Pramathes Das Mahapatra, Kolkata V. D.C.I.T Cir - 55,kolkata, Kolkata

ITA 1793/KOL/2013

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 101332 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 06-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 07-06-2013
• Court: TRIBUNAL
• Department Lawyers: TANUJ KR NEOGI
• Assessee Lawyers: S L KOCHAR; ANIL KOCH AR ARS
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI N. V. VASUDEVAN, JM & SHRI M. BALAGAN ESH, AM] I.T.A NO.1793/KOL/2013 ASSESSMENT YEAR: 2008-09 PRAMATHES DAS MAHAPATRA VS. DEPUTY COMMISSIONER OF INCOME-TAX, (PAN: ADQPD6037R) CIRCLE-55, KOLKATA. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 06.06.2016 DATE OF PRONOUNCEMENT: 08.07.2016 FOR THE APPELLANT: S/SHRI S. L. KOCHAR & ANIL KOCH AR, ARS FOR THE RESPONDENT: SHRI TANUJ KR. NEOGI, JCIT, SR. DR ORDER PER SHRI M. BALAGANESH, AM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXXVI, KOLKATA VIDE APPEAL NO. 315/CIT(A)-XXXVI/KOL/CIR-55/10-11/42 DAT ED 26.03.2013. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-55, KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2008- 09 VIDE HIS ORDER DATED 31.12.2010. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) IS JUSTIFIED IN UPHOLDING THE ADDITION MADE IN THE SUM OF RS.11,25,500/- TOWARDS PROFESSIONAL INCOME OF THE ASSESSEE IN THE FACTS AN D CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSES SEE IS IN THE MEDICAL PROFESSION AND CARRIES ON HIS PROFESSIONAL ACTIVITIES AS A SURGEON SINCE PAST SEVERAL YEARS. THE ASSESSEE RUNS A NURSING HOME IN THE NAME & STYLE OF SPECTRUM CLINIC AND ENDOSCOPY RESEARCH INSTITUTE AT 6A & 6F, NEELAMBER, 28B, SHAKESPEARE S ARANI, KOLKATA - 700017. RETURN OF INCOME WAS SUBMITTED BY THE ASSESSEE ON 29.09.20 08 DECLARING TOTAL INCOME OF RS.70,87,349/-. THE ASSESSEE MAINTAINS BOOKS OF ACC OUNTS AND HAS ALL RELEVANT RECORDS ALONG WITH AUDITED STATEMENTS OF ACCOUNTS. ON REQUI SITION MADE BY THE A.O., THE ASSESSEE INSTRUCTED HIS ACCOUNTANT TO PREPARE DETAI LED STATEMENTS AS REQUIRED BY THE A.O. AND THE SAME WERE SUBMITTED TO THE A.O. WHO UP ON RECEIPT OF THE SAME ISSUED NOTICES U/S 133 (6) OF THE ACT TO BELLEVUE CLINICS, WOODLANDS ETC. FROM WHERE THE ASSESSEE HAD RECEIVED PROFESSIONAL FEES. COMPLIANCE WAS RECEIVED BY THE A.O. FROM BELLE VUE CLINIC AND WOODLANDS MEDICAL CENTRE LTD. WHO HAD GIVEN INFORMATION 2 ITA NO.1793/K/2013 PRAMATHES DAS MAHAPATRA, AY 2008-09 ABOUT PERFORMING OF SURGICAL OPERATIONS AT THEIR CL INICS. AS PER BELLE VUE CLINIC THERE WAS PERFORMANCE OF SURGICAL OPERATIONS IN 49 CASES IN THE WHOLE YEAR AND AS PER WOODLANDS MEDICAL CENTRE THERE WERE 36 SUCH CASES O F OPERATION. THE A.O. NOTED THAT THE ASSESSEE HAD SHOWN 23 CASES AND 23 CASES RESPEC TIVELY IN THE ABOVE MENTIONED TWO NURSING HOMES AS PER DETAILS FURNISHED. THE DISCREP ANCY WHICH HAS BEEN NOTED BY THE A.O. WAS INTIMATED TO THE ASSESSEE FOR NECESSARY EX PLANATION WITH SUPPORTING DOCUMENTS. THE ASSESSEE SUBMITTED EXPLANATION GIVIN G INFORMATION ABOUT NO. OF PATIENTS OPERATED AND CORRESPONDING RECEIPT OF FEES . THE A/R ALSO SUBMITTED ONE WRITTEN BRIEF WHEREIN IT WAS STATED THAT RECEIPTS F ROM PARK CLINIC WAS RS.90,000/- AND NOT RS.30,000/- AS REPORTED EARLIER. FURTHER, IT WA S POINTED OUT THAT THERE HAVE BEEN SOME INADVERTENT ERRORS BY THE ACCOUNTANT WHO HAD P REPARED THE DETAILS OF THE PROFESSIONAL FEES AND THAT A FRESH LIST WAS PREPARE D WHICH WAS SUBMITTED STATING ALL RELEVANT PARTICULARS. RECEIPT FROM TATA MOTORS AMOU NTING TO RS.67,875/- WAS INCLUDED IN THE RECEIPTS OF SPECTRUM CLINIC AND ENDOSCOPY RE SEARCH INSTITUTE. PAYMENTS WERE RECEIVED BY CHEQUES AND DEPOSITED IN THE BANK ACCOU NT. THE A.O. HAS OBSERVED THAT THE ASSESSEES ACCOUNTANT SRI SAMIK DEY WHO WROTE THE A CCOUNTS DURING THE RELEVANT YEAR, BECAME TERMINALLY ILL AND HAD BEEN SENT TO BANGALOR E FOR TREATMENT. THE NEW INCUMBENT SRI INDRAJIT MITRA WAS NOT CONVERSANT/FAM ILIAR WITH THE SET OF ACCOUNTS WRITTEN BY THE EX-ACCOUNTANT AND PREPARED THE DETAI LS ON THE BALANCING SYSTEM AND WITHOUT TAKING CARE TO CONCLUDE THE WORKSHOP FREE C ASES AS WELL AS FREE AND COMPLIMENTARY CASES CONDUCTED AT SPECTRUM CLINIC & ENDOSCOPY WHICH IS ASSESSEES OWN UNIT. THE ASSESSEE SUBMITTED TO THE A.O. A FRE SH LIST OF PROFESSIONAL FEES IN THE FORMAT SUBMITTED EARLIER. THE A.O. EXAMINED THE MAT TER WITH REFERENCE TO THE SUBMISSIONS MADE BY THE ASSESSEE RELATING TO THE EA RLIER BREAK UP AND THE FRESH ONE AND THE DETAILS SUBMITTED. THE CASE OF THE A.O. IS THAT THERE WERE TOTAL RECEIPTS OF RS.L,19,93,568/- FROM 438 PATIENTS WHICH WAS AT AN AVERAGE OF RS.27,382/- IN HIS OWN CLINIC. HOWEVER, IN THE REVISED STATEMENT NO. OF PA TIENTS OPERATED IS SHOWN 457 AND AMOUNT RECEIVED IS SHOWN AS RS.77,80,168/- AT AN AV ERAGE OF RS.17,024/-. THE ASSESSEE HAS SHOWN 23 OPERATIONS CONDUCTED UNDER BELLE VUE C LINIC FOR WHICH THE ASSESSEE RECEIVED RS.9,31,000/- BUT IN THE LATER STATEMENT T HE ASSESSEE HAS SHOWN 34 OPERATIVE CASES WITH RECEIPT OF RS.1L ,83,000/- AND 15 WORKSH OP FREE CASES TOTALING TO 49 CASES MATCHING WITH THE REPORT SENT BY BELLE VUE CLINIC A UTHORITY. THE A.O. OBSERVED THAT 3 ITA NO.1793/K/2013 PRAMATHES DAS MAHAPATRA, AY 2008-09 THE ASSESSEE IS SILENT AS, TO HOW 11 OPERATIVE CASE S OF BELLE VUE CLINIC HAS ESCAPED. IT IS ALSO OBSERVED BY THE A.O. THAT THE ASSESSEE IS SILE NT AS TO HOW MRS. RITA GHOSH CAN CLAIM TO HAVE PAID TO THE ASSESSEE RS.8,000/- ON 5T H JUNE, 2007 AS THE COST OF MEDICINE + CONSULTATION IN THE FREE WORKSHOP CASE OF BELLE V UE CLINIC. THE A.O. ALSO OBSERVED THAT THE ASSESSEE HAS ACKNOWLEDGED THE NUMBER OF OP ERATION CASE WAS 36 IN LIEU OF 23 IN THE WOODLANDS MEDICAL CENTRE. ACCORDINGLY, THE R ECEIPT ALSO WAS REVISED/ENHANCED FROM RS.9,07,000/- TO RS. 12,83,000/-. SO THE A.O. SAYS THAT HOW 73 CASES OF OPERATION IN WOODLANDS MEDICAL CENTRE COULD ESCAPE. THE A.O. WHO EXAMINED CASH BOOK HAS OBSERVED THAT NO CASH RECEIPT IS FOUND TO HAVE BEEN RECEIVED FROM OPERATIVE CASES OF SARASWATI DEVI SIKARIA & SUMALI DAS. FURTHER, THE A .O. OBSERVED THAT FROM THE REPLY RECEIVED FROM SOHINI PAL IT WAS SEEN THAT OPERATION CHARGE WAS AROUND RS.50,000/- TO RS.52,000/- AND WAS PAID BY CASH AND PROPER RECEIPT WAS ISSUED TO HER BUT IT IS SEEN FROM THE REVISED STATEMENT THAT THE AMOUNT IS SHOWN AT RS.42,000/-. THE A.O., THEREFORE, CONCLUDED THAT THE ADDITIONAL AMOUNT SHO WN IN THE REVISED STATEMENT UNDER BELLE VUE, WOODLAND, PARK CLINIC, BHAGIRATHI NEOTIA TOTALING TO RS.11,25,500/- IS TO BE TREATED AS INCOME THAT HAVE ESCAPED ASSESSMENT UNDE R THE ABOVE HEADS WHICH IS ADJUSTED LATER AGAINST INCOME FROM SPECTRUM CLINIC BUT THE SAME IS NOT ALLOWABLE AND HENCE RS.11,25,500/- IS TREATED AS ESCAPED INCOME B Y THE A.O. 4. THE ASSESSEE BEFORE THE LD. CIT(A) EXPLAINED BY WAY OF A DETAILED WRITTEN SUBMISSION THE FACTS OF THE CASE. THE LD. CIT(A) O BSERVED THAT THE LD. AO IN HIS ORDER HAD NOTED THAT THE ASSESSEE HAD FAILED TO RECONCILE THE DISCREPANCIES POINTED OUT BY HIM. HE FURTHER OBSERVED THAT IN THE CIRCUMSTANCES, THE FRESH RECASTED BREAK UP OF PROFESSIONAL FEES CANNOT BE RELIED ON FOR THE REASO NS MENTIONED BY THE LD. AO. FINALLY, HE OBSERVED THAT THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE CANNOT BE SAID TO BE CORRECTLY DRAWN AND ACCORDINGLY, UPHELD THE ADDITIO N MADE IN THE SUM OF RS.11,25,500/- BY THE LD. AO. AGGRIEVED, ASSESSEE I S IN APPEAL BEFORE US. 5. THE LD. AR ARGUED THAT THE ASSESSEE HAD FILED A DETAILED WRITTEN SUBMISSION BEFORE THE LD. CIT(A) VIDE PARA 1 TO 20 IN 14 PAGES AND WHEREAS THE LD. CIT(A) HAD ONLY CONSIDERED UPTO PAGE 14 OF THE SAID SUBMISSION S AS COULD BE EVIDENT FROM THE LD. CIT(A)S ORDER ITSELF. HE ARGUED THAT HAD THE LD. CIT(A) CONSIDERED THE REMAINING PARAGRAPHS, HE COULD HAVE TAKEN A REASONED DECISION IN THE MATTER. ACCORDINGLY, HE 4 ITA NO.1793/K/2013 PRAMATHES DAS MAHAPATRA, AY 2008-09 PRAYED FOR SETTING ASIDE THIS ISSUE TO THE FILE OF THE AO TO DECIDE THE ENTIRE ISSUE BY WAY OF THE WRITTEN SUBMISSIONS FILED BY HIM BEFORE THE LD. CIT(A) FOR WHICH LD. DR ALSO FAIRLY AGREED TO THE SAME. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE LD. CIT(A) HAD ONLY CON SIDERED THE PART OF THE WRITTEN SUBMISSIONS OF THE AR FILED BEFORE HIM, WHICH IS AL SO REPRODUCED IN THE APPELLATE ORDER. COPY OF THE WRITTEN SUBMISSION FILED BEFORE THE LD. CIT(A) WAS ALSO PLACED ON RECORD. WE FIND THAT THE LD. AR HAD FILED THE DETA ILS OF RECEIPTS OF THE ASSESSEE FROM EACH OF THE CLINIC AND HOSPITALS WHICH REQUIRES RE- VERIFICATION BY THE LD. AO. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT FIT AND PROPER TO SET ASIDE THIS ISSUE TO THE FILE OF THE LD. AO FOR DE NOVO ADJUDICATION, IN THE LIGHT OF THE WRITTEN SUBMISSION FILED BY THE ASSESSEE BEFORE THE LD. CIT(A). WE AL SO APPRECIATE THE FAIRNESS EXHIBITED BY THE LD. DR IN THIS REGARD AGREEING FOR THE SETTI NG ASIDE OF THIS ISSUE IN THE INTEREST OF JUSTICE AND FAIR PLAY. THE ASSESSEE IS AT LIBERTY TO ADDUCE FRESH EVIDENCE IN THIS REGARD BEFORE THE LD. AO FOR BETTER APPRECIATION OF THE FA CTS AND ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08.07.201 6 SD/- SD/- (N. V. VASUDEVAN) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED : 8 TH JULY, 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI PRAMATHES DAS MAHAPATRA, C/O S. L . KOCHAR, ADVOCATE, 86, CANNING STREET, KOL-1. 2 RESPONDENT DCIT, CIRCLE-55, KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .