Rama Prasad Medhi, Dibrugarh V. Assistant Commissioner of Income Tax, Circle-1, Dibrugarh

ITA 216/GTY/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2515 (ITAT-GUWAHATI)
• Duration Of Justice: 2 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 20-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHRAJYOTI BHATTACHARYA
• Assessee Lawyers: RAMA PRASAD MEDHI
• Keywords: Document seized; Documents seized; TDS; Set aside
• Section: 192

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, GUWAHATI E-COURT AT KOLKATA BEFORE SRI SANJAY GARG, JUDICIAL MEMBER I.T.A. NO.216/GAU/2018 ASSESSMENT YEAR: 2012-13 RAMA PRASAD MEDHI.......... APPELLANT C/O. M/S P.C. MEDHI & CO., CAS, K.C. GOGOI ROAD, KHALIHAMARI, DIBRUGARH-786001. [PAN: ADJPM3099F] VS. ACIT, CIRCLE-1, DIBRUGARH........ RESPONDENT APPEARANCES BY: SHRI RAMA PRASAD MEDHI, AR, APPEARED ON BEHALF OF THE APPELLANT. SHRI SUBHRAJYOTI BHATTACHARYA, ADDL. CIT, DR, APPEARED ON BEHALF OF THE RESPONDENT. DATE OF CONCLUDING THE HEARING : APRIL 13, 2021 DATE OF PRONOUNCING THE ORDER : JUNE 21, 2021 ORDER THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 11.06.2018 OF THE COMMISSIONER OF INCOME TAX (APPEALS), DIBRUGARH [HEREINAFTER REFERRED TO AS THE CIT(A)]. THE ASSESSEE IN THIS APPEAL HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), DIBRUGARH HAS ERRED IN CONFIRMING THE UNJUST ADDITION OF RS.7,34,060/- FOR THE A.Y. 2012-13 MADE BY THE ASSTT. COMMISSIONER OF INCOME-TAX, CIRCLE-1, DIBRUGARH U/S 147/143(3) OF THE INCOME- TAX ACT, 1961 IN HIS ORDER DATED 20/11/2017 BY AGREEING TO THE WRONG INTERPRETATION OF THE ASSESSING OFFICER IN RESPECT OF THE DEPOSITIONS MADE BY THE MANAGING DIRECTOR DR. N.K. SAHEWALA OF ADITYA DIAGNOSTICS & HOSPITALS (A UNIT OF DR.N. SAHEWALA & CO. PVT. LTD.,) DIBRUGARH. 2. FOR THAT, YOUR APPELLANT DURING THE COURSE OF THE HEARINGS BEFORE THE ACIT, CIRCLE-1, DIBRUGARH REPEATEDLY STATED THAT COPIES OF ENTRIES (AGAINST HIS NAME ) MADE IN CN: 13,11,16,17,15,10,09,08,17,18 &CN-14 THAT WERE GIVEN TO THE A/R OF THE APPELLANT AS 'UNAUTHENTICATED' (NOT HAVING ANY AUTHENTICATION THEREON BY THE HOSPITAL EMPLOYEES OR THE MANAGEMENT ) - TO WHICH NO SATISFACTORY ANSWER WAS GIVEN NOR ANY HINT ABOUT THE DEPOSITIONS IN THIS RESPECT MADE BY THE HOSPITAL MANAGEMENT GIVEN. HOWEVER, YOUR APPELLANT ONLY CAME TO THE KNOW, AFTER RECEIVING THE ORDER U/S 147/143(3) (THROUGH PARA - 4) OF THE INCOME TAX ACT, 1961 DATED 20/11/2017; AND FOUND THAT THE SAME WERE DULY AUTHENTICATED UNDER OATH BY THE MG. DIRECTOR OF THE HOSPITAL IN HIS DEPOSITIONS IN RESPECT OF THE RELEVANT QUESTION NUMBERS :14, 15 & 16- BASING ON WHICH ACIT'S HAS REOPENED THE ASSESSMENT AND PASSED THE ILLOGICAL ORDER WHICH THE CIT(A), DIBRUGARH HAS ALSO WRONGLY DISMISSED YOUR APPELLANT'S FIRST APPEAL BEFORE HIM. 2 I.T.A. NO.216/GAU/2018 ASSESSMENT YEAR: 2012-13 RAMA PRASAD MEDHI 3. FOR THAT, ONLY AFTER GOING THROUGH PARA-4 OF THE ORDER OF ASSESSMENT MENTIONED IN GROUND OF APPEAL NUMBER 2 ABOVE, IT HAS COME TO YOUR APPELLANTS KNOWLEDGE THAT ASSERTIONS IN RESPECT OF Q.NOS.14 &15 ARE THE HOSPITAL'S INTERNAL RECORDS IN RESPECT OF INCOME EARNED BY IT THROUGH THEIR OWN SALARIED DOCTORS; AND AS SUCH THOSE WERE THE INCOME OF THE HOSPITAL. MOREOVER, IT HAS BEEN CONFIRMED AGAINST Q.NO.16 THAT DOCUMENTS MARKED CN-22 TO CN-26, CN-31 TO CN-37, CN-43 TO CN-49 AND CN-51 TO CN-57 ARE: 'THESE SPECIALIST CHARGES ARE COLLECTED ON BEHALF OF DOCTORS. THESE ARE NOT INCOMES OF THE HOSPITAL BUT THE DOCTORS' CONSULTATION FEE COLLECTED FROM THEIR PATIENTS' . AND YOUR APPELLANT'S NAME WERE NOT IN THE ABOVE REFERRED DOCUMENTS RELATING TO Q.NO.16 ABOVE. 4. FOR THAT, YOUR APPELLANT WOULD AGAIN LIKE TO CONFIRM BEFORE YOUR HONOURS THAT DURING THE FINANCIAL YEAR 2011-12 (A.Y.2012-13), HE HAS NOT RECEIVED ANY CASH PAYMENT FROM THE HOSPITAL (WHICH HE ACCEPTS ONLY AT HIS OWN CHAMBER AT THANACHARIALI, DIBRUGARH) - EXCEPT THE RECEIPT OF A SALARY OF RS.2,34,000/- AND VISITING FEES OF ITS IN- HOUSE PATIENTS OF THE HOSPITAL AMOUNTING TO RS.2,54,700/- BY A/C PAYEE CHEQUES ONLY (WHICH WERE SUBJECT TO TDS U/S 192 & 194J) ; AND THE INCOME OF RS.7,34,000/- SHOWN AGAINST HIS NAME AS RECORDED IN THEIR INTERNAL RECORDS OF THE HOSPITAL IN : CN: 13, 11, 16, 17,15, 10, 09, 08, 17, 18 & CN-14 WERE EARNINGS OF THE HOSPITAL THROUGH SERVICES RENDERED BY YOUR APPELLANT AGAINST SALARY AND FEES RECEIVED FROM IN-HOUSE PATIENTS (AS OWN INCOME ) AND OUT-DOOR PATIENTS (ONCE A WEEK ON BEHALF OF THE HOSPITAL). 5. FOR THAT, YOUR APPELLANT CRAVES LEAVE OF YOUR HONOUR TO PUT ADDITIONAL GROUND/S OF APPEAL AT THE TIME OF HEARING OF THE APPEAL BEFORE TRIBUNAL. 2. THE SOLE ISSUE RAISED THROUGH THE GROUNDS OF APPEAL IS RELATING TO THE ADDITION MADE BY THE LOWER AUTHORITIES OF RS.7,34,060/-. 3. THE AFORESAID ADDITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED DOCUMENTS AS WELL AS STATEMENT OF DR. N. SAHEWALA, CHAIRMAN CUM MANAGING DIRECTOR OF HOSPITAL, ADITYA NURSING HOME, WHO STATED IN HIS STATEMENT THAT CERTAIN CASH PAYMENT WAS MADE BY THE HOSPITAL TO THE CONSULTING DOCTORS. ON THE BASIS OF THE AFORESAID SEIZED RECORDS AND STATEMENT OF DR. N. SAHEWALA, THE IMPUGNED ADDITION OF RS.7,34,060/- WAS MADE INTO THE INCOME OF THE ASSESSEE ON ACCOUNT OF INCOME RECEIVED IN CASH WHICH WAS NOT RECORDED IN THE BOOKS. HOWEVER, THE PLEA OF THE ASSESSEE/APPELLANT IS THAT THE ASSESSEE DID NOT RECEIVE ANY AMOUNT IN CASH FROM THE SAID HOSPITAL THAT THE HOSPITAL HAS TAKEN A WRONG PLEA IN THE INCOME TAX ACT THAT ALLEGED CASH PAYMENT HAS BEEN MADE. 4. BEFORE THE LOWER AUTHORITIES, THE ASSESSEE COULD NOT PROVE THAT HE HAS NOT RECEIVED ANY SUCH PAYMENT FROM THE HOSPITAL. THE ASSESSEE, HOWEVER, HAS PRODUCED A CONFIRMATION LETTER DATED 31.03.2021 UNDER THE SIGNATURE OF DR. N. SAHEWALA, CHAIRMAN 3 I.T.A. NO.216/GAU/2018 ASSESSMENT YEAR: 2012-13 RAMA PRASAD MEDHI CUM MANAGING DIRECTOR OF THE HOSPITAL. HE HAS CONFIRMED THAT THE PAYMENTS WHICH HAVE BEEN SHOWN BY THE ASSESSEE IN THE RETURN OF INCOME WERE THE ONLY PAYMENTS MADE BY THE HOSPITAL TO THE ASSESSEE. THE COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT SINCE THE MANAGING DIRECTOR OF THE HOSPITAL HAS CONFIRMED THAT ONLY THE AMOUNTS MENTIONED IN THE LETTER HAVE BEEN RECEIVED BY THE ASSESSEE, THEREFORE, THE ASSESSEE HAS DISCHARGED HIS BURDEN THAT HE HAS NOT RECEIVED ANY OTHER AMOUNT IN CASH. THE COPY OF THE LETTER DATED 31.03.2021 IS REPRODUCED HEREIN FOR READY REFERENCE: 4 I.T.A. NO.216/GAU/2018 ASSESSMENT YEAR: 2012-13 RAMA PRASAD MEDHI 5. IN REBUTTAL, THE LD. DR HAS SUBMITTED THAT THE DOCUMENTS PRODUCED ON FILE HAVE NOT BEEN EXAMINED EARLIER BY THE ASSESSING OFFICER AND UNDER THIS CIRCUMSTANCES, THE MATTER IS REQUIRED TO BE RE-EXAMINED BY THE ASSESSING OFFICER. 6. I HAVE CONSIDERED THE RIVAL CONTENTIONS. SINCE THE LETTER/DOCUMENT PRODUCED ON THE FILE WAS NOT BEFORE THE LOWER AUTHORITIES, THEREFORE, IN MY VIEW, IN THE INTEREST OF JUSTICE, THE ABOVE-STATED CONFIRMATION/DOCUMENT PRODUCED BY THE ASSESSEE IS REQUIRED TO BE EXAMINED BY THE ASSESSING OFFICER. THEREFORE, THE IMPUGNED ADDITION MADE BY THE ASSESSING OFFICER IS SET ASIDE AND THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO CONSIDER AND EXAMINE THE CONFIRMATION/EVIDENCES FURNISHED BY THE ASSESSEE INCLUDING THE LETTER DATED 31.03.2021 FROM THE MANAGING DIRECTOR OF THE HOSPITAL AND THEREAFTER, TO EXAMINE THE ISSUE AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 21 ST JUNE, 2021. SD/- [ SANJAY GARG ] JUDICIAL MEMBER DATED : 21.06.2021 RS COPY OF THE ORDER FORWARDED TO: 1. RAMA PRASAD MEDHI 2. ACIT, CIRCLE-1, DIBRUGARH 3. CIT(A)- 4. CIT- , 5. CIT(DR), //TRUE COPY// BY ORDER SR. PS, H.O/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .