DR. HITESHBHAI AMICHANDBHAI PATEL,HIMATNAGAR V. THE INCOME TAX OFFICER, S.K. WARD-3, HIMATNAGAR

ITA 1744/AHD/2024

AI Insights

This case involves an appeal by Dr. Hiteshbhai Amichandbhai Patel against the order of the Commissioner of Income Tax (Appeals) which confirmed the addition of Rs. 8,15,130 to his income for the Assessment Year 2010-11, identified as unaccounted hospital receipts during a survey under section 133A of the Income Tax Act, 1961. The Tribunal noted a significant delay in filing the appeal and found the explanations provided by the assessee insufficient. The Tribunal also referenced similar cases to support the decision that the addition was justified based on the incriminating documents found during the survey.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 314394 (ITAT-AHMEDABAD)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Other Referred Cases: C.K. Abdul Azeez vs. Commissioner of Income Tax, Central Circle, Calicut, Dr. Dinesh Jain vs. Income Tax Officer-11(2)-2, Mumbai
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Retraction; Loose papers
• Section: 143(3); 133A

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “C” BENCH Before: Smt. Annapurna Gupta, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member Dr. Hiteshbhai Amichandbhai Patel Harsh Hospital, Near Hanumanji Temple, Ghirdharnagar Near Overbridge, Himmatnagar-383001 Gujarat PAN: ABEPP1040J (Appellant) Vs Income Tax Officer S.K. Ward-3, Himmatnagar (Respondent) Assessee Represented: None Revenue Represented: Shri Yogesh Mishra, Sr. D.R. Date of hearing : 06-05-2025 Date of pronouncement : 08-05-2025 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- This appeal is filed by the Assessee as against the appellate order dated 19.09.2023 passed by the Commissioner of Income Tax (Appeals)11, Ahmedabad arising out of the assessment order passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Year 2010-11. ITA No. 1744/Ahd/2024 Assessment Year. 2010-11 I.T.A No. 1744/Ahd/2024 A.Y. 2010-11 Page No Dr. Hiteshbhai Amichandbhai Patel vs. ITO 2 2. The registry has noted that there is a delay of 318 days in filing the above appeal. The assessee filed a Notarized Affidavit that he has not received, the appellate order dated 19-09-2023 either email or by post. On checking the Income Tax Department portal in the month of April 2024, about the order dismissing the appeal was found by the Consultant, immediately advised the assessee to file an appeal before ITAT. However appeal was filed on 01-10-2024 with a delay of 318 days and requested to condone the delay. 2.1. It is not clear from the Affidavit, when the Consultant informed the assessee in the month of April 2024 the dismissal order by Ld. CIT(A), why the assessee filed the appeal in October 2024 with substantial delay and no explanation is offered for intervening period. Further the Affidavit is silent about the so called Consultant and any supporting Affidavit. Thus we are not convinced with the explanation offered by the assessee. Therefore the delay of 318 days in filing the appeal is not condoned. 3. However on merits of the case, this is the second round of appeal before this Tribunal. In the first round, Co-ordinate Bench of this Tribunal vide order dated 04-04-2029 setaside the issue to the file of Ld. CIT(A) namely addition on hospital receipts of Rs.8,50,130/- to be adjudicated afresh, thereby Ld. CIT(A) adjudicated the above issue by observing as follows: “7.6 In this regard, it is stated that on perusal of the records available with this office, it is seen that during the course of survey u/s.133A of the Act, incriminating documents as Annexure A-1 (page no. 1 to 45) were found and after perusal, the appellant had made dated signature on these incriminating documents. Thereafter, on perusal of page no. 43 of Annexure A-1, it was found that total receipt amounting to Rs.22,75,090/- was shown as on date of survey but the appellant had not shown the total receipt in the books of I.T.A No. 1744/Ahd/2024 A.Y. 2010-11 Page No Dr. Hiteshbhai Amichandbhai Patel vs. ITO 3 account. Accordingly, on confrontation these pages, the appellant in his statement recorded on oath, had admitted that he will pay the tax on the undisclosed/unaccounted receipt as per the impounded papers for A.Y.2010- 11. Further, on perusal of the return of income/books of account filed for A.Y.2010-11, it was noticed that the appellant had shown the receipt of Rs.14,59,640/- only upto the date of survey. Therefore, it can be concluded that the appellant had not disclosed the total receipt of Rs.8.15.130/- (22,75,090 Rs.14,59,640) as shown in the impounded papers found during the survey. Further, the appellant has not filed any new evidence which suggests that the addition was made incorrectly. 7.7 It is also important to mention here that merely filing of an affidavit related to retraction of his earlier statement does not nullify the notings mentioned in the impounded papers found during the course of survey proceedings. It is also worthwhile note that the addition was not made merely on the basis of statement recorded during the survey but on the basis of details/notings of unaccounted receipt found in the incriminating impounded papers. 