ACIT, Cochin V. M/s.Institute of Radiology & Imaging Science P. Ltd, Cochin

CO 7/COCH/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8911 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2013
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE VARGHESE
• Assessee Lawyers: T M SREEDHARAN
• Keywords: Additional evidence; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NO. 25/COCH/2013 ASSESSMENT YEAR : 2008-09 M/S. INSTITUTE OF RADIOLOGY & IMAGING SCIENCE PVT. LTD., INDIRA GANDHI CO-OPERATIVE HOSPITAL, KADVANTHARA, KOCHI-20. [PAN: AABCI 2704H] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1(2), KOCHI. (ASSESSEE -APPELLANT) (REVENUE-RESPON DENT) C.O. NO. 07/COCH/2013 (ARSG. OUT OF I.T.A. NO. 25/COCH/2013) ASSESSMENT YEAR : 2008-09 THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1(2), KOCHI. VS. M/S. INSTITUTE OF RADIOLOGY & IMAGING SCIENCE PVT. LTD., INDIRA GANDHI CO-OPERATIVE HOSPITAL, KADVANTHARA, KOCHI-20. [PAN: AABCI 2704H] (REVENUE-APPELLANT) (ASSESSEE- RESPONDENT) ASSESSEE BY SHRI T.M. SREEDHARAN, SR. ADV. REVENUE BY SMT. SUSAN GEORGE VARGHESE, SR. DR DATE OF HEARING 10/06/2013 DATE OF PRONOUNCEMENT 30/08/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE AND THE CROSS OB JECTION FILED BY THE REVENUE ARE DIRECTED AGAINST THE ORDER DATED 06-12-2012 PAS SED BY LD. CIT(A)-II, KOCHI AND THEY RELATE TO THE ASSESSMENT YEAR 2008-09. I.T.A. NO. 25/COCH/2013 & C.O. NO. 07/COCH/2013 2 2. THE CROSS OBJECTION FILED BY THE REVENUE IS BARR ED BY LIMITATION BY 93 DAYS. HOWEVER, THE REVENUE DID NOT FILE ANY PETITION SEEK ING CONDONTION OF THE DELAY. IN THE ABSENCE OF PETITION EXPLAINING PROPER REASONS FOR T HE DELAY IN FILING THE CROSS OBJECTION, WE ARE UNABLE TO CONDONE THE DELAY OCCURRED IN FILI NG THE CROSS OBJECTION. ACCORDINGLY, WE DISMISS THE CROSS OBJECTION FILED BY THE REVENUE IN LIMINE AS UN-ADMITTED. 3. THOUGH THE ASSESSEE HAS TAKEN ABOUT 8 GROUNDS IN THE GROUNDS OF APPEAL, YET ALL OF THEM ARE DIRECTED AGAINST THE ADDITION RELAT ING TO THE SUPPRESSION OF INCOME, WHICH WAS PARTIALLY SUSTAINED BY THE LD. CIT(A). 4. THE FACTS RELATING TO THE SAID ISSUE ARE STATED IN BRIEF. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RUNNING A MEDICAL IMAGING AND DI AGNOSTIC CENTRE IN THE PREMISES OF M/S. INDIRA GANDHI CO-OPERATIVE HOSPITAL. IT CARRIE S OUT CT SCAN AND MRI SCAN OPERATIONS. IT FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 06-09- 2008 DECLARING A TOTAL INCOME OF RS.82.33 LAKHS. TH E DEPARTMENT CONDUCTED A SURVEY OPERATION IN THE PREMISES OF THE ASSESSEE ON 26-08- 2009 AND THE BOOKS AND RECORDS MAINTAINED BY THE ASSESSEE WERE IMPOUNDED. SUBSEQUE NTLY, THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 29-09-2009 DECLARING A TOTAL INCOME OF RS.110.81 LAKHS, I.E., THE INCOME DECLARE IN THE ORIGINAL RETURN OF INCOME WAS INCREASED BY RS.28.48 LAKHS. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE ASSESSING OFFICER EXAMINED THE IMPOUNDED DOCUMENTS AND NOTICED THAT THE ASSESS EE WAS SUPPRESSING THE COLLECTIONS IN A SYSTEMATIC MANNER, I.E., IT WAS NO TICED THAT THE ASSESSEE WAS FOUND RECORDING CORRECT AMOUNT IN THE RECEIPTS AND SCAN R EGISTERS. HOWEVER, WHILE TRANSFERRING THE COLLECTIONS TO THE BOOKS OF ACCOUN T, THE SAME WAS SHOWN AT A LESSER FIGURE. HENCE THE ASSESSING OFFICER COMPARED THE SCAN REGISTERS WITH THE BOOKS OF ACCOUNT AND COMPUTED THE SUPPRESSION OF COLLECTIONS IN CT SCAN AT RS.42,50,055/- AND IN MRI SCAN AT RS.48,47,182/-. THUS THE AGGREGATE AMOUNT OF SUPPRESSION WAS COMPUTED AT RS.90,97,237/- BY THE ASSESSING OFFICER . SINCE THE ASSESSEE HAD DECLARED I.T.A. NO. 25/COCH/2013 & C.O. NO. 07/COCH/2013 3 ADDITIONAL INCOME OF RS.28,47,983/- IN THE REVISED RETURN, THE ASSESSING OFFICER DEDUCTED THE SAME FROM THE SUPPRESSED AMOUNT OF RS. 90,97,237/- AND ADDED THE BALANCE AMOUNT OF RS. 62,49,254/- TO THE TOTAL INCO ME OF THE ASSESSEE. 6. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER I N APPEAL BEFORE THE LD. CIT(A). BEFORE THE FIRST APPELLATE AUTHORITY, IT WAS SUBMIT TED THAT THE PATIENTS ARE REFERRED TO THE ASSESSEE BY MANY PERSONS INCLUDING DOCTORS AND THE ASSESSEE IS REQUIRED TO GIVE REFERRAL FEE TO SUCH PERSONS. IN THE CASE OF DOCTO RS, HIS INTELLECT AND PROFESSIONAL EXPERTISE IS TAKEN WHILE GIVING THE OPINION. IN MA NY CASES, THE ASSESSEE IS NOT COLLECTING FEES AT ALL FROM PATIENTS, IF HE IS REFE RRED BY A SENIOR DOCTOR OR KNOWN PERSONS OR RELATED PERSONS OR GOVERNMENT OFFICIAL OR POLICE OFFICIAL OR SENIOR POLITICIAN ETC. SOME TIME, THE ASSESSEE WOULD BE REQUIRED TO GIVE CONCES SIONS. IT WAS FURTHER SUBMITTED THAT IN ALL THE ABOVE CITED TYPES OF INSTANCES, THE AMOUNT SHOWN IN THE REGISTER WOULD BE DIFFERENT FROM THE AMOUNT RECORDED IN THE BOOKS OF ACCOUNTS. CONSIDERING THE EXPLANATIONS GIVEN BY THE ASSESSEE, THE LD CIT(A) G AVE A RELIEF OF 10% OF RS.6,24,9254/-, I.E., RS.6,24,925/- AND SUSTAINED T HE BALANCE AMOUNT OF ADDITION. STILL AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL BEFOR E US. 7. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE FILED A PAPER BOOK CONTAINING WORKINGS OF SUPPRESSED INCOME AS COMPILE D FROM THE IMPOUNDED DOCUMENTS. THEY WERE FILED AS ADDITIONAL EVIDENCE ALONG WITH AN AFFIDAVIT. IN THE SAID AFFIDAVIT, IT IS STATED THAT THE DIFFERENCE IN THE GROSS RECEIPTS FOUND IN THE IMPOUNDED DOCUMENTS WORKED OUT TO RS.37,97,831/- ONLY AS AGAI NST RS.90,97,237/- COMPUTED BY THE ASSESSING OFFICER. ACCORDINGLY, IT WAS SUBMITT ED THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS HIGHLY EXCESSIVE AND IT DOES N OT EMANATE FROM THE IMPOUNDED DOCUMENTS. THE LD. COUNSEL FOR THE ASSESSEE PRAYED FOR THE ADMISSION OF ADDITIONAL DOCUMENTS AND REQUESTED THE BENCH TO CONSIDER THE S AME. 8. THE LD COUNSEL FURTHER SUBMITTED THAT THE DI FFERENCE OF RS.37,97,831/- DOES NOT REPRESENT ACTUAL SUPPRESSION OF INCOME. HE SUBMITT ED THAT THE ASSESSEE IS NOT COLLECTING FEES IN MANY CASES, IF THE PATIENT IS RE FERRED BY A SENIOR DOCTOR OR KNOWN I.T.A. NO. 25/COCH/2013 & C.O. NO. 07/COCH/2013 4 PERSONS OR RELATED PERSONS OR GOVERNMENT OFFICIAL O R POLICE OFFICIAL OR SENIOR POLITICIAN ETC. SOME TIME, THE ASSESSEE WOULD BE REQUIRED TO GIVE CONCESSIONS. THE ASSESSEE IS ALSO GIVING REFERRAL FEE TO SOME OF THE DOCTORS, BU T HIS INTELLECT AND PROFESSIONAL EXPERTISE IS USED IN THOSE CASES AND HENCE IT IS IN THE NATURE OF SHARING OF FEE BETWEEN THE ASSESSEE AND THE DOCTOR. THE LD COUNSEL SUBMITT ED THAT ASSESSEE ITSELF HAS DECLARED ADDITIONAL INCOME OF RS.28,54,998/- IN THE REVISED RETURN AND ACCORDINGLY PLEADED FOR DELETION OF THE BALANCE AMOUNT. 9. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE WORKINGS IN THE FORM OF ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE REQUI RE EXAMINATION AT THE END OF THE ASSESSING OFFICER. THE LD D.R FURTHER SUBMITTED TH AT THE ASSESSEE IS PROHIBITED FROM GIVING REFERRAL FEE AND HENCE THE SAME IS NOT ALLOW ABLE AS DEDUCTION. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFUL LY PERUSED THE RECORD. AS STATED EARLIER, THE ASSESSING OFFICER DETERMINED THE QUANT UM OF DIFFERENCE IN THE RECEIPTS AT RS.90,97,237/-. NOW THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING COMPILATION OF IMPOUNDED DOCUMENTS AND ACCORDING TO THE ASSESSEE, THE ACTUAL DIFFERENCE WORKS OUT ONLY TO RS.37,97,831/-. ACCORDING TO THE ASSESSEE, IT HAS ALREADY DECLARED RS.28,54,998/- AS ADDITIONAL INCOME. THE ASSESSEE HAS SUBMITTED BEFORE US THAT SCANNING FOR CERTAIN PATIENTS ARE DONE AT FREE OF C OST, CONCESSIONS ARE GIVEN TO SOME PATIENTS. IT IS ALSO SUBMITTED THAT THE REFERRAL C HARGES GIVEN TO THE DOCTORS ARE IN THE NATURE OF SHARING OF FEE COLLECTED FROM THE PATIENT S. ADMITTEDLY, THESE MATTERS HAVE NOT BEEN EXAMINED BY THE ASSESSING OFFICER IN THE ORIGI NAL ASSESSMENT PROCEEDINGS. WE ALSO NOTICE THAT THE DIFFERENCE WORKED OUT BY THE A SSESSEE IS FAR LESS THAN THE DIFFERENCE COMPUTED BY THE ASSESSING OFFICER. HENCE, THE WORK ING AS GIVEN BY THE ASSESSEE REQUIRES FRESH EXAMINATION AT THE END OF THE ASSESS ING OFFICER. ACCORDINGLY, IN OUR VIEW, THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT( A) ON THIS ISSUE AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE ISSUE AFRESH BY TAKING INTO CONSIDERATION THE ADDITIONAL EVIDENC E FILED BEFORE US, EXPLANATION GIVEN BY THE ASSESSEE AND ALSO ANY OTHER INFORMATION AND EXPLANATION THAT MAY BE FILED I.T.A. NO. 25/COCH/2013 & C.O. NO. 07/COCH/2013 5 BEFORE HIM BY THE ASSESSEE AND TAKE APPROPRIATE DEC ISION IN ACCORDANCE WITH LAW, AFTER AFFORDING NECESSARY OPPORTUNITY OF HEARING TO THE A SSESSEE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION FILED BY THE REVEN UE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 30-08-20 13. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 30TH AUGUST, 2013 GJ COPY TO: 1. M/S. INSTITUTE OF RADIOLOGY & IMAGING SCIENCE PV T. LTD., INDIRA GANDHI CO-OPERATIVE HOSPITAL, KADVANTHARA, KOCHI-20. 2.THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE- 1(2),KOCHI.. 3 THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, KOCHI . 4.THE COMMISSIONER OF INCOME-TAX, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN