE WAS ISSUED ON 16.6.2011. AFTER FILING OF RETURN A NOTI CE U/S 143(2) HAS BEEN ISSUED ON 20.4.2011 BUT IT BECOMES CLEAR THAT NO QU ESTIONNAIRE WAS ISSUED ON THIS DATE. THEREAFTER ANOTHER NOTICE U/S 142(1) ALONG WITH 18 QUESTIONNAIRE WAS ISSUED FIXING THE HEARING FOR 4.5 .2011 ON 21.4.2011. THEREFORE FOR PRACTICAL PURPOSES IT CAN BE SAID THA T IF EFFECTIVE HEARING STARTED ON 4.5.2011 AND THE ASSESSMENT HAS BEEN COM PLETED ON 12.7.2011. THIS CLEARLY SHOWS THAT LESS THAN 70 DA YS WERE AVAILABLE WITH THE ASSESSING OFFICER FOR COMPLETION OF 165 ASSESSM ENTS. PERUSAL OF THE ORDER SHEETS FURTHER SHOWS THAT NOWHERE IT IS DISCU SSED THAT WHAT WERE THE REPLIES ALREADY FILED BY THE ASSESSEE AND WHAT ARE THE POINTS ON WHICH BALANCE OF INFORMATION WAS STILL REQUIRED TO BE FILED BY THE ASSESSEE WHICH IS THE NORMAL PRACTICE. ALL THIS CLEARLY SHOW THAT THE ASSESSEE WAS NOT PROVIDED ADEQUATE OPPORTUNITY AND WAS NOT CONFR ONTED WITH PARTICULAR QUERY. 24 IN THE ABOVE SITUATION THE ASSESSEE HAD NO ALTER NATIVE BUT TO FILE ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A). THE LD. CIT(A) BASICALLY OBSERVED THAT IT HAS NOT BEEN PROVED THAT THE ASSES SEE DID NOT HAVE SUFFICIENT OPPORTUNITY TO FILE ALL THESE EVIDENCES BEFORE THE ASSESSING OFFICER THEREFORE ADDITIONAL EVIDENCE WAS NOT REQU IRED TO BE ADMITTED. HOWEVER SOME OF THE ADDITIONAL EVIDENCES WERE ADMI TTED. SHE ALSO OBSERVED THAT ASSESSMENT HAS BEEN FINALIZED LARGELY ON THE BASIS OF SPECIAL AUDIT REPORT. AFTER DISCUSSING THIS ISSUE IN DETAIL FOLLOWING OBSERVATIONS HAVE BEEN MADE: IN OTHER WORDS IT IS TO BE NOTED THAT THE REQUEST OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF IT RULES 1962 IS NOT BEING ACCEDED TO IN TOTO HAS NEVER HELD THAT SUFFICIENT OPPORTUN ITY WAS AFFORDED TO THE ASSESSEE DURING ASSESSMENT PROCEEDINGS. WE HAVE PERUSED THE IMPUGNED ORDER BUT WE DID NOT F IND ANY REASONS WHICH HAVE BEEN GIVEN BY THE LD. CIT(A) TO ADMIT SO ME PORTION OF THE ADDITIONAL EVIDENCE AND IGNORE OTHER PORTION. EVEN IT IS NOT DISCUSSED WHICH EVIDENCE HAS BEEN ADMITTED AND WHICH EVIDENCE IS NOT ADMITTED. THIS IS VERY STRANGE BECAUSE LEGAL PRINCIPLES ON AD MISSION OF ADDITIONAL EVIDENCE ARE VERY CLEAR AND IF ADDITIONAL EVIDENCE IS ADMITTED OR REJECTED THE SAME HAS TO BE SUPPORTED BY GIVING SPECIFIC REA SONS. WHEREVER ADDITIONAL EVIDENCE WAS ADMITTED BY THE LD. CIT(A) WAS REFERRED FOR 19 VERIFICATION IN THE REMAND PROCEEDINGS TO THE ASSE SSING OFFICER. REMAND REPORT WAS ULTIMATELY SUBMITTED FOR ASSESSMENT YEAR 2003-04 TO 2005-06 ON 4.12.2012. FOR ASSESSMENT YEAR 2006-07 TO 2009 -10 FIRST REMAND REPORT WAS PREPARED ON 8.4.2013. THIS REPORT WAS W ITHDRAWN. SAME SEEMS TO BE PARTLY IN FAVOUR OF THE ASSESSEE. WE H AVE RAISED SPECIFIC QUERY WHY THIS REPORT WAS NOT ACCEPTED. IN REPLY G IVEN BY THE DCIT CENTRAL CIRCLE CHANDIGARH TO THE LD. CIT-D.R VIDE LETTER DATED 19.8.2014 THIS ISSUE HAS BEEN DEALT IN PARA 3 & 4 WHICH ARE AS UNDER: SECONDLY IT IS BEING REITERATED THAT EH FIRST REMA ND REPORT WAS JUST A DRAFT REPORT AND NO COGNIZANCE MAY BE TAKEN OF THE SAME. THE ADDL CIT GAVE DIRECTIONS FOR PREPARATION OF REMAND REPORT UNDER H IS LETTER F. NO. ADDL.CIT/CENTRAL/CHD/2013-14/170 DATED 24.4.2013 (C OPY ENCLOSED WHICH HIS SELF EXPLANATORY. FINAL REMAND REPORTS DATED 26.7. 2013 WERE PREPARED AFTER CONSIDERING ALL THE REPLIES FILED BY THE ASSESSEE A ND SUBMITTED. FURTHER THE SECOND REMAND REPORTS WERE FINALIZED AF TER CONSIDERING THE REPLIES SUBMITTED BY THE ASSESSEE (INCLUDING PAPER BOOKS) A ND THERE DID NOT ARISE ANY NEED TO CALL THE ASSESSEE. ANOTHER EXPLANATION GIVEN VIDE LETTER DATED 2.7.201 4 BY DCIT CENTRAL CIRCLE CHANDIGARH TO ADDL CIT WHICH READS AS UNDER : GOVERNMENT OF INDIA INCOME TA DEPARTMENT OFFICE OF THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-I ROOM NO. 2 AAYAKAR BHAWAN SECTOR 17-E CHANDIGARH NO. DCIT/CC-I/CHD/2014-15/950 DATED: 02/07/2014 TO THE ADDL. COMMISSIONER OF INCOME TAX RANGE CENTRAL CHANDIGARH SIR SUB: ITA NO. 1126 TO 1128/CHD/2013 IN THE CASE OF M/S SWAMI DEVI DAYAL HI-TECH EDUCATION ACADEMY PANCHKULA-REGARDING KINDLY REFER TO THE SUBJECT CITED ABOVE. IN THIS REGARD IT IS SUBMITTED THAT THE ASSESSMEN TS WERE FRAMED IN THE CASES OF THE ABOVE MENTIONED ASSESSEE AFTER GETTING A SPECIAL AUDIT DO NE AND AFTER THROUGH PERUSAL OF SEIZED RECORDS. THE ASSESSEE WAS GIVEN REPEATED OPPORTUNITIES VIDE VARI OUS SHOW CAUSE LETTERS/QUESTIONNAIRES FOR PROVIDING THE EVIDENCE AND THE ASSESSMENT WERE ACCORDINGLY FR AMED. AGAINST THE ORDERS OF THE AO THE ASSESSEE FILED APPEALS BEFORE CIT(A) WHO ASKED FOR A REMAND REPORT FROM THE AO ON THE ADDITIONS MADE IN ASSESSMENT ORDERS. IN THIS BACKGROUND DRAFT REMAND REPORTS WERE PREPARED BY A COMMITTEE COMPRISING OF INSPECTOR AND SR. TA. BUT THOSE REMAND REPORTS HAD CERTAIN FLAWS AND WERE NOT FORWARDED. THE REMAND REPORTS WERE MADE IN HASTE AS THE THEN AO WAS BUSY IN TIME BARRING MATTERS TILL 31.03.2014 AND THEREAF TER SHE PROCEEDED ON MATERNITY LEAVE. THE COMMITTEE WH ICH WAS FORMED CONSISTING OF ONE INSPECTOR NAMELY SH. S.K. SEHGAL AND SR. TA NAMELY SH. RAHUL KUMAR DID NOT KNOW THE FACTS OF THE WHOLE CASE. IT IS RESPECTFULLY SUBMITTED THAT THE ASSESSMENT ORDERS W ERE FRAMED BY DCIT AND THEREFORE IN INSPECTOR/SR. T A DID NOT HAVE AUTHORITY AND EXPERTISE TO COMMENT. IT WAS THE SOLE RESPONSIBILITY OF THE ASSESSING OFFIC ER TO HAVE PREPARED THE REPORTS. ON MERITS THE REPORTS SU FFERED FROM VARIOUS INCONSISTENCIES / IN CONGRUENCI ES WHICH ARE DETAILED BELOW: 20 A) MOST OF THE CONTENTIONS RAISED BY THE ASSESSEE D URING THE PROCEEDINGS BEFORE THE CIT(A) SEEM MERELY AN AFTERTHOUGHT. FOR INSTANCE IN A.Y. 2006- 07 AN ADDITIONS OF RS. 11 73 250/- WAS MADE ON ACCOUNT OF CAPITATION FEES AS UNDISCLOSED INCOME OF THE SOCIETY. A THOROUGH SHOW CAUSE WAS ISSUED TO THE ASSESSEE IN THIS REGARD DURING THE AS SESSMENT PROCEEDINGS. BUT IN THE REMAND REPORT PREPARED BY THE COMMITTEE THE CONTENTION OF THE ASSESSEE WAS FOUND TO BE CORRECT UP TO THE EXTENT OF RS. 9 70 575/- DESPITE THE FACT THAT THE ASSESSEE FAILED TO RECONCILE THE SAME WITH THE ADDITIONS PROPOSED IN SHOW CAUSE. B) SIMILARLY IN THE SAME A.Y. 2006-07 ADDITION OF RS. 78 61 000/- WAS MADE ON ACCOUNT OF UNRECORDED AMOUNTS RECEIVED FROM STUDENTS OVER AND ABOVE THE FEE AMOUNT FIXED BY THE SOCIETY. THE COMMITTEE IN ITS REPORTS FOUND ENTRIES WORTH RS . 54 18 000/- AS CORRECT. A THOROUGH SHOW CAUSE WAS GIVEN TO THE ASSESSEE ON THIS ISSUE DURIN G THE ASSESSMENT PROCEEDINGS TO WHICH THE ASSESSEE SUBMITTED THAT THE LOOSE DOCUMENTS FOUND I N THE SEARCH WERE JUST THE WASTE PAPERS. BUT BEFORE THE CIT(A) THE ASSESSEE SUDDENLY COMES WITH AN EXPLANATION BY FURNISHING VARIOUS CHARTS. THE ASSESSEE HAS TAKEN TWO VERY DIFFERENT S TANDS AND HIS CONTENTIONS SEEM UNRELIABLE. HENCE NO RELIEF CAN BE GIVEN TO THE ASSESSEE AS PR OPOSED IN THE REMAND REPORT PREPARED BY THE COMMITTEE. THESE INSTANCES ARE MERELY INDICATIVE IN NATURE. TH ERE ARE SIMILAR DISCREPANCIES IN THE REMAND REPORTS PREPARED BY THE COMMITTEE IN DIFFERENT ASSE SSMENT YEARS AS THE COMMITTEE HAD NOT GONE INTO DETAILS OF THE SEIZED MATERIALS/DOCUMENTS/APPRAISAL REPORTS. SINCE THE ASSESSING OFFICER HAD TO GO ON MATERNITY LEAVE AND THERE WAS PRESSURE ON HER TO SU BMIT THE REPORTS SHE MERELY FORWARDED THE REPORTS OF THE COMMITTEE TO THE ADDL. CIT(C). IT IS KINDLY BRO UGHT TO THE KNOWLEDGE THAT THIS REPORT WAS NEVER APPROVED BY THE RANGE HEAD ON MERITS AND RETURNED T O THE AO FOR RECONSIDERATION AND WAS ALSO DIRECTED TO EXAMINE THE ISSUES RAISED IN THE REPORT. AFTER D OING THROUGH VERIFICATION AGAIN A REMAND REPORT WA S SUBMITTED WITH ADDITIONAL CIT RANGE OFFICE. THIS REPORT OF THE SO CALLED COMMITTEE WAS ONLY INT ERNAL AND IF AT ALL IT IS IN THE POSSESSION OF THE ASSESSEE IT IS UNLAWFUL AND ACTION SHOULD BE TAKEN AGAINST THEM AS HOW HAVE THEY LAID HANDS ON SUCH INTERNAL REPORT. BECAUSE OF THE VERY FACT THAT THE ASSESSEE HAVE QUOTED THE REPORTS OF SO CALLED COMMI TTEE BEFORE HONBLE ITAT IT APPEARS THAT THERE MIGHT BE SOME NEXUS BETWEEN THE COMMITTEE AND THE ASSESSEE. THOUGH THERE IS NO SUCH EVIDENCE BEFORE T HE DEPARTMENT ON THE NEXUS BUT PREPONDERANCE OF PROBABILITY AND SEQUENCE OF EVENTS SUGGEST SUCH POS SIBILITIES. HAVING SAID THE ABOVE WE ARE OF THE FIRM VIEW THAT NO COGNIZANCE OUGHT TO BE TAKEN ON REPORT PREPARED BY NON COMPETENT NON WELL VERSED COMMITTE E AND IT IS REQUESTED THAT THE SUBMISSION OF THE ASSESSEE BEFORE HONBLE ITAT REGARDING REPORT OF TH E COMMITTEE RECEIVED NOT BE GIVEN ANY CREDENCE. IT IS REQUESTED THAT REMAND REPORTS DATED DATED 26.07.201 3 MAY BE TREATED AS FINAL REPORTS. FURTHER AS PER PROVISIONS OF THE INCOME TAX LAW NO SUCH COMMITTEE CAN BE FORMED. MOREOVER AS PER RECORD NO PRIOR APPROVAL OF THE RANGE HEAD WAS TAKEN BEFORE FORMING SUCH A COMMITTEE. YOURS FAITHFULLY SD/- (DR. RAMAN GARG) DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE- I CHANDIGARH PERUSAL OF ABOVE CLEARLY SHOW THAT NO ANSWER HAS BE EN GIVEN TO THE QUERY WHETHER THERE IS ANY BAR IN THE ACT FOR CONSTITUTIO N OF A COMMITTEE. DAY IN DAY OUT WE COME ACROSS CASES WHERE REVENUE CONSISTE NTLY CONDUCT VARIOUS QUERIES THROUGH THE INSPECTORS. THERE IS N O BAR IN THE ACT FOR DELEGATION OF POWERS DURING ASSESSMENT OR REMAND PR OCEEDINGS FOR VERIFICATION OF VARIOUS DOCUMENTS. FOR EXAMPLE ONE OF THE ADDITION IS MADE ON ACCOUNT OF TOTAL FEES RECEIVED FROM THE ST UDENTS WHICH ACCORDING TO THE ASSESSING OFFICER HAS NOT BEEN CRE DITED OR REMAINS 21 UNREPORTED. WE ALSO CALLED FOR BOOKS OF ACCOUNT AN D VERIFIED ONLY TWO ENTRIES ON ACCOUNT OF UNRECORDED FEES IN CASE OF R AVINDER KATARIA AND AKSHAY WHERE WE HAVE FOUND THAT FEE WAS SPLIT INTO VARIOUS HEADS LIKE TUITION FEE AND POSTAL FEES. 25 FOR EXAMPLE IN CASE OF AKSHAY KUMAR A SUM OF RS. 36 000/- WAS FOUND TO BE CREDITED IN CASH BOOK ON 14.7.2005 UNDE R THE HEAD HOSTEL CHARGES RECEIVED VIDE CR NO. 5281. SIMILARLY FURT HER A SUM OF RS. 3500 WAS FOUND CREDITED ON THE SAME DATE VIDE CR NO. 528 2 TO HOSTEL SECURITY ACCOUNT. IN CASE OF RAVINDER KATARIA FOLLOWING CRE DITS HAVE BEEN MADE AS UNDER: DATE CR NO ACCOUNTING HEAD AMOUNT 23.7.2005 163 TUITION FEE RS. 4100 8.8.2005 201 TUITION FEE RS. 2000 DEVELOPMENT CHARGES RS. 500 ELIGIBILITY FEE RS. 1150 EXAMINATION FEE RS. 450 STUDENT FEE RS. 1500 TUITION FEE RS. 23900 TOTAL RS. 33650 FROM ABOVE IT BECOMES CLEAR THAT AN AMOUNT RECEIVED FROM A PARTICULAR STUDENT WAS CREDITED UNDER VARIOUS HEADS AND THE RE VENUE HAS NOT BOTHERED TO VERIFY THE SAME AND MADE ADDITIONS ON A CCOUNT OF UNRECORDED RECEIPTS. IN RESPONSE TO OUR QUERY WHETHER A OPPOR TUNITY WAS GIVEN IN RESPECT OF REMAND REPORTS FURNISHED FOR ASSESSMENT YEAR 2003-04 TO 2005-06 IT IS SIMPLY STATED THAT ALL THE INFORMATI ON WAS DULY VERIFIED. THESE EVIDENCES WERE SUBMITTED BEFORE THE LD. CIT(A ) ON 9.3.2012 AND THE REMAND REPORTS HAVE BEEN ULTIMATELY FURNISHED O THE LD. CIT(A) ON 4.12.2012 THEREFORE THESE DOCUMENTS WERE LYING WIT H THE ASSESSING 22 OFFICER OFFICE FOR NINE MONTHS BUT NO OPPORTUNITY W AS GIVEN TO THE ASSESSEE TO RECONCILE THE AMOUNT AND OFFICERS HAVE LOOKED ONLY TO ONE ACCOUNT AND CONCLUDED THAT BALANCE AMOUNT IS NOT RE CORDED IN THE BOOKS AND ADDITION HAS BEEN MADE EITHER UNDER THE HEAD C APITATION FEES FOR THE AMOUNT WHICH WAS NOT CREDITED OR UNDER THE HEAD UNRECORDED FEES. IN OUR OPINION UNLESS THE AMOUNTS ARE LOOKED UNDER THE VARIOUS HEADS FOR WHICH SEPARATE LEDGER ACCOUNTS ARE MAINTAINED THE REVENUE MAY COME TO A WRONG CONCLUSION THAT WHOLE OF THE AMOUNT HAS NOT BEEN CREDITED. THEREFORE IT WAS NECESSARY TO CALL THE ASSESSEE AND CONFRONT IT WITH WHATEVER DOUBTS THE OFFICER WAS ENTERTAINING SO THA T THE ASSESSEE COULD HAVE GIVEN CLARIFICATION WHICH WOULD ENABLE THE REV ENUE TO GIVE TO JUST CONCLUSION. 26 AS FAR AS ASSESSMENT YEAR 2006-07 TO 2009-10 AR E CONCERNED THE SUBMISSIONS WERE MADE BEFORE THE LD. CIT(A) ON JULY 2012 AND THE FIRST REMAND REPORT WAS PREPARED ON 8.4.2013 THAT IS ALMO ST AFTER EIGHT MONTHS. SINCE THESE REPORTS WERE PARTIALLY IN FAVOUR OF THE ASSESSEE THEY WERE WITHDRAWN AND THE SAME WERE STATED BEFORE US TO BE DRAFT REPORT BUT NO BASIS HAS BEEN GIVEN BY THE ADDL CIT. IN THIS CONN ECTION COPY OF THE LETTER DATED 24.4.2013 WRITTEN BY ADDL CIT TO DCIT READS AS UNDER: F NO. ADDL CIT/CENTRAL/CHD/2013-14/170 DT . 24.4.2013 TO THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE I CHANDIGARH SUB: REMAND REPORT IN THE CASE OF M/S SWAMI DEVI DY AL HI TECH EDUCATION ACADEMY VILLAGE GOLPURA BARWALA SUBMISSION OF R EPORT ON APPLICATION UNDER RULE 46A AND WRITTEN SUBMISSIONS ASSESSMENT YEAR 2006 -07 TO 2009-10 REGARDING THE REMAND REPORTS AS SUBMITTED BY THE ASSESSING OF FICER ARE RETURNED WITH FOLLOWING REMARKS: REMAND REPORTS HAVE BEEN PREPARED IN HASTE WITHOU T PROPER APPLICATION OF MIND. REMAND REPORTS ARE HEAVILY BIASED IN FAVOUR OF THE ASSESSEE AND THE RESULT OF THE ASSESSMENT ORDERS HAVE BEEN TOTALLY P LACED WITH. IT IS INTRIGUING TO NOTE AS TO WHY THE ASSESSING OFFICER HAS RELIED UPON REPORTS OF INSPECTOR SHRI S.K. SEHGAL AND SR. T.A. SHRI RAHUL KUMAR. IN VIEW OF THE ABOVE REMARKS AND GLARING INCONSISTE NCIES YOU ARE DIRECTED TO PUT UP FRESH REMAND REPORTS TAKING INTO ACCOUNT THE ASSESS MENT ORDERS SEIZED DOCUMENTS 23 AND SUBMISSION MADE BY THE ASSESSEE. THE FRESH REM AND REPORTS INCORPORATING THE CHARGES SHOULD BE SUBMITTED BY 3.5.2013. SD/- (RAJEEV KUMAR) ADDL COMMISSIONER OF INCOME TAX RANGE (CENTRAL) CHANDIGARH ABOVE DOES NOT SHOW ANY REASON WHY THESE REPORTS WE RE REJECTED. FURTHER IF SUCH REMAND REPORTS WERE PREPARED IN HAS TE AND WITHOUT PROPER APPLICATION OF MIND WE FAIL TO UNDERSTAND WHY NO D ISCIPLINARY ACTION WAS TAKEN AGAINST SUCH ERRING STAFF MEMBERS. THOUGH IN OUR OPINION THERE IS NO BAR ON DELEGATION OF POWER FOR VERIFICATION OF D OCUMENTS IN ASSESSMENT PROCEEDINGS OR REMAND PROCEEDINGS. BUT IF THE COMM ITTEE WAS ILLEGALLY CONSTITUTED THE REVENUE SHOULD HAVE SHOWN US HOW SU CH COMMITTEE WAS ILLEGAL. EVEN IF IT IS ASSUMED WHATEVER IS STATED IS CORRECT THEN WHILE MAKING SECOND REPORT THE REVENUE SHOULD HAVE CALLED THE ASSESSEE AND ASK FOR VARIOUS EXPLANATIONS ON VARIOUS DOCUMENTS F ILED WHICH RAN INTO THOUSANDS OF PAGES. THE LD. CIT-D.R HAD SUBMITTED T HAT PROPER OPPORTUNITY WAS GIVEN. WE REPRODUCE THE CONTENTS O F WRITTEN SUBMISSIONS IN THIS REGARD WHICH ARE AS UNDER: ASSESSEE IN HIS BRIEF SYNOPSIS OF ADDITIONAL EVIDE NCE HAS STATED THAT FOR ASSESSMENT YEAR 2003-04 PAGE 227 & 228 OF PAPER BO OK ASSESSING OFFICER SHOULD HAVE MADE THE VERIFICATION. ASSESSEE FAILED TO REALIZE THAT DESPITE SEVERAL OPPORTUNITY ASSESSEE HAD ONLY SUBMITTED THE NAMES AND ADDRESSES OF THE DONORS ONLY BEFORE ASSESSING OFFICER AND SPECIA L AUDITOR AND ASSESSING OFFICER HAS SENT THE REMAND REPORT ONLY AFTER CONSI DERING THE SUBMISSIONS OF ASSESSEE AND ALSO THE ONUS IS ON THE ASSESSEE TO PR OVE THE IDENTITIES GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE DONORS AND NOT ON THE DEPARTMENT. REGARDING PAPER BOOK PAGE 229 NON AVAI LABILITY OF BILLS IT IS SUBMITTED ASSESSEE HAD TAKEN THE CDS AND HE COULD H AVE EXPLAINED THE ENTRIES. HE ALSO FAILED TO REALIZE THAT NO BILLS W ERE FOUND DURING THE COURSE OF SEARCH. REGARDING PAPER BOOK PAGE 231 AT 2003-04 A SSESSEE FAILS TO REALIZE THAT ASSESSING OFFICER HAD ASKED FOR CONFIRMATION O F THE SUNDRY CREDITORS RECORDED IN THE BOOKS WHICH HAS NOT BEEN SUBMITTED AND THEREFORE ONUS HAS NOT BEEN DISCHARGED BY THE ASSESSEE. NOW IF THE ASSESSEE HAS FILED NAME AND ADDRESS OF T HE PERSON AND HIS PAN CONFIRMATIONS IN RESPECT OF DONATIONS SAME MAY BE ACCEPTED AS SUCH AND IN CASE REVENUE HAS ANY DOUBT THEN THE ASSESSIN G OFFICER SHOULD HAVE CALLED THE ASSESSEE AND ASKED IT TO PRODUCE FU RTHER PAPERS OR PRODUCE THE DONORS BUT THE EVIDENCE CANNOT BE REJEC TED SIMPLY SAYING THAT FULL PROOF EVIDENCE WAS NOT FILED. IT IS ONLY THE ASSESSING OFFICER WHO CAN SAY WHAT OTHER EVIDENCES WERE RELEVANT AND THEN ASK ASSESSEE TO FILE 24 AND/OR CLARIFY THE SAME. THEREFORE IT BECOMES CLEA R THAT WHATEVER ADDITIONAL EVIDENCE WAS FILED HAS NOT BEEN PROPER LY EXAMINED BECAUSE ASSESSEE WASSNEVER CALLED TO EXPLAIN AND/OR CLARIFY THE DOCUMENTS. 27 BOTH THE PARTIES BEFORE US HAVE RELIED ON VARIOU S CASE LAWS DEALING WITH VARIOUS FACETS OF ADMISSION OF ADDITIONAL EVID ENCE. WE HAVE PERUSED THESE JUDGMENTS CAREFULLY AND PRINCIPLE REMAINS SAM E AND THEREFORE WE ARE NOT DISCUSSING THESE JUDGMENTS IN DETAIL. WE W OULD LIKE TO REFER TO THE DECISION OF HON'BLE HIGH COURT OF PUNJAB & HARYANA IN CASE OF CIT V. MUKTA METAL (SUPRA). IN THAT CASE WHILE DEALING WI TH Q NO. 5 WHICH RELATED TO ADMISSION OF ADDITIONAL EVIDENCE AND THE HON'BLE COURT OBSERVED LAT PARA 15 AS UNDER: AS REGARDS Q NO. 5 RELATING TO THE ADDITIONAL EVID ENCE WE ARE OF THE OPINION THAT THE REPORT OF THE FORENSIC SCIENCE LABORATORY WAS A RELEVANT MATERIAL AND SO WAS THE AFFIDAVIT DATED DEC 27 2004 OF THE SEARC HED PERSON. THE ADDITIONAL EVIDENCE WAS NECESSARY FOR JUST DECISION OF THE MAT TER. AT BEST THE DEPONENT COULD BE PRODUCED FOR CROSS-EXAMINATION. THE ADDIT IONAL EVIDENCE CAN BE ALLOWED IN THE INTEREST OF JUSTICE IF THE SAME IS A UTHENTIC AND NECESSARY FOR THE DECISION OF EH ISSUE RAISED BEFORE THE TRIBUNAL. I N THE FACTS AND CIRCUMSTANCES THE TRIBUNAL WAS NOT JUSTIFIED IN DECLINING TO CONS IDER THE ADDITIONAL EVIDENCE COMPRISING THE OPINION OF THE LABORATORY OF THE GOV ERNMENT EXAMINER AND ALSO THE AFFIDAVIT OF THE AUTHOR OF THE DIARY THOUGH TH E DOCUMENTS HAD A DIRECT BEARING ON THE ISSUE. THE QUESTION IS ANSWERED ACC ORDINGLY IN FAVOUR OF THE REVENUE. FROM ABOVE IT BECOMES CLEAR THAT IF THE ADDITIONAL EVIDENCE IS AUTHENTICATED AND NECESSARY FOR THE DECISION THEN S AME IS REQUIRED TO BE ADMITTED. 28 RECENTLY THIS ISSUE CAME UP FOR CONSIDERATION OF THE HON'BLE SUPREME COURT IN CASE OF TEK RAM (DEAD THROUGH LRS ) V CIT 357 ITR 133 (S.C). IN THAT CASE SOME ADDITIONAL EVIDENCE W AS SUBMITTED BEFORE THE HON'BLE SUPREME COURT. HON'BLE COURT AT PARA 4 & 5 OBSERVED AS UNDER: 4 IN OUR OPINION THE DOCUMENTS WHICH THE APPELLAN TS HAVE NOW FILED BEFORE THIS COURT ARE OF SOME RELEVANCE AND THOSE DOCUMENT S SHOULD BE LOOKED INTO BY THE HIGH COURT BEFORE IT COMES TO A CONCLUSION WHE THER THE APPEAL REQUIRES TO BE ALLOWED OR TO BE REJECTED. 5 TAKING THAT VIEW OF THE MATTER WE SET ASIDE THE ORDER PASSED BY THE HON'BLE HIGH COURT AND REMAND THE MATTER BACK TO T HE HON'BLE HIGH COURT FOR FRESH DISPOSAL OF ITA NO. 109 OF 2005 AFTER ACCEPT ING THE DOCUMENTS THA WERE/MAY BE FILED BY THE APPELLANTS. 25 THUS IF THE EVIDENCE IS RELEVANT AND GOES TO THE RO OT OF THE MATTER EVEN IF SAME IS FILED BEFORE THE HON'BLE SUPREME COURT SA ME WAS DIRECTED TO BE ADMITTED AND THE MATTER WAS REMANDED. 29 HOWEVER EVIDENCE CAN BE ADMITTED ONLY IF SAME I S FOUND TO BE AUTHENTIC. THE LD CIT-D.R HAS SHOWN HER INABILITY TO VERIFY THE SAME BECAUSE ADDITIONAL EVIDENCE WAS RUNNING INTO MORE T HAN 5000 PAGES. IN OUR OPINION EVEN WE CANNOT VERIFY THE SAME. FOR E XAMPLE LIST OF 294 PERSONS ALONG WITH RECEIPTS CONFIRMATIONS AND PANS AND IDENTITY PROOF IN THE FORM OF DRIVING LICENSE OR OTHER DOCUMENTS HAVE BEEN FILED FOR DONATIONS. NOW IT IS ALMOST IMPOSSIBLE FOR THE TRI BUNAL TO SAY WHETHER SUCH DOCUMENTS ARE AUTHENTICATED OR NOT? THAT IS W HY GENERALLY THE EVIDENCES ALWAYS ARE REFERRED BACK TO THE ASSESSING AUTHORITY FOR VERIFICATION BUT SUCH EVIDENCES CANNOT BE SIMPLY BR USHED ASIDE. 30 AS OBSERVED EARLIER AND IN THE INTEREST OF JUSTI CE THERE HAS TO BE SOME FULL STOP ON ADMISSION OF THE ADDITIONAL EVIDE NCE AND THAT IS WHY WE HAVE SUGGESTED TO THE LD. COUNSEL FOR THE ASSESSEE TO FILE WHATEVER ADDITIONAL EVIDENCE IS AVAILABLE WHICH HAS BEEN FIL ED BEFORE US THROUGH FOLLOWING PAPERS: ASSESSMENT YEAR PARTICULARS 2003-04 TWO PAPER BOOKS CONTAINING 454 PAGES 2004-05 THREE PAPER BOOKS CONTAINI9NG 800 PAGES 2005-06 THREE PAPER BOOKS CONTAINING 1115 PAGES 2006-07 TWO PAPER BOOKS CONTAINING 609 PAGES 2007-08 ONE PAPER BOOK CONTAINING 383 PAGES 2008-09 THREE PAPER BOOKS CONTAINING 1268 PAGES 2009-10 THREE PAPER BOOKS CONTAINING 1174 PAGES THIS WOULD SERVE SOME PURPOSE. FOR EXAMPLE IN CAS E OF ADDITION ON ACCOUNT OF DONATION TOWARDS CORPS FUND WAS MADE FOR RS. 83 18 819/- FOR ASSESSMENT YEAR 2003-04 BUT THE ADDITIONAL EVIDENCE HAS BEEN FILED EVEN BEFORE US ONLY FOR RS. 28 25 402/-. THEREFORE IN OUR OPINION THE ASSESSE E CANNOT BE ALLOWED TO FILE MORE 26 EVIDENCES BEFORE THE ASSESSING OFFICER AND AT THE S AME TIME THE EVIDENCE WHICH HAS BEEN FILED BEFORE US NEEDS TO BE EXAMINED. 31 IN THE ABOVE BACKGROUND IN OUR OPINION THE ADD ITIONAL EVIDENCE FILED BEFORE US NEEDS TO BE ADMITTED AND THEREFORE WE ADMIT THE SAME. WE ALSO ADMIT ALL THE ADDITIONAL EVIDENCES FILED BE FORE LD. CIT(A) WHICH WAS ONLY PARTIALLY ADMITTED BY HER. SINCE THIS ADD ITIONAL EVIDENCE NEEDS VERIFICATION THEREFORE WE SET ASIDE THE ORDER OF T HE CIT(A) AND REMIT ALL THE APPEALS TO THE FILE OF ASSESSING OFFICER FOR RE EXAMINATION OF THE ISSUES AFTER PURSUING THE SAME IN THE LIGHT OF ADDITIONAL EVIDENCE WHICH HAS BEEN ADMITTED BY US. THE ASSESSING OFFICER SHOULD ALSO GIVE SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO EXPLAIN VARIOUS ISSU ES. FOR EXAMPLE REGARDING ADDITION ON ACCOUNT OF SECTION 40(A)(IA) FOR NON DEDUCTION OF TAX IT WAS SUBMITTED THAT MUMBAI BENCH OF THE TRIB UNAL HAS TAKEN A VIEW IN CASE OF MAHATAMA GANDHI SEWA V. DCIT(SUPRA) THAT NO ADDITION CANNOT BE MADE U/S 40(A)(IA) IN CASE OF A TRUST IS EXEMPT U/S 11. THE ASSESSING OFFICER SHOULD NOT ALLOW ASSESSEE TO FILE ANY OTHER EVIDENCE EXCEPT FILED BEFORE US OR THE LD. CIT(A). HOWEVER THE ASSESSEE SHOULD BE ALLOWED TO FILE DOCUMENTS EXPLAING THE EVIDENCE ALREADY FILED BEFORE US. LOOKING AT THE EARLIER APPROACH OF THE REVENUE WE SPECIFICALLY DIRECT THE ASSESSING OFFICER TO CONDUCT THE PROCEEDINGS IN TIME BOUND FA SHION AND RECORD ALL THE PROCEEDINGS PROPERLY AFTER PROVIDING ADEQUATE O PPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERA TE IN THE SET ASIDE PROCEEDINGS. 32 IN THE RESULT ALL THE APPEALS OF THE REVENUE AN D THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07.11.2 014 SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07.11.2014 RKK COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE CIT(A)/THE DR