M/s. New Life Sonoscan Centre, Hooghly V. JCIT, Range - 2, Hooghly, Hooghly

ITA 110/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4966 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 06-03-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 19-01-2012
• Court: TRIBUNAL
• Department Lawyers: P K CHAKRABORTY LD JCITSR
• Assessee Lawyers: SUBASH AGARWAL LD AR

Judgement Text

, B , , INCOME TAX APPELLATE TRIBUNAL, BENCH- B KOLK ATA ( ) BEFORE . , ! SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER '#$ /AND 1 & ' , ! SHRI GEORGE MATHAN, JUDICIAL MEMBER $( / ITA NO. 110/KOL/2012 A.Y 2008-09 M/S. NEW LIFE SONOSCAN CENTRE PAN: AAEFN 8996N - #' - - VERSUS - . J.C.I.T, RANGE-2, HOOGHLY ( &* / APPELLANT ) ( +,&* / RESPONDENT ) &* . ' /FOR THE APPELLANT /SHRI SUBASH AGARWAL, ADVOCATE, LD.AR +,&* .' / FOR THE RESPONDENT: / SHRI P.K. CHAKRABORTY, LD. JCIT/SR.DR /'#0 1 2 /DATE OF HEARING : 26-11-2013 34 1 2 /DATE OF PRONOUNCEMENT: 28/11/2013 5 / ORDER 1 &' , ! SHRI GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), XXXVI, KOLKATA IN APPEAL NO. 363/CIT(A)-XXXVI/KOL/CIRCLE-2, HOOGHLY/10-11 DATED 08.11.2013 FOR THE ASSESSMENT YEAR 2008-09. 2. SHRI SUBASH AGARWAL, ADVOCATE, LEARNED AR REP RESENTED ON BEHALF OF THE ASSESSEE AND SHRI P.K. CHAKRABORTY, LEARNED. JCIT/.DR REPR ESENTED ON BEHALF OF THE REVENUE.. 3. IN THIS ASSESSEES APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)XXXVI KOLKATA (HEREINAFTER REFERRED TO AS THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR THE SAKE O F BREVITY) GRIEVOUSLY ERRED IN PRESUMING THAT A SUM OF RS.86,770/- WAS SP ENT FOR PURCHASE OF FILMS INCLUDING JELLY AND THEREBY HOLDING THAT THE APPELLANTS RETURNED INCOME SHOULD BE INCREASED PRORATE THE RATE OF AVER AGE RECEIPT PER FILM WHICH IS PERVERSE AND CAPRICIOUS. 2. FOR THAT THE LEARNED COMMISSIONER INCOME TAX (A PPEALS) ALLEGED ASSUMPTION THAT THE APPELLANT PURCHASED A TOTAL OF 8798 FILMS (INCLUDING JELLY FOR RS. 1,77,000/- IS ENTIRELY BASELESS AS FI LM PURCHASE CAN NEVER INCLUDE JELLY AND THE COSTS OF PURCHASES OF JELLY A ND CHEMICALS WERE ALTOGETHER IGNORED WITHOUT WHICH SONOSCANS COULD NO T BE CARRIED ON SO THAT THE CONCLUSION REACHED BY HIM IN THIS BEHALF IS DEV OID OF ANY BASIS AND INFRUCTUOUS. ITA NO. 110/KOL/2012-B-GM 2 3. FOR THAT THE LEARNED C. I. T. (APPEALS) FAILED TO CONSIDER THE BASIS FACT THAT A SONOSCAN BUSINESS COULD NOT BE CARRIED ON WITHOUT INCURRING SUBSTANTIAL EXPENSES ON JELLY AND FILM CHEMICALS FO R TAKING AND DEVELOPING PLATES SO THAT ATTRIBUTING THE COST THEREOF TO PURC HASE OF FILMS IS AN EXERCISE IN FUTILITY AND BETRAYS A LACK OF CONCEPTION OF THE MODUS OPERANDI WHICH IS TANTAMOUNT TO A CAPRICIOUS APPROACH LACKING ANY VAL IDITY AT ALL. 4. FOR THAT NEITHER THE LEARNED ASSESSING OFFICER NOR THE LEARNED C. I. T. (APPEALS) FOUND OR ESTABLISHED ANY DEFECTS IN AC COUNTS SO AS TO WARRANT A HUGE ESTIMATE OF ALMOST TWICE THE NUMBER OF FILM PURCHASE SHOWN BY THE APPELLANT AND THE DETERMINATION SOUGHT TO BE MADE I N THIS BEHALF IS NULL AND VOID AB INITIO. 5. FOR THAT MISCLASSIFICATION OF EXPENSE INCURRED IN PURCHASING FILM CHEMICALS AND JELLY UNDER THE HEAD FILMS IS MEREL Y A LAPSE WHICH CANNOT HAVE ANY ADVERSE EFFECT ON DETERMINATION OF ACTUAL INCOME WHICH ALONE IS TAXABLE AND ANY CONSEQUENCES OF AN IMAGINE ANY ABER RATION THERE FROM AS CONCEIVED BY THE LEARNED ASSESSING OFFICER AND ENDO RSED BY THE LEARNED C. I. T. (APPEALS) CANNOT BE VISITED ON THE APPELLA NT. 6. FOR THAT THE LEARNED C. I. T. (APPEALS) FAILED TO TAKE INTO ACCOUNT THE FACT THAT EXPENSES ON FILM CHEMICALS AND JELLY HAVE NOT BEEN SEPARATELY ACCOUNTED FOR IN THE BOOKS AND IT CONSTITUTES INCON TROVERTIBLE EVIDENCE THAT SUCH ESSENTIAL ITEMS WERE LUMPED UNDER THE HEAD FI LMS WHICH THEREFORE NULLIFIES THE CONCLUSION THAT SUCH AMOUNTS WERE EXP ENDED FOR ALLEGED PURCHASE OF FILMS, A VIEW WHICH ENTIRELY MILITATES AGAINST TRANSPARENT AND OBVIOUS FACTS APPARENT FROM RECORD. 7. FOR THAT THE APPELLANT ONLY HAD THE SERVICE OF A PART TIME DOCTOR AVAILABLE FOR HIS ESTABLISHMENT AND IT WAS PHYSICAL LY IMPOSSIBLE TO UNDERTAKE AS MANY SONOSCANS AS IMAGINED BY THE LEAR NED ASSESSING OFFICER AND THE LEARNED CI. T. (APPEALS) COMPOUNDED THE ERROR BY FAILING TO TAKE INTO ACCOUNT THAT THE WORKING HOURS WOULD A CT AS AN ABSOLUTE ESTOPPELS IN THIS RESPECT. 8. FOR THAT THE LEARNED C. I. T. (APPEALS) IGNORED THE PREPONDERANCE OF PROBABILITIES AND CIRCUMSTANCES ATTENDING BY UPH OLDING A PORTION OF HUGE ENTRANCEMENT OF TURNOVER WITHOUT EVEN MENTIONI NG ANY CONCLUSION OF REJECTION OF BOOKS IN ABSENCE OF EVIDENCE THEREFORE AND WITHOUT BRINGING ON RECORD ANY PROOF THAT THE INCOME CONCEIVED TO HAVE BEEN EARNED USING AN OLD SEMIAUTOMATIC MACHINE FOR EXCEEDED THE CAPITAL COST OF A NEW MACHINE WHICH IS A TOTALLY UNREALISTIC PROPOSITION AND ERRE D IN FAILING TO CONSIDER PROPER ISSUES OF INCOMES EARNED IN LIKE ESTABLISHME NTS IN THE SOME AREA AND TAKING INTO ACCOUNT IMPROPER ISSUES ON THE BASE S OF SURMISE. SUSPICION AND CONJECTURE LACKING ANY ATTRIBUTE OF LOGIC AND S UBSTANTIVE UNDERLYING MATERIAL PARAMETERS IN JUSTIFICATION. 4.. IT WAS THE SUBMISSION BY THE LEARNED AR FOR THE ASSESSEE THAT IN THE COURSE OF ASSESSMENT THE ASSESSING OFFICER HAD MADE THE ADD ITIONS ON ACCOUNT OF ALLEGED UNDISCLOSED ITA NO. 110/KOL/2012-B-GM 3 INCOME BY CALCULATING THE NUMBER OF PATIENTS AND BY TAKING INTO CONSIDERATION THE NUMBER OF FILMS PURCHASED BY THE ASSESSEE. IT WAS THE SUBMIS SION THAT THE ASSESSEE IS RUNNING A BUSINESS OF ULTRA SONOGRAPHY. IT WAS THE SUBMISSION THAT TH E ASSESSING OFFICER HAD COMPUTED THE NUMBER OF FILMS PURCHASED IN CASH, THOUGH THE PUR CHASES ALSO INCLUDED THE COST OF JELLY, WHICH IS SUBSTANTIALLY REQUIRED IN THE ULTRA SONO GRAPHY SCAN TEST. 5. IT WAS THE FURTHER SUBMISSION BY THE LEARNED AR FOR THE ASSESSEE THAT ON APPEAL, THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) HAS RE -WORKED THE UNACCOUNTED RECEIPTS IN THE HANDS OF ASSESSEE FIRM AND ARRIVED AT UNDISCLOSED RECEIPTS OF RS.33,73,950/- AS AGAINST RS. 61,74,464/- COMPUTED BY THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT EVEN THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) HAS NOT GRANTED THE ASSESSEE THE BENEFIT OF DEDUCTION ON ACCOUNT OF PURCHASES OF JELLY. IT WAS THE FURT HER SUBMISSION THAT THERE WAS ALSO OTHER CHARGES ON SCAN TEST, WHICH WAS NOT CLAIMED BY THE ASSESSEE. HE ALSO DREW OUR ATTENTION TO THE COMPARATIVE ANALYSIS FOR THE EARLIER YEARS. IT WAS THE SUBMISSION THAT AN ESTIMATED DEDUCTION MAY BE GRANTED TO THE ASSESSEE. 6. IN REPLY, LEARNED JCIT/DR HAS SUBMITTED THAT THE ASSESSING OFFICER HAS DONE A DETAILED CALCULATION TO ARRIVE AT THE ESTIMATED NUMBER OF FI LMS USED IN THE SCAN. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAS ALSO SPECIFICALLY M ENTIONED THAT THE PURCHASES INCLUDED THE PAYMENTS FOR PURCHASE OF USG JELLY. IT WAS THE SUB MISSION THAT THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) HAS ALREADY GIVEN SUBSTANTIAL RELIEF BY RE-WORKING THE ESTIMATE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE COMPARATIVE ANALYSIS FOR THE RELEVANT ASSESSMENT YEAR ALONG WITH THE EARLIER AS SESSMENT YEARS CLEARLY SHOWS THAT THE NUMBER OF PATIENTS HAVE BEEN REDUCING WHEREAS THE R ECEIPTS OF THE CENTRE HAVE BEEN INCREASING. FURTHER, A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE ASSESSING OFFICER HAS ADOPTED THE RATE OF RS.542 [RS.925600/1708] BEING T HE AVERAGE FEES DISCLOSED BY THE ASSESSEE, WHEN CONSIDERING THE DISCLOSED TRANSACTION OF THE A SSESSEE. NOW WHAT THE ASSESSING OFFICER AND THE LEARNED COMMISSIONER OF INCOME-TAX (APPEA LS) BOTH HAVE ESTIMATED THE INCOME OF THE ASSESSEE BY TAKING IN TO CONSIDERATION THE CASH EXPENDITURE TOWARDS PURCHASE OF FILMS. THUS, THE ASSESSING OFFICER AND THE LEARNED COMMIS SIONER OF INCOME-TAX BOTH HAVE COMPUTED THE NUMBER OF FILMS PURCHASED FROM THE DISCLOSED FIGURE OF 4500 TO 13400 BEING A DIRECT JUMP OF 8900 [NO. OF FILMS] BY THE ASSESSING OFFICE R AND 6225 [NO. OF FILMS] BY THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS). NOW, ALL THES E CALCULATIONS CLEARLY ARE ON ESTIMATE ITA NO. 110/KOL/2012-B-GM 4 BASIS. THIS ESTIMATION HAS BEEN DONE ON ONE SINGLE AMOUNT OF PURCHASE OF RS.86,760/- MADE IN CASH. IN SHORT, AFTER THE ESTIMATION AND COMPUTATI ON MADE BY THE ASSESSING OFFICER AND THE LEARNED COMMISSION OF INCOME-TAX(APPEALS), CASH PUR CHASE OF RS. 86,760/- HAS RESULTED IN AN ADDITION OF RS.33,73,950 I.E NEARLY 39 TIMES MULTI PLICATION FACTOR. THIS WOULD PRACTICALLY MEAN THAT THE TOTAL RECEIPTS OF THE ASSESSEE DISCLO SED AT RS.9,25,600 HAS BEEN INCREASED TO RS. 42,99,550/- AND THE NUMBER OF PATIENTS BEING INC REASED TO NEARLY 8000. 8000 PATIENTS IN A YEAR, WHEN EVEN EQUALLY DIVIDED BY 365 DAYS ASSUMI NG NO HOLIDAY AND NO LEAVE, WOULD COME TO NEARLY 22 NUMBER OF PATIENTS EVERY DAY. THIS IS ADMITTEDLY AN IMPRACTICAL POSSIBILITY. TAKING INTO CONSIDERATION THIS FACT, TREATING COMPL ETE CASH PURCHASES OF RS. 86,760/- AS BEING FOR PURCHASES OF FILMS AND AS THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE ITS CLAIM TOWARDS PURCHASE/EXPENDITURE OF RS.86,760/- PROPERLY , WE A RE OF THE VIEW THAT AN ESTIMATED ADDITION OF RS. 20 LAKH WOULD SUFFICE IN THE PRESENT CASE. THUS, THE ASSESSEE GETS A RELIEF OF RS.13,73,950. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED AS STATED ABOVE. 5 / 6 /' 7 8 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT 28/11 /2013 SD/- SD/- ** PRADIP SPS 5 1 +..9 :94; / COPY OF THE ORDER FORWARDED TO: 1. . &* / THE APPELLANT : M/S. NEW LIFE SSONOSCAN CENTRE, HOSPITAL ROAD, AKHANBAZAR, P.O CHINSURAH, DIST:HOOGHLY - 712101. 2 +,&* / THE RESPONDENT- JT. COMMISSIONER OF INCOME TAX , RANGE-2, AAYKAR BHAWAN, G. T ROAD P.O CHINSURAH DIST HOOGHLY 712101 . 3 4. . .5' / THE CIT, .5' ( )/ THE CIT(A) 5 . #<.7 +.' / DR, KOLKATA BENCH 6 . GUARD FILE . ,9 +./ TRUE COPY, 5'// BY ORDER, $ /ASSTT REGISTRAR ( . , ! ) ( ABRAHAM P. GEORGE, ACCOUNTANT MEMBER) ( 1 & ' , ! ) ( GEORGE MATHAN, JUDICIAL MEMBER ) ( (( ( 2 2 2 2 ) )) ) DATE 28/11/2013