Sudhakar Choubey, Dibrugarh V. Assistant Commissioner of Income Tax, Circle-1, Dibrugarh

ITA 228/GTY/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1427 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 10-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN JCIT SRDR
• Assessee Lawyers: BINOD JAIN
• Keywords: Search and seizure; Document seized; Documents seized
• Section: 143(3); 13; 147; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH E COURT AT KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L.SAINI, ACCOUNTANT MEMBER ITA NO. 228 / GAU / 2018 ASSESSMENT YEAR :2012-13 SUDHAKAR CHOUBEY BANSBARI, DIBRUGARH- 786001 [ PAN NO.AEKPC 3250 N ] V/S . ACIT, CIRCLE-1, DIBRUGARH /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI BINOD JAIN, FCA /BY RESPONDENT SHRI M.C OMI NINGSHEN, JCIT SR-DR /DATE OF HEARING 09-12-2019 /DATE OF PRONOUNCEMENT 13-12-2019 / O R D E R PER BEMCH:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-DIBRUGARHS OR DER DATED 13.06.2018 PASSED IN CASE NO. CIT(A), DIBRUGARH/10040/2017-18 INVOLVING PROCEEDINGS U/S 147 R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE ASSESSEES MULTIPLE SUBSTANTIVE GROUNDS RAIS ES IN THE INSTANT APPEAL INDICATE THAT HE HAS CHALLENGED LEGALITY OF RE-OPENING / RE-ASSESSMENT AS WELL AS BOTH THE LOWER AUTHORITIES ACTION MAKIN G ADDITION OF ALLEGED UNDISCLOSED RECEIPT OF 5,59,350/- FROM M/S ADITYA HOSPITAL OF MENTAL. LEARNED COUNSEL IS FAIR ENOUGH IN NOT PRESSING FOR THE ASSESSEES LEGAL ITA NO.228/GAU/2018 ASSESSM ENT YEAR: 2012-13 SUDHAKAR CHOUBEY VS. ACIT, CIR-1, DIBRUGARH PAGE 2 GROUND. WE ARE LEFT WITH THE LATTER ISSUE OF CORREC TNESS OF THE IMPUGNED ADDITION ON MERITS ONLY. 3. BOTH THE LEARNED REPRESENTATIVES TAKE US TO CIT( A)S DETAILED DISCUSSION AFFIRMING THE ASSESSING OFFICERS ACTION MAKING THE IMPUGNED ADDITION READING AS FOLLOWS:- 6. GROUND NO.6 : THE GROUND IS AGAINST ADDITION OF RS.5,59,350/-- 6.1 DURING RELEVANT PREVIOUS YEAR, ASSESSEE WAS A N EUROLOGICAL SPECIALIST HAVING HIS OWN PRIVATE PRACTICE AND WAS ALSO VISITING DOCTOR T O SOME NURSING HOMES OF DIBRUGARH. DURING THE COURSE OF SEARCH AND SEIZURE CONDUCTED IN CASE OF DR. N. SAHEWALA AND CO. PVT. LEARNED., RECORDS RELATING TO PAYMENT OF PATIENTS FEES TO SPECIALIST DOCTORS WERE FOUND AND SEIZED. SEIZED RE CORDS VIZ., CN-8, CN-15, CN-16, CN-10, CN-13 AND CN-17, ACCORDING TO THE AO, CONTAI NED CASH PAYMENTS MADE TO ASSESSEE AMOUNTING TO RS.5,59,350/-. STATEMENT OFF DR. N. SAHEWEALLA WAS TAKEN DURING SEARCH AND POST-SEARCH INQUIRY/. QUESTION NO S. 14, 15, AND 16 ASKED TO HIM AND ANSWERS GIVEN BY HIM ARE EXTRACTED AS UNDER:- QUESTION. NO.14 . I AM SHOWING YOU PAGE 2 AND 2A, PAGE 5 AND 5A, 7 & 7A, 15 AND 15A, 12 & 12A, 16 AND 16A, 17, 19 AND 19A, 2 1 AND 21A OF CN-19 WHICH CONTAIN NAMES OF DOCTORS AND AMOUNTS WRITTEN MONTH-WISE? KINDLY EXPLAIN? ANS: THESE ARE MEANT FOR ASCERTAINING CONSULTATION FEES TO SPECIALIST DOCTORS, COLLECTED BY HOSPITAL AND PATIENTS. QUESTION. NO.15 . I AM SHOWING CN-13, CN-11, CN-16, CN-17, CN-15, C N- 10, CN-09, CN-08, CN