Biswas Medical Centre, Kolkata V. DCIT, Circle - 22, Kolkata, Kolkata

ITA 2240/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1582 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 27-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Assessee Lawyers: MANOJ DUTTA

Judgement Text

1 ITA NO. 2240/KOL/2017 BISWAS MEDICAL CENTRE, AY 2013-14 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VA RKEY, JM] I.T.A. NO. 2240/KOL/2017 ASSESSMENT YEAR: 2013-14 BISWAS MEDICAL CENTRE (PAN: AAEFB8571F) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-22, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 14.11.2018 DATE OF PRONOUNCEMENT 22.11.2018 FOR THE APPELLANT SHRI MANOJ DUTTA, FCA FOR THE RESPONDENT SHRI ROBIN CHOUDHURY, ADDL. CIT , SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-6, KOLKATA DATED 20.09.2017 FOR AY 2013-14. 2. THE GROUNDS OF APPEAL PREFERRED BY THE ASSESSEE ARE AS UNDER: 1. THAT THE CIT(A) TOTALLY ERRED IN CONCLUDING T HAT THE DOCTORS SALARY OF RS.10,98,521/- AS SHOWN IN THE RECONCILIATION STATEMENT DID NOT TALLY WITH THE FIGURE OF RS.19,85,691/- UNDER THE HEAD SALARY IN THE P&L A/C FOR THE YEAR WITHOUT G OING THROUGH THE SUMS AND SUBSTANCE OF THE CASE AND FAILED TO APPRECIATE THAT TDS RS.4,17, 460/- WAS NOT INCLUDED IN THE DOCTORS SALARY AS EXPLAINED IN THE RECONCILIATION STATEMENT AND CAME TO AN ERRONEOUS FINDING WHICH CANNOT BE SUSTAINED AND HAS TO BE CANCELLED. 2. THAT THE CIT(A) FAILED TO APPRECIATE THAT THE G ROSS SALARY FIGURE OF RS.19,85,691/- IS A CONSOLIDATED FIGURE CONSISTING OF DOCTORS SALARY R S.10,98,521/- AND OF THE REGULAR EMPLOYEES/STAFF SALARY RS.8,87,170/- AND ARRIVED AT AN INCORRECT AND WRONG CONCLUSION WITHOUT APPLICATION OF JUDICIOUS MIND WHICH CANNOT BE ACCEPTED AND HAS TO BE DELETED. 3. BRIEFLY STATED FACTS ARE THAT THE AO DURING THE ASSESSMENT PROCEEDING NOTED THAT THE ASSESSEE HAS DEBITED IN ITS P&L ACCOUNT TWICE AN AM OUNT OF RS.4,17,460/- UNDER THE HEAD VAT. ACCORDING TO AO, SINCE IT IS THE SAME AMOUN T OF EXPENSES UNDER THE SAME HEAD, THE ASSESSEE COULD NOT HAVE DEBITED IT TWICE AND, THERE FORE, THE AO DISALLOWED RS.4,17,460/- AND 2 ITA NO. 2240/KOL/2017 BISWAS MEDICAL CENTRE, AY 2013-14 ADDED IT TO THE TOTAL INCOME OF THE ASSESSEE. AGGR IEVED ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) WHO, CONFIRMED THE ACTION OF THE AO. AG GRIEVED, ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT ASSESSEE RUNS AN EYE HOSPITAL N AMELY, M/S. SILVERLINE EYE HOSPITAL WHICH CONDUCTS EYE TREATMENT AND SURGERY. THE AO T AKING NOTE THAT THE ASSESSEE HAS CLAIMED TWICE EXPENDITURE OF RS.4,17,460/- UNDER TH E HEADS SALES TAX VAT AND ANOTHER UNDER THE HEAD VAT, SO HAS DISALLOWED ONE CLAIM O UT OF TWO I.E. RS.4,17,460/-. ON APPEAL BEFORE THE LD. CIT(A) THE ASSESSEE CONTENDED THAT I N THE YEAR UNDER CONSIDERATION BY MISTAKE THE SUMS UNDER THE HEAD VAT WAS ENTERED T WICE, BUT THE FACT REMAINS AN IDENTICAL AMOUNT OF RS.4,17,460/- WAS DEBITED ON ACCOUNT OF TDS. ACCORDING TO THE ASSESSEE, ONE ITEM OF RS.4,17,460/- WAS ON ACCOUNT OF VAT AND T HE OTHER WAS THE AMOUNT DEBITED ON ACCOUNT OF TDS. ACCORDING TO THE ASSESSEE, IT WAS EXPLAINED BEFORE THE AO ON 26.02.2016 THAT THE TDS WAS FROM THE DOCTORS FEE AND OUGHT TO HAVE BEEN CLUBBED WITH THE DOCTORS FEE BY JOURNAL ENTRY BUT WAS INADVERTENTLY SHOWN AS VA T TWICE. IT WAS CONTENDED BEFORE THE LD. CIT(A) THAT THE ASSESSEE HAD RECONCILED ALL THE TDS PARTICULARS WITH REFERENCE TO THE QUARTERLY TDS RETURN COPIES FILED WITH THE DCIT ON 19.05.2015. HOWEVER, ACCORDING TO THE ASSESSEE, THE AO DID NOT GIVE ANY CREDENCE TO THE R ECONCILIATION PLACED BEFORE HIM AND MADE THE ADDITION. WE NOTE THAT THE LD. CIT(A) HAS CONFIRMED THE ADDITION BY HOLDING AS UNDER: 6.2. I HAVE EXAMINED THE CONTENTION OF THE A/R OF THE APPELLANT AND ALSO EXAMINED THE ASSESSMENT ORDER. THE A/R OF THE APPELLANT HAS FIL ED BEFORE ME A COPY OF AUDITED P&L A/C. OF THE APPELLANT. IN THE P&L A/C. I SEE THAT CLEARLY THERE ARE TWO ENTRIES OF RS.4,17,460/-, ONCE UNDER THE HEAD SALES TAX VAT AND ONCE AGAIN UNDER T HE HEAD VAT. THE CONTENTION OF THE A/R IS THAT THIS AMOUNT REPRESENTS, DOCTORS FEES AND S HOULD HAVE BEEN CLUBBED WITH DOCTORSFEE BUT WAS INADVERTENTLY SHOWN AS VAT. TO SUPPORT HIS CONTENTION, THE A/R HAS FILED THE SUMMARY OF DOCTORS FEE PAID AS PER THE TDS RETURN AND THE STATES AMOUNT OF DOCTORS FEE IS RS.66,00,746/-. HOWEVER, IN THE P&L A/C DOCTORS F EE IS REFLECTED ONLY AT RS.45,45,776/-. HOWEVER, THE DOCTOR FEE AS PER THE TDS AND AS PER T HE P&L A/C DO NOT TALLY. HOWEVER, THE A/R OF THE APPELLANT HAS EXPLAINED AS BELOW: DIRECT DOCTORS FEES 45,45,776 PROF. FEES 5,38,989 SALARY 10,98,521 VAT (ENTERED TWICE TO BE CORRECTED) 66,00,746 6.3. I HAVE CROSS VERIFIED THESE FIGURES WITH THE P &L A/C. OF THE APPELLANT AND I FIND THE CLAIM OF THE APPELLANT AS NOT JUSTIFIED. IN THE RE CONCILIATION AS GIVEN ABOVE, SALARY HAS BEEN 3 ITA NO. 2240/KOL/2017 BISWAS MEDICAL CENTRE, AY 2013-14 SHOWN AT RS.10,98,521/-, WHEREAS THE SAME IN THE P& L A/C IS STATED TO BE RS.19,85,691/-. THEREFORE, IF WE GO BY THE FIGURES GIVEN IN THE P&L A/C, IT IS STILL NOT CLEAR THAT VAT OF RS.4,17,460/- IS INCLUDED IN THE DOCTORS FEE OF RS .45,45,776/-. I WILL, THEREFORE, UPHOLD THE ACTION OF THE AO AND CONFIRM ADDITION OF RS.4,17,46 0/-. GROUND NO. 4 OF THE APPEAL IS DISMISSED. 5. BEFORE US THE LD. AR CONTENDED THAT THE LD. CIT( A) FOUND FAULT WITH THE RECONCILIATION SUBMITTED BY THE ASSESSEE BECAUSE HE FAILED TO APPRECIATE THAT THE GROSS SALARY FIGURE OF HOSPITAL IS RS.19,85,691/- WHICH IS A CON SOLIDATED FIGURE AND WHICH SUM INCLUDES DOCTORS SALARY OF RS.10,98,521/- AND THAT OF THE R EGULAR EMPLOYEES/STAFF SALARY OF RS.8,87,170/- AND, THEREFORE, ACCORDING TO LD. AR, THE LD. CIT(A) ERRED IN CONCLUDING THAT DOCTORS SALARY WAS NOT RS.10,98,521/- AS SHOWN IN THE RECONCILIATION STATEMENT. ACCORDING TO THE ASSESSEE, SINCE THE LD. CIT(A) ERRED IN CONC LUDING THAT THE DOCTORS SALARY OF RS.10,98,521/- AS SHOWN IN THE RECONCILIATION STATE MENT SINCE THIS FIGURE DID NOT TALLY WITH THE FIGURE OF RS.19,85,691/- UNDER THE HEAD SALARY IN THE P&L ACCOUNT DID NOT ACCEPT THE RECONCILIATION SUBMITTED BY THE ASSESSEE TO JUSTIFY THE CLAIM OF TDS AMOUNT DEDUCTED OF RS.4,17,460/- WHICH, ACCORDING TO ASSESSEE, WAS NOT INCLUDED IN THE DOCTORS SALARY. ACCORDING TO US, THE LD. CIT(A) HAS ERRED IN APPRE CIATING THE CONTENTION OF THE ASSESSEE, SO THE RECONCILIATION STATEMENT AS GIVEN BEFORE THE LD . CIT(A) NEEDS TO BE VERIFIED WITH THE CONTENTION/EXPLANATION GIVEN BY THE ASSESSEE TO JUS TIFY THE ANOMALY/MISTAKE OF THE CLAIM MADE TWICE AND IF THE ASSESSEES CLAIM IS CORRECT T HEN IT HAS TO BE ALLOWED. IF THE ASSESSEE HAS ENTERED TWICE THE FIGURE BY MISTAKE UNDER THE H EAD VAT AND IF THE ASSESSEES EXPLANATION THAT THE SAME WAS DOCTORS SALARY TDS A ND OUGHT TO HAVE BEEN CLUBBED WITH DOCTORS FEE AND IF THE RECONCILIATION GIVEN BY THE ASSESSEE IS CORRECT AS CONTENDED BEFORE US, THEN THE AO MAY VERIFY AND MAY ALLOW THE CLAIM IN A CCORDANCE TO LAW. THEREFORE, THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS REMIT TED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION AS DISCUSSED ABOVE AFTER HEARING THE A SSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 22/11/201 8 SD/- SD/- (J. SUDHAKAR REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22ND NOVEMBER, 2018 4 ITA NO. 2240/KOL/2017 BISWAS MEDICAL CENTRE, AY 2013-14 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT BISWAS MEDICAL CENTRE, 396, PRINCE ANWA R SHAH ROAD, KOLKATA-700 045. 2 RESPONDENT DCIT, CIRCLE-22, KOLKATA. 3 4 5 CIT(A)-6, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY