DR. DHIRAJ BHANJI GADA, Indore V. THE ACIT 4(1), Indore

ITA 122/IND/2014

• Counselvise Citation: 12222714 RSA 2014
• Duration Of Justice: 1 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: G R PARMAR
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.122/IND/2014 A.Y. : 2009-10 DR.DHIRAJ BHANJI GADA, ACIT, 4(1), 176, GADA NURSING HOME, VS INDORE. NANDLALPURA, JAWAHAR MARG, INDORE. APPELLANT RESPONDENT P.A.N. NO A BUPG7032 P APPELLANT BY SHRI G.R.PARMAR, ADV. RESPONDENT BY SHRI R. A. VERMA, SR. DR . DATE OF HEARING : 0 9 .0 9 .2015 DATE OF PRONOUNCEMENT : 06 . 10 .2015 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-II, INDORE, DATED 28.11.2013 FOR THE ASSE SSMENT YEAR 2000-10. 2. FOLLOWING GROUNDS ARE RAISED BY THE ASSESSEE IN THI S APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)II WAS NOT CORRECT IN HOLDING THAT SH ORT TERM HELP OF RS. 1 LAKH TO ATUL SRIVASTAVA WAS HIT BY SECTION 40A(3). 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT CORRECT IN HOLDING THAT EXPENDITURE OF RS. 97,291/- ON FOREIGN TOUR WAS NOT PROVED TO BE FOR PROFESSIONAL PURPOSES. 3. GROUND NO. 3 WAS NOT PRESSED. THE SAME IS DISMISSE D AS NOT PRESSED. -: 3: - 3 4. THE ASSESSEE IS A DOCTOR. THE ASSESSEE HAS FILED T HE RETURN OF INCOME FOR ASSESSMENT YEAR 2009-10 DECLAR ING INCOME AT RS. 27,62,940/-. THE ASSESSEE IS A QUALIF IED DOCTOR AND RUNNING A NURSING HOME AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND THAT THE AO HA S VERIFIED THE LEDGER AND EXAMINED THE CASH BOOK AND HE FOUND THAT THE ASSESSEE HAS PAID RS. 20,000/- IN EXCESS OF CASH PA YMENT, WHICH READS AS UNDER :- DATE OF PAYMENTS NAME OF PERSON NATURE OF PAYMENTS AMOUNTS (RS.) 21.04.2008 ATUL SHRIVASTAVA - 1,00,000 30.10.2008 BOMBAY BATTERY REPAIR & MAINTENANCE 68,800 05.04.2008 DR.VIJAY POTNIS ASSISTANT CHARGES 25,000 05.05.2008 DR.VIJAY POTNIS ASSISTANT CHARGES 25,000 05.06.2008 DR.VIJAY POTNIS ASSISTANT CHARGES 25,000 05.07.2008 DR.VIJAY POTNIS ASSISTANT CHARGES 25,000 05.08.2008 DR.VIJAY POTNIS ASSISTANT CHARGES 25,000 05.09.2008 DR.VIJAY POTNIS ASSISTANT CHARGES 25,000 05.10.2008 DR.VIJAY POTNIS ASSISTANT CHARGES 25,000 05.11.2008 DR.VIJAY POTNIS ASSISTANT CHARGES 25,000 05.12.2008 DR.VIJAY POTNIS ASSISTANT CHARGES 25,000 06.01.2009 DR.VIJAY POTNIS ASSISTANT CHARGES 22,950 05.02.2009 DR.VIJAY POTNIS ASSISTANT CHARGES 22,450 05.03.2009 DR.VIJAY POTNIS ASSISTANT CHARGES 22,450 TOTAL 3,92,850 -: 4: - 4 5. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CI T(A) HAS CONFIRMED THE ADDITION OF RS. 1 LAC CASH TO SHR I ATUL SHRIVASTAVA. 6. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT TH E ASSESSEE HAS GIVEN TEMPORARY PERSONAL ACCOMMODATION TO ONE SHRI ATUL SHRIVASTAVA AS SERIOUS OPERATION OF HIS F ATHER WAS FIXED ON THE NEXT MORNING AT BOMBAY HOSPITAL, INDOR E. CHEQUE GIVEN BY SHRI SHRIVASTAVA TO THE BANK WAS RETURNED TO HIM AT THE ELEVENTH HOUR FOR PAYMENT IN CASH OR BANK ORDER . BOTH WERE NOT POSSIBLE ON ACCOUNT OF BANK STRIKE ON THAT DAY. CASH WAS GIVEN TO SHRI SHRIVASTAVA ON HUMANITARIAN GROUN D. AN AFFIDAVIT SWORN BY THE ASSESSEE IS ATTACHED. THE AS SESSEE IN HIS AFFIDAVIT HAS SUBMITTED THAT HE HAS GIVEN RS. 1 LAC TO ONE ATUL SHRIVASTAVA. HE WAS IN HOSPITAL. THE CHEQUE WA S GIVEN BY SHRI ATUL SHRIVASTAVA, WHICH WAS RETURNED BACK BY T HE HOSPITAL ON ACCOUNT OF BANK STRIKE. THE CASH WAS PA ID TO DOCTOR COMING FROM MUMBAI TO PERFORM THE OPERATION NEXT DAY MORNING. IMMEDIATE WITHDRAWAL FROM THE BANK WAS NOT POSSIBLE DUE TO BANK STRIKE ON THAT DAY. THEREFORE, THE ASSESSEE HAS PAID THIS AMOUNT TO SHRI SHRIVASTAVA A ND THIS -: 5: - 5 PAYMENT IS NOT A CASH PAYMENT IN BUSINESS NOR A LOA N OR ADVANCE AND THIS IS ONLY A TEMPORARY ACCOMMODATION ENTRY GIVEN FOR OPERATION OF HIS FATHER. THEREFORE, IT MA Y BE ALLOWED. 7. THE LD. SENIOR D.R. OBJECTED TO IT. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSEE IS A DOCTOR BY P ROFESSION AND THE ASSESSEE HAS GIVEN TEMPORARY TRANSFER ACCOM MODATION OF RS. 1 LAC TO SHRI ATUL SHRIVASTAVA AS THE SERIOU S OPERATION OF HIS FATHER WAS FIXED IN THE NEXT MORNING AT BOMBAY HOSPITAL, INDORE. THE ASSESSEE ALSO STATES THAT THE CHEQUE GI VEN BY SHRI ATUL SHRIVASTAVA TO THE BANK WAS ALSO RETURNED AND ON THAT DAY, THERE WAS BANKS STRIKE. ULTIMATELY, DOCTOR HA S GIVEN RS. 1 LAC IN CASH TO SHRI ATUL SHRIVASTAVA ON HUMANITAR IAN GROUND. THE ASSESSEE HAS DECLARED THESE FACTS BEFOR E US BY AFFIDAVIT. THE ASSESSEE HAS GIVEN THE CHEQUE TO SHR I ATUL SHRIVASTAVA THAT WAS ALSO RETURNED BY THE HOSPITAL ON ACCOUNT OF BANK STRIKE. THE CASH WAS PAID TO DOCTOR COMING FROM BOMBAY TO PERFORM OPERATION ON NEXT DAY MORNING. TH E ASSESSEE HAS GIVEN THIS AMOUNT OF CASH PAYMENT NOT FOR BUSINESS PURPOSE, NOT AS LOAN OR AS ADVANCE. THEREF ORE, WE ARE -: 6: - 6 OF THE VIEW THAT THIS AMOUNT IS NOT A BUSINESS EXPE NDITURE. THEREFORE, NO DISALLOWANCE U/S 40A(3) CAN BE MADE A ND SIMILARLY, THIS IS NOT A LOAN OR ADVANCE. THEREFORE , WE ARE OF THE VIEW THAT THE LD. CIT(A) IS NOT JUSTIFIED IN TREATI NG THE ADVANCE OF RS. 1 LAC U/S 40A(3). WE ALLOW THE APPEAL OF TH E ASSESSEE AND DELETE THE ADDITION. 9. THE AO HAS DISALLOWED THE CONFERENCE EXPENSES ON TH E GROUND THAT THE CONFERENCE EXPENSES WERE INCURRED F OR A REGULAR TOUR. THEREFORE, THIS WAS DISALLOWED. 10. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) CONFIRMED THE SAME. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSEE HAS PURCHASED 8 00 EUROS ON 2.7.2008 BY ISSUE OF CHEQUE NO. 211094 OF BANK OF INDIA. THE EUROS WERE SPENT ON FOREIGN TOUR AS STAY CHARGE S AT HOTEL GRANTTAVANA BARCELONA FOR FOUR NIGHTS AND OTHER WEL FARE EXPENDITURE FOR TRAVELLING IN TAXI TO BARCELONA TO ATTEND THE MEETING, FOR GOING TO HOTEL AND BACK TO HOTEL FOR C ONVEYANCE FOR FOUR DAYS. THE ASSESSEE HAS SUBMITTED BEFORE US THE MINUTES OF CONFERENCE. MOREOVER, THE CERTIFICATE FROM THE C ONFERENCE IS ALSO ATTACHED. -: 7: - 7 12. WE HAVE GONE THROUGH THE MATERIAL SUBMITTED BEFORE US AND FROM THE MATERIAL WE FIND THAT THE ASSESSEE IS A DOCTOR AND HE IS A GYNECOLOGIST. THEREFORE, THERE WAS A DI SCUSSION REGARDING ASSESSMENT OF TUBAL PATENCY CARRIED OUT B Y THE ASSESSEE AND ONE DR. SILADITYA BHATTACHARYA. WE FIN D THAT THE ASSESSEE HAD VISITED FOR CONFERENCE ONLY AND THE AS SESSEE HAS SUBMITTED ALL THE DETAILS OF HIS EXPENDITURE INCURR ED FOR HOTEL CHARGES AND THE TAXI CHARGES FOR GOING FROM AIR-POR T TO HOTEL. THEREFORE, WE ARE OF THE VIEW THAT THE REVENUE AUTH ORITY IS NOT JUSTIFIED IN DISALLOWING THE SAME EXPENSES. THEREFO RE, WE ALLOW THE APPEAL ON THIS GROUND. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 6 TH OCTOBER, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 6 TH OCTOBER, 2015. CPU* -: 8: - 8 30