Dr. Satish Chakravarty, Chandigarh V. Addl. CIT, Chandigarh

ITA 1076/CHANDI/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60824 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 23-04-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 16-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: ANIL KUMAR BATRA; ASHOK KUMAR JAIN
• Keywords: Unexplained investment; Reassessment proceedings
• Section: 133A; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R. SOOD, AM AND MS. SUSHMA CHOWLA, JM ITA NO. 1076 /CHD/2010 ASSESSMENT YEAR: 2006-07 DR. SATISH CHAKRAVARTY V. ADDL. CIT, RANGE 4 PROP. CHAKRAVARTY NURSING HOME CHANDIGARH H NO. 2521, SECTOR 37-C CHANDIGARH PAN: ACBPC 5441 L ITA NO. 1081 /CHD/2011 ASSESSMENT YEAR: 2007-08 DR. SATISH CHAKRAVARTY V. A.C.I.T PROP. CHAKRAVARTY NURSING HOME CIRCLE 4(1) H NO. 2521, SECTOR 37-C CHANDIGARH CHANDIGARH PAN: ACBPC 5441 L (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI ANIL KUMAR BATRA & ASHOK KUM AR JAIN RESPONDENT BY: SHRI N.K. SAINI DATE OF HEARING: 23.04.2012 DATE OF PRONOUNCEMENT: 09.05.2012 ORDER PER T.R. SOOD, A.M IN ITA NO. 1076/CHD/2010 , THE ASSESSEE HAS RAISED THE FOLLOWING GROUND: THE LD. CIT(A) HAS WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE AND BY IGNORING THE EVIDENCE AND SUBMISSIO NS OF THE APPELLANT GRAVELY ERRED IN SUSTAINING THE ENHANCEMENT OF INCO ME BY RS. 11,48,061/- OVER AND ABOVE THE AMOUNT OF SURRENDERE D INCOME OF RS. 30 LAKHS. THE ADDITION BE DELETED. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A DOCTOR AND PROPRIETOR OF CHAKRAVARTY NURSING HOME. A SURVEY U /S 133A WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 16.2.2006. DURING SURVEY THE ASSESSEE SURRENDERED A SUM OF RS. 30 LAKHS CONSISTI NG OF RS. 29 LAKHS ON ACCOUNT OF UNDISCLOSED CASH AND RS. 1 LAKH ON ACCO UNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION FOR ASSESSMENT YEAR 2006 -07. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICE D VARIOUS DISCREPANCIES IN 2 THE ACCOUNTS. FIRSTLY IT WAS NOTED THAT THE ASSESS EE HAS NOT MAINTAINED THE DETAILS OF INVENTORY AS PER RULE 6F AND IT WAS EXPL AINED THAT SINCE ENORMOUS NUMBER OF ARTICLES IS INVOLVED, IT WAS NOT POSSIBLE TO MAINTAIN THE STOCK REGISTER. SECONDLY, IT WAS NOTED THAT THE ASSESSEE HAD FILED FORM 3C SHOWING NUMBER OF BIRTH TAKING PLACE IN THE NURSING HOME AND ENTERED THE SAME IN BIRTH REGISTER WHICH WERE NOT TALLYING WITH FORM 3C. THE ASSESSIN G OFFICER HAS GIVEN EXAMPLE IN THIS REGARD. THIRDLY, IT WAS FOUND THAT THE BILLS WERE NOT BEING MAINTAINED IN CHRONOLOGICAL ORDER AND EARLIER BILLS WERE ISSUED IN LATER SERIAL NUMBERS OF BILLS. IN TABLE 2 SOME EXAMPLES HAVE BE EN GIVEN SHOWING BILL NO. 401 IN THE NAME OF MR. S.N. CHAKRABARTI WAS ISSUED ON 8.7.2005 WHEREAS BILL NO. 410 WAS ISSUED IN THE NAME OF MRS. SHACHI UPPAL ON 28.5.2005. AGAIN BILL NO. 416 WAS ISSUED IN THE NAME OF MRS. NIDHI KHANNA ON 29.4.2005. FOURTHLY, IT WAS FOUND THAT THERE WAS HUGE VARIATION IN THE B ILLING AMOUNT IN THE CASE OF NVD (NORMAL DELIVERIES) AND LSCS (CESAREAN PROCEDUR ES). A CONSOLIDATED LIST WAS DRAWN IN RESPECT OF ITS ANNEXURE B TO THE ASS ESSMENT ORDER. TABLE 3 AND 4 HAVE BEEN INCORPORATED IN THE ASSESSMENT ORDER WHIC H READS AS UNDER: TABLE III VARIATION IN FEE PERTAINING TO LSCS PROCEDURE S NO NAME OF PATIENT DATE OF PROCEDURE/BILL RAISED PROCEDURE AMOUNT CHARGED 1 RITU MOHINDRU 2.3.2006 CAESAREAN (LSCS) RS. 3,500/- 2 ALKA KALIA 16.3.2006 CAESAREAN (LSCS) RS. 23,180/- 3 RITU BANSAL 14.11.2005 CAESAREAN (LSCS) RS. 3,500/- 4 NALINI SHARMA 28.11.2005 CAESAREAN (LSCS) RS. 16,000/- TABLE IV VARIATION IN FEE PERTAINING TO NVD (NORMAL DELIVERY ) PROCEDURE S NO NAME OF PATIENT DATE OF PROCEDURE/BILL RAISED PROCEDURE AMOUNT CHARGED 1 ANITA GOYAL 7.3.2006 NVD RS. 3,500/- 2 MEENAKSHI 15.3.2006 NVD RS. 12,000/- 3 3 RASHIM SHARMA 19.2.2006 NVD RS. 4,000/- 4 MEENA KUMARI 20.2.2005 NVD RS. 10,000/- 3. IN RESPONSE TO THE QUERY IT WAS EXPLAINED THAT FEE CHARGED BY THE DOCTOR WAS DEPENDENT ON TIME SPENT ON A PATIENT FOR THE PA RTICULAR PROCEDURE I.E. ONE CAESAREAN DELIVERY MAY TAKE 1-2 HOURS AND ANOTHER M AY TAKEN 24 TO 48 HOURS OF LABOR PAINS. SIMILARLY IN THE CASE OF NORMAL DE LIVERY THE TIME TAKEN CAN VARY FROM 1 TO 2 HOURS TO 24 TO 48 HOURS OF LABOR PAINS. THESE SUBMISSIONS WERE NOT ACCEPTED AND THE ASSESSING OFFICER GATHERED INFORMA TION FROM OUTSIDE SOURCES. NAMES OF THE PATIENTS WERE COLLECTED FROM FORM 3C R EGISTER WHICH WERE REGISTERED AND SOME PATIENTS WERE IDENTIFIED AND IT WAS FOUND THAT FEE ENTERED IN THE REGISTER WAS MUCH LESS THAN THE FEE REPORTED TO HAVE BEEN PAID BY SUCH PATIENTS WHICH BECOMES CLEAR FROM THE ENQUIRIES WIT H SUCH PATIENTS. FEW EXAMPLES HAVE BEEN GIVEN IN TABLE 5 AS UNDER: NAME DELIVERY/SURGERY FEES CHARGED AS PER BOOKS OF THE ASSESSEE FEE CHARGED AS ASCERTAINED AFTER VERIFICATION FROM THE PATIENT SMT. ARCHANA KAMBOJ NORMAL DELIVERY (NVD) RS. 2900/- RS. 8,200/- (INCLUDING ALL CHARGES) SMT. DOLLY CAESARIAN (LSCS) RS. 4,000/- RS. 18,000/ - (INCLUDING ALL CHARGES) SMT. GURLEEN KAUR NORMAL DELIVERY (NVD) RS. 3,900/- RS. 9,000/- (INCLUDING ALL CHARGES) SMT. ANITA GOYAL NORMAL DELIVERY (NVD) RS. 3,500/- RS. 10,000/- (INCLUDING ALL CHARGES) THE ABOVE INFORMATION WAS CALLED FOR U/S 133(6) OF THE ACT AND HAS BEEN APPENDED IN ANNEXURE C-1, C-2 AND C-3 TO THE ASSESS MENT ORDER. IN VIEW OF THE UNDER STATEMENT OF THE FEE AND OTHER DISCREPANC Y AS MENTIONED ABOVE THE BOOKS OF ACCOUNT WERE REJECTED BECAUSE THE ASSESSEE WAS REFLECTING LOWER FIGURES OF PROFESSIONAL FEE THAN THE ACTUAL FEE. T HEREAFTER THE ASSESSING OFFICER WENT ON TO ESTIMATE THE AMOUNT OF SUPPRESSED RECEIP TS AND IN THIS REGARD RELIED ON THE DECISIONS OF HON'BLE MADRAS HIGH COURT IN TH E CASE OF CIT V. 4 KRISHNAVENI AMMAL, 158 ITR 826 (MAD) AND HON'BLE SU PREME COURT IN THE CASE OF CIT V. BEST AND CO. (PRIVATE) LTD. 60 ITR 11 (S. C). THE FEE WAS CALCULATED FOR LSCS PROCEDURE AT RS. 18,700/- BY TAKING THE EX AMPLE GIVEN IN TABLE IX WHICH IS AS UNDER: SR NO NAME OF PATIENT FEE AS PER FIELD ENQUIRY/AS P ER BOOKS (REFERENCE ANNEXURE B & ANNEXURE D TO THE ASSESSMENT ORDER) 1 SMT. DOLLY RS. 18,000/- 2 SMT. PARUL AHUJA RS. 17,000 TO RS. 18,000/- 3 SMT. VANITA DHALL RS. 18,700/- 4 SMT. PRERNA JAIN RS. 19,750/- 5 SMT. POONAM RS. 20,200/- 6 SMT. SHUCHI DUA RS. 20,000/- 7 SMT. MONIKA SHARMA RS. 20,900/- 8 SMT. ANJANA RS. 21,130/- 9 SMT. SHIKHA SINGLA RS. 26,000/- 10 SMT. BINDU JETLI RS. 23,000/- 11 SMT. ALKA KALIA RS. 23,180/- 12 SMT. VANITA DHALL RS. 18,700/- AND RS. 10,000/- IN THE CASE OF NVD PROCEDURE ON TH E BASIS OF FOLLOWING TABLE X IN ASSESSMENT ORDER. S NO NAME OF PATIENT FEE CHARGED AS PER FIELD ENQUIRY/AS PER BOOKS (REFERENCE ANNEXURE B AND ANNEXURE D TO THE ASSESSMENT ORDER) 1 SMT. ANITA GOYAL RS. 10,000/- 2 SMT. GURLEEN KAUR RS. 9000/- 3 SMT. VANDANA VERMA RS. 9000/- 4 SMT. ARCHANA SHARMA RS. 11,300/- 5 SMT. NIDHI SHARMA RS. 13.230/- 6 SMT. NEETU VERMA RS. 10,100/- 7 SMT. ANURADHA SAINI RS. 10,000/- 8 SMT. SURBHI CHAGE RS. 10,000/- 9 SMT. ANSHU AGGARWAL RS. 11,300/- 10 SMT. MADHU SHARMA RS. 11,000/- 11 SMT. SHELLY CHAUHAN RS. 10,000/- 12 SMT. SUMAN BURA RS. 10,130/- 5 THEREAFTER ON THE BASIS OF THESE RATES THE EXERCISE WAS CARRIED TO FIND OUT SUPPRESSED RECEIPTS WHICH WAS WORKED OUT AS PER ANN EXURE TO THE ASSESSMENT ORDER AND SUMMARIZED AS UNDER: 1. CAESAREAN (LSCS) RS. 11,09,861/- 2. NORMAL DELIVERY (NVD) RS. 16,33,180/- TOTAL RS. 27,43,041/- 4. THE ASSESSEE VIDE ORDER SHEET ENTRY DATED 3.12.2 008 WAS REQUIRED TO SHOW CAUSE WHY THE ADDITION ON ACCOUNT OF ABOVE SUP PRESSION SHOULD NOT BE MADE. IT WAS MAINLY STATED THAT IN THE SURVEY ITSE LF THE ASSESSEE HAS DECLARED A SUM OF RS. 30.00 LAKHS OUT OF WHICH RS. 29.00 LAK HS WAS ON ACCOUNT OF UNEXPLAINED CASH AND RS. 1.00 LAKH ON ACCOUNT OF U NEXPLAINED INVESTMENT IN CONSTRUCTION. IT WAS POINTED OUT THAT THIS MONEY H AS COME OUT OF MEDICAL PROFESSION ONLY AND THEREFORE, AFTER SURRENDER NO F URTHER ADDITION WAS REQUIRED. HOWEVER, THE ASSESSING OFFICER ACCEPTED THIS CONTEN TION PARTIALLY AND ACCEPTED THAT UPTO THE DATE OF SURVEY NO FURTHER ADDITION IS REQUIRED BUT SHE CALCULATED THE ADDITION FOR THE POST-SURVEY PERIOD WHICH WAS W ORKED OUT AS UNDER: PERIOD 16.2.2006 TO 31.3.2006 SUPPRESSION ON ACCOUNT OF LSCS PROCEDURE RS. 1,7 9,971/- SUPPRESSION ON ACCOUNT OF NVD PROCEDURE RS. 1,77 ,500/- TOTAL SUPPRESSION RS. 3,57,471/- {THE CASE WISE DETAILS OF SUPPRESSION OF PROFESSION RECEIPTS FOR POST-SURVEY PERIOD IS APPENDED AS PER ANNEXURE E TO THE ASSESSMENT ORDER}. 5. THE ASSESSING OFFICER DID NOT STOP AT THIS AND O BSERVED THAT THE ABOVE SUPPRESSION RELATES TO NVD AND LSCS PROCEDURE AND T HERE MUST BE SIMILAR SUPPRESSION IN OTHER SURGERIES AND OPD PATIENTS AND LAB TESTS, ON THE BASIS OF AVAILABLE RECORD, IT WAS ASCERTAINED THAT FOLLOWING RATIOS ARE APPLICABLE IN VARIOUS HEADS: NATURE OF FEE AMOUNT RATIO OF RECEIPT TO TOTAL RECEIPT 6 FEE RELATED TO BIRTHS RS. 55,77,100/- 55-56% FEE RELATED TO OTHER SURGERIES RS. 14,74,450/- 14-1 5% FEE RELATED TO OPD PATIENTS/LAB TESTS/LAB TESTS RS. 28,63,750/- 29-30% ON THE BASIS OF THIS THE PRE-SURVEY SUPPRESSION OF FEES WAS WORKED OUT IN PARA 4.5 WHICH IS AS UNDER: 4.5 AS THE FEE RELATED TO MEDICAL PROCEDURE SUCH A S NVD AND LSCS IS 55-56% OF THE TOTAL RECEIPTS OF THE ASSESSEE, IT WO ULD BE CORRECT TO ATTRIBUTE 55-56% OF THE UNDISCLOSED INCOME SURRENDE RED DURING SURVEY TO UNRECORDED INCOME OF THE ASSESSEE ON ACCOUNT OF SU PPRESSION OF RECEIPTS FOR THE AFOREMENTIONED PROCEDURES. SO A S UM OF RS. 15,95,000/- (THE AMOUNT BEING 55% OF RS. 29,00,000/ - SURRENDERED AS UNDISCLOSED CASH DURING SURVEY) CAN BE ATTRIBUTED T O SUPPRESSION OF INCOME ON ACCOUNT OF LSCS AND NVD PROCEDURES. THE TOTAL SUPPRESSION FOR THE PRE-SURVEY PERIOD I.E. 01.04.20 05 TO 15.02.2006 AS PER ANNEXURE D APPENDED WITH ASSESSMENT ORDER IS AS PER FOLLOWING DETAIL: SUPPRESSION ON ACCOUNT OF LSCS PROCEDURE RS. 9,2 9,890/- SUPPRESSION ON ACCOUNT OF NVD PROCEDURE RS. 14,5 5,680/- TOTAL SUPPRESSION RS. 23,85,570/- AGAINST, THE AFOREMENTIONED SUPPRESSION OF RS. 23,8 5,570/- ONLY RS. 15,95,000/- CAN BE SAID TO BE SOURCED FROM UNDISCLO SED CASH DISCLOSED DURING THE SURVEY. THUS, A SUM OF RS. 7,90,590/- I S STILL IN THE NATURE OF SUPPRESSED INCOME EVEN AFTER TAKING COGNIZANCE OF T HE DISCLOSED SUM. ACCORDINGLY, AN ADDITION OF RS. 7,90,590/- IS MADE ON ACCOUNT OF SUCH SUPPRESSION F OR THE PERIOD 01.04.2005 TO 15.02.200 6. ACCORDINGLY THIS AMOUNT IS ADDED TO ASSESSEES INCOME. IN VIEW OF THE ABOVE, FOLLOWING TWO ADDITIONS WERE MADE TO THE INCOME OF THE ASSESSEE: SUPPRESSION OF PRE-SURVEY PERIOD RS. 7,90,590/- (AS PER PARA 4..5 OF ASSESSMENT ORDER) SUPPRESSION OF POST-SURVEY PERIOD RS. 3,57,471/- (AS PER PARA 4.2 OF ASSESSMENT ORDER) TOTAL SUPPRESSION RS. 11,48,061/- THE ABOVE AMOUNT WAS ADDED TO THE RETURNED INCOME O F THE ASSESSE 6. ON APPEAL, THE ACTION OF THE ASSESSING OFFICER H AS BEEN CONFIRMED BY THE LD. CIT(A). 7 7. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT BECAUSE OF LARGE VOLUME OF MEDICINE INVOLVED, IT IS NOT POSSIB LE TO MAINTAIN STOCK REGISTER. THE VARIATIONS IN THE NUMBER OF BIRTHS SHOWN IN FOR M NO. 3C AND ENTERED IN THE BIRTH REGISTER HAS ALREADY BEEN RECONCILED BEFORE T HE ASSESSING OFFICER. IN THIS REGARD HE REFERRED TO PAGE 13 TO 22 WHICH IS A COPY OF THE REPLY GIVEN TO THE ASSESSING OFFICER. AS FAR AS THE ISSUE REGARDING S ERIAL NUMBERS OF THE BILLS MERELY BECAUSE EARLIER SERIAL NUMBER WAS ISSUED IN THE LATER PERIOD WILL NOT MAKE A DIFFERENCE AND NO ADVERSE INFERENCE CAN BE T AKEN FROM THIS FACT. THE ASSESSING OFFICER IS NOT CORRECT IN NOTING THE VARI ATION IN THE FEE CHARGED FOR NVD AND LSCS PROCEDURE WITHOUT APPRECIATING THE REA SONS FOR SUCH VARIATION. HE EMPHASIZED THAT IT WAS SPECIFICALLY ARGUED BEFOR E THE ASSESSING OFFICER THAT SUCH VARIATION CAN BE DUE TO VARIOUS FACTORS SUCH A S COMPLICATION IN THE CASE, AMOUNT SPENT IN A PARTICULAR DELIVERY IN BOTH THE P ROCEDURES WHICH VARIES FROM CASE TO CASE. SOMETIMES CONCESSIONAL RATES ARE CHA RGED FROM LOWER INCOME PATIENTS. THEREFORE, THESE FACTS CANNOT LEAD TO T HE CONCLUSION THAT BOOK RESULTS WERE NOT CORRECT AND HENCE THE BOOKS HAVE BEEN WRON GLY REJECTED. 8. COMING TO THE MERITS OF THE CASE, HE SUBMITTED T HAT THE ASSESSING OFFICER HAS ESTIMATED THE RATES IN TABLE IX AND X AT HIGHER RATES. FOR EXAMPLE IN THE CASE OF LSCS THE RATE OF RS. 18,000/- HAS BEEN ADOP TED WHEREAS RATE AS LOW AS RS. 3500/- AND RS. 9000/- HAVE ALSO BEEN CHARGED AS ADMITTED BY THE ASSESSING OFFICER IN TABLE VI. SIMILARLY IN THE CA SE OF NVD DELIVERIES RATE OF RS. 10,000/- HAS BEEN ADOPTED WHEREAS RATES AS LOW AS RS. 2900, RS. 3500/- AND RS. 4000/- HAVE BEEN CHARGED AS LISTED BY THE A SSESSING OFFICER IN TABLE V. IN ANY CASE SUM OF VARIATION CAN BE BECAUSE OF THE REASONS WHICH HAS BEEN ARGUED BY HIM WHILE ARGUING THE ISSUE REGARDING REJ ECTION OF BOOKS OF ACCOUNT. FURTHER WHATEVER CONCEALED RECEIPTS WERE THERE STAN DS COVERED BY THE DISCLOSURE DURING SURVEY AMOUNTING TO RS. 30.00 LAK HS AND NO FURTHER ADDITION WAS CALLED FOR. HE ALSO RELIED ON THE DECISIONS OF HON'BLE RAJATHAN HIGH COURT IN THE CASE OF CIT V. R.Y. DURLABHJI, 211 ITR 178 ( RAJ) AND HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT V. MAHESH CHAND, 199 ITR 247 (ALL). 8 9. ON THE OTHER HAND, LD. DR FOR THE REVENUE SUBMIT TED THAT THE ASSESSEE HAS NOT RAISED ANY SPECIFIC GROUND IN RESPECT OF TH E ISSUE REGARDING REJECTION OF BOOKS OF ACCOUNT AND THEREFORE, IT ACCEPTS THE ACTI ON OF THE ASSESSING OFFICER. IN ANY CASE, THE VERY FACT THAT UNACCOUNTED CASH WA S FOUND AND FURTHER FROM INDEPENDENT ENQUIRY U/S 133(6) OF THE ACT IT WAS FO UND THAT THE ASSESSEE HAS BEEN CHARGING MORE FEES THAN SHOWN IN THE BOOKS OF ACCOUNT, CLEARLY SHOWS THAT THE BOOKS WERE NOT RELIABLE AND HAVE BEEN RIGH TLY REJECTED. AS FAR AS THE ESTIMATION OF FEES OF RS. 10,000/- IN CASE OF NVD P ROCEDURE AND RS. 18,700/- IN CASE OF LSCS PROCEDURE REFERENCE TO TABLE V AND TAB LE VI IS NOT CORRECT BECAUSE THROUGH TABLE V AND VI THE ASSESSING OFFICE R IS REFERROMG TO SHOW THAT THERE IS HUGE VARIATION IN THE FEES WHICH IS N OT CORRECT AMOUNT. THIS TABLES DO NOT SHOW THAT THE ASSESSING OFFICER HAS ACCEPTED THE FEES SHOWN IN TABLE V AND VI. IN FACT, IT WAS FOUND THROUGH ENQUIRIES TH AT HIGHER FEES WAS RECEIVED BY THE ASSESSEE. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY. AS FAR AS THE ISSUE REGARDING REJECTION OF BOOKS OF ACCOUNT IS CONCERNE D, WE ARE UNABLE TO INTERFERE IN THE ORDER OF LOWER AUTHORITIES BECAUSE THE BOOKS HAVE BEEN RIGHTLY REJECTED. EVEN IF WE ACCEPT THE SUBMISSIONS THAT BECAUSE OF L ARGE NUMBER OF MEDICINE ITEMS, IT IS NOT POSSIBLE TO MAINTAIN STOCK REGISTE R AND BIRTHS REGISTER IN FORM 3C AND BIRTH REGISTER WAS DULY RECONCILED. NO EXPLANA TION IS COMING FORTH IN RESPECT OF ACTUAL AMOUNT FEES CHARGED BY THE ASSES SEE AND THE FEES RECORDED IN THE BOOKS OF ACCOUNT. THE ASSESSING OFFICER HAS MADE ENQUIRIES U/S 133(6) AND THE SAME HAS BEEN ANNEXED AS PER ANNEXURES C-1, C-2 AND C-3 TO THE ASSESSMENT ORDER AND FEW EXAMPLES HAVE BEEN ENUMERA TED IN TABLE VIII WHICH IS AS UNDER: S NO NAME DELIVERY/SURGERY FEES CHARGES AS PER BOOKS OF THE ASSESSEE FEE CHARGED AS ASCERTAINED AFTER VERIFICATION FROM THE PATIENT 1 SMT. ARCHANA KAMBOJ NORMAL DELIVERY (NVD) RS. 2900/- RS. 8200/- 2 SMT. DOLLY CAESAREAN (LSCS) RS. 4000/- RS. 18,000 /- 3 SMT. PARUL AHUJA CAESAREAN (LSCS) RS. 9000/- RS. 17,000/- TO RS. 18,000/- 9 4 SMT. ANITA GOYAL NVD RS. 3500/- RS. 10,000 INCLUDING ALL CHARGES 5 SMT. GURLEEN KAUR NVD RS. 3900/- RS. 9000/- INCLUDING ALL CHARGES 6 SMT. VANDANA VERMA NVD NO BILL RAISED RS. 9000/- INCLUDING ALL CHARGES IT HAS NOT BEEN DENIED BEFORE US THAT THESE ENQUIRI ES ARE NOT CORRECT, THEREFORE, IT BECOMES CLEAR THAT THE ASSESSEE HAS BEEN CHARGIN G MORE FEES FROM THE PATIENTS AND LESSER AMOUNT OF FEES HAS BEEN CHARGED IN THE BOOKS OF ACCOUNT AND ACCORDINGLY BOOKS OF ACCOUNT HAVE BEEN RIGHTLY REJECTED BY THE ASSESSING OFFICER. 11. AS FAR AS THE ESTIMATION OF INCOME IS CONCERNED , WE FIND NO RELEVANCE ON THE CASE LAW CITED BY THE LD. COUNSEL FOR THE ASSES SEE IN CASE OF CIT V. R.Y. DURLABHJI, 211 ITR 178 (RAJ). HON'BLE HIGH COURT H AS OBSERVED AS UNDER: FINDINGS ON QUESTIONS OF PURE FACT ARRIVED AT BY THE TRIBUNAL ARE NOT TO BE DISTURBED BY THE HIGH COURT ON A REFERENCE UNLESS IT APPEARS THA T THERE WAS NO EVIDENCE BEFORE THE TRIBUNAL UPON WHICH THEY, AS REASONABLE MEN, COULD COME TO THE CONCLUSION TO WHICH THEY HAVE COME; AND THIS IS SO EVEN THOUGH THE HIGH COURT WOULD ON THE EVIDENCE HAVE COME TO A CONCLUSION ENTIRELY DIFFERENT FROM THAT O F THE TRIBUNAL. IN OTHER WORDS, SUCH A FINDING CAN BE REVIEWED ONLY ON THE GROUND THAT THE RE IS NO EVIDENCE TO SUPPORT IT OR THAT IT IS PERVERSE. WHEN A CONCLUSION HAS BEEN RE ACHED ON AN APPRECIATION OF A NUMBER OF FACTS ESTABLISHED BY EVIDENCE, WHETHER TH AT IS SOUND OR NOT MUST BE DETERMINED, NOT BY CONSIDERING THE WEIGHT TO BE ATT ACHED TO EACH SINGLE FACT IN ISOLATION, BUT BY ASSESSING THE CUMULATIVE EFFECT O F ALL THE FACTS IN THEIR SETTING AS A WHOLE. THE ABOVE MAKES CLEAR THAT THE HON'BLE HIGH COURT W ILL NOT NORMALLY DISTURB THE FINDINGS OF THE TRIBUNAL. NO OTHER RATIO HAS BEEN LAID DOWN. THE OTHER ISSUE REGARDING THE VALIDITY OF REASSESSMENT PROCEEDINGS WHICH IS NOT BEFORE US. THEREFORE, THIS CASE IS OF NO HELP TO THE ASSESSEE . 12. SIMILARLY HON'BLE ALLAHABAD HIGH COURT IN THE C ASE OF CIT V. MAHESH CHAND, 199 ITR 247 (ALL) HAS OBSERVED AS UNDER: SUB-SECTION (3) OF SECTION 143 OF THE INCOME-TAX A CT, 1961 DIRECTS THE ASSESSING OFFICER TO MAKE AN ASSESSMENT OF THE TOTAL INCOME O R LOSS OF AN ASSESSEE BY AN ORDER IN WRITING AFTER HEARING SUCH EVIDENCE AS THE ASSES SEE MAY PRODUCE AND SUCH OTHER EVIDENCE WHICH THE ASSESSING OFFICER MAY REQUIRE ON SPECIFIED POINTS AFTER TAKING INTO ACCOUNT ALL RELEVANT MATERIAL WHICH HE HAS GATHERED . IT IS EVIDENT FROM THESE PROVISIONS THAT WHATEVER MAY BE THE ASSESSMENT, THE JUDGMENT O F THE ASSESSING OFFICER MUST REST ON THE MATERIAL WITH HIM. IT IS SETTLED THAT, EVEN WHERE THE ACCOUNT BOOKS ARE FOUND UNRELIABLE, THE ASSESSMENT CANNOT BE MADE ARBITRARI LY AND IN ORDER THAT AN ASSESSMENT COULD BE SUSTAINED, IT MUST HAVE NEXUS TO THE MATER IAL ON RECORD. 10 THUS IT IS CLEAR THAT THE ESTIMATION OF PROFIT WOUL D DEPEND ON THE MATERIAL AVAILABLE BEFORE THE ASSESSING OFFICER AND THE COUR T CANNOT INTERFERE WHERE SUCH ESTIMATION IS REASONABLE IN THE LIGHT OF MATER IAL AVAILABLE. 13. NOW IN THE CASE BEFORE US, THERE IS A MATERIAL TO SHOW THAT THE ASSESSEE HAS DEFINITELY SHOWN LESSER RECEIPTS IN THE BOOKS T HAN THE ACTUAL RECEIPTS REVEALED DURING THE ENQUIRIES. IT IS VERY INTEREST ING TO NOTE THAT EVEN AFTER DURING SURVEY THE ASSESSEE HAS BEEN SUPPRESSING REC EIPTS. FOR EXAMPLE IN THE CASE OF SMT. ANITA GOYAL AGAINST WHOM BILL WAS RAIS ED ON 7.3.2006 I.E. AFTER SURVEY) FOR RS. 3500/- AS RECORDED IN THE BOOKS (SE E TABLE IV) AS STATED THAT SHE HAS PAID A SUM OF RS. 10,000/- (SEE TABLE VIII) . IT IS FURTHER SEEN THAT VERY LOW AMOUNT OF BILL IS FOUND IN THE CASE OF SMT. RAS HMI SHARMA FOR RS. 4000/- ON 19.2.2006 (AFTER SURVEY) WHEREAS MOST OF THE PATIEN TS HAVE RESPONDED TO THE ENQUIRIES THAT THEY HAVE PAID A SUM OF RS. 8000/- T O RS. 10,000/-. IN CASE OF LSCS PROCEDURE ALSO A SMALL BILL OF RS. 3500/- HAS BEEN RAISED ON 2.3.2006 (AFTER SURVEY) WHEREAS MOST OF THE PATIENTS HAVE RE PORTED THAT THEY HAVE PAID A SUM OF RS. 17,000/- TO RS. 18,000/- FOR SUCH PROCED URE. IT IS CLEAR EVEN AFTER THE SURVEY THE ASSESSEE IN SOME CASES, SUPPRESSED T HE RECEIPTS. HOWEVER, AT THE SAME TIME WE FIND FORCE IN THE SUBMISSIONS THAT SOME VARIATION IN THE FEES CHARGED CAN BE DUE TO THE AMOUNT OF TIME SPENT ON A PARTICULAR PATIENT WHICH DEPENDS ON CASE TO CASE. LOWER FEES MIGHT HAVE BEE N CHARGED EVEN IN SOME REALLY NEEDED CASES, FOR EXAMPLE FOR POOR FAMILIES. THEREFORE, CONSIDERING THE OVERALL CIRCUMSTANCES OF THE CASE, IN OUR OPINION, IT WOULD MEET THE ENDS OF JUSTICE IF A SUM OF RS. 2,50,000/- IS ESTIMATED ON ACCOUNT OF SUPPRESSION OF RECEIPTS FOR NVD AND LSCS PROCEDURE FOR POST-SURVEY PERIOD. NO CREDIT UNDER THE AMOUNT SURRENDER CAN BE GIVEN IN THE CASES WH ERE THE FEES HAS BEEN CHARGED EVEN AFTER THE SURVEY AS CREDIT HAS ALREADY BEEN GIVEN BY THE ASSESSING OFFICER IN RESPECT OF PRE-SURVEY PERIOD. THEREFORE, THE ARGUMENT THAT THE ASSESSEE HAS ALREADY SURRENDERED AMOUNTING OF RS. 30.00 LAKHS AND NO FURTHER ADDITION IS CALLED FOR, HAS NO MERIT. A S FAR AS THE ADDITION AMOUNTING TO RS. 7,90,590/- ON ACCOUNT OF SUPPRESSION OF REC EIPTS FROM OTHER SOURCES 11 SUCH AS OTHER SURGERIES AND FEES RELATED TO OPD PAT IENTS AND LAB TESTS IS CONCERNED NO ENQUIRIES HAVE BEEN MADE WITH THE PATI ENTS IN RESPECT OF THESE SERVICES. EVEN NO STUDY HAS BEEN CONDUCTED IN RESP ECT OF THERE SERVICES TO SHOW VARIATION IN FEE AND SUPPRESSION OF FEE. OTHER WISE ALSO COMMON SENSE TELLS US THAT THERE IS VERY LITTLE SCOPE FOR MANIPU LATING AGAINST THE ACCOUNT OF OPD PATIENTS AND LAB TESTS BECAUSE VERY LITTLE AMOU NT SHOULD BE INVOLVED. THEREFORE, IN THE ABSENCE OF ANY MATERIAL, WE DELE TE THE ADDITION AMOUNTING TO RS. 7,90,590/- ON ACCOUNT OF SUPPRESSION OF FEES O F OTHER SURGERIES AND OTHER SERVICES. ACCORDINGLY WE SET ASIDE THE ORDER OF LD . CIT(A) AND DIRECT THE ASSESSING OFFICER TO MAKE TRADING ADDITION ON ACCOU NT OF SUPPRESSION OF FEES AMOUNTING TO RS. 2,50,000/-. ITA NO. 1081/CHD/2011, A.Y 2007-08 14. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLL OWING GROUND OF APPEAL: THE LD. CIT HAS WITHOUT APPRECIATING THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND WITHOUT CONSIDERING THE SUBMISSIONS MA DE ERRED IN CONCLUDING THAT THE APPELLANT HAD SUPPRESSED HIS IN COME BY RS. 7,30,000/- AND IN UPHOLDING THE SAME. THE ADDITION IS BASED ON SUSPICION, INFERENCES, SURMISES, PRESUMPTIONS AND C ONJECTURES. THE ADDITION BE DELETED. 15. BOTH THE PARTIES SUBMITTED THAT THE ISSUED INVO LVED IS THE SAME AND THEREFORE, THE SAME ARGUMENT CAN BE ADOPTED IN THI S ORDER ALSO. 16. WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY A ND FIND THAT IN THIS ORDER ALSO SOME ENQUIRIES HAVE ALSO BEEN CONDUCTED AND IT WAS DETERMINED THAT THERE WAS HUGE VARIATION IN THE FEES CHARGED IN THE CASE OF NVD AND LSCS PROCEDURE. ON THE BASIS OF THESE VARIATIONS, THE ADDITION HAS BEEN WORKED OUT AT RS. 7,30,906/-. HOWEVER, NO ENQUIRIES HAVE BEEN MADE FROM OUTSIDERS. THEREFORE, SOME OF THE JUSTIFICATIONS WHICH WERE A CCEPTED BY US FOR VARIATION IN THE FEES IN ASSESSMENT YEAR 2006-07 WOULD BE APPLIC ABLE IN THIS CASE ALSO. ACCORDINGLY WE ARE OF THE OPINION THAT IT WOULD BE REASONABLE IF THE ADDITION ON ACCOUNT OF SUPPRESSION OF FEES IS ESTIMATED AT RS. 4.00 LAKHS FOR THIS YEAR. 12 THEREFORE, WE SET ASIDE THE ORDER OF LD. CIT(A) AN D DIRECT THE ASSESSING OFFICER TO MAKE ADDITION OF RS. 4.00 LAKHS. 17. IN THE RESULT, APPEALS FILED BY THE ASSESSEE AR E PARTLY ALLOWED. ORDER PRONOUNCED ON 9.05.2012 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICAL MEMBER ACCOUNTANT MEMBER DATED: 09 .05.2012 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/ THE DR