7.8 Reliance is placed on the decision of the Hon'ble High Court of Kerala in the case of C.K. Abdul Azeez vs. Commissioner of Income Tax, Central Circle, Calicut [2019] 111 taxman.com 74 (Kerala) dated 05.09.2018 wherein Hon'ble High Court has decided the appeal on the similar issues in favour of revenue. The head note of the said judgement is as under:- Section 133A of the Income-tax Act, 1961 Survey (General) Assessment year 2010-11 Whether section 133A(3)(iii) empowers income-tax authority to record statement of a person including an assessee section 133A, unlike section 132(4) does not specifically empower income-tax authority to examine a person on oath, however, Section 133A does not also prohibit income-tax authority to administer path to a person Held, yes Whether merely by reason of fact that income-tax authority has administered oath to an assessee and recorded his sworn statement during survey proceedings under section 133A, it cannot be held that such statement has no evidentiary value at all and that it cannot be used in any manner against assessee in any proceedings under Act - Held, yes - Whether statement on oath made by an assessee to income-tax authority during survey proceedings under section 133A is not conclusive and assessee con explain or withdraw admission, if any, made by him in such statement and assessment of tax cannot be made solely on basis of such statement made by assessee und section 1334(3)() and such statement can be used to corroborate other materials before assessing authority, including contents of any document - Held, yes [Paras 15 and 18] [in favour of revenue] I.T.A No. 1744/Ahd/2024 A.Y. 2010-11 Page No Dr. Hiteshbhai Amichandbhai Patel vs. ITO 4 8.1 Reliance is placed on the decision of the Hon'ble High Court of Bombay in the case of Dr. Dinesh Jain vs. Income Tax Officer-11(2)-2, Mumbai [2014] 45 taxmann.com 442 (Bombay) dated 24.03.2014, wherein Hon'ble High Court has decided the appeal on the similar issues in favour of revenue. The Head note of the said judgement is as under:- \"Section 69B, read with section 133A, of the Income-tax Act, 1961 Undisclosed investments (Loose papers) Assessment years 2004-05 to 2007-08- Assessee was a practicing Dentist During survey, a loose paper was found Assessee stated that said document contained estimated figure of receipts and of red said sum as his undisclosed income However, during assessment, assessee explained that said document was an estimated income prepared by his consultant for purpose of obtaining loan from bank for purchase of medical equipments -An alleged affidavit of said consultant was also filed However, no evidence was produced regarding appointment of said consultant or that fees being paid Moreover, no details were furnished by assessee of equipments which were to be purchased - Whether, in these circumstances, no credence could be given to affidavit filed by consultant and receipts recorded in said loose paper was undisclosed income of assessee Held, yes [Paras 4 and 6] [In favour of revenue) 7. In view of the above factual and legal matrix of the case, all the pleas taken by the appellant are rejected. However, it is a fact that the appellant has already shown the receipt of Rs.14,59,640/- upto to the date of survey in this books of account. Therefore, the AO is directed to consider the confirmed addition of Rs.8,15,130/- out of the total addition made of Rs 14,15,120/-. Thus, the ground of appeal is partly allowed. 8. In the result, the appeal is partly allowed.” 4. Aggrieved against the appellate order, the assessee is in appeal before us raising the following Grounds of Appeal: The main grounds of challenge to the said order passed by the learned Commissioner of Income Tax (Appeal) -11, Ahmedabad under Section 250 of the Act are as under: - 1. That the impugned order passed under Section 250 of the Act is erroneous as the same is dehorse the factual and legal position. I.T.A No. 1744/Ahd/2024 A.Y. 2010-11 Page No Dr. Hiteshbhai Amichandbhai Patel vs. ITO 5 2. That the Ld. CIT(A), Ahmedabad erred in law and on facts in confirming addition of Rs. 8,15,130/-being amount of unaccounted hospital receipt. 5. In support of the grounds of appeal, no material is placed on record to adjudicate the case on merits. Today is the Ninth time of haring of this appeal. Further, the assessee has not given any authorization in favour of any Representative. In the absence of any details and evidences, the delay in filing the appeal having not been properly explained, the appeal is not maintainable and thereby dismissed in limine. 6. In the result, the appeal filed by the Assessee is dismissed. Order pronounced in the open court on 08-05-2025 Sd/- Sd/- (ANNAPURNA GUPTA) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 08/05/2025 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपीलȣय अͬधकरण, अहमदाबाद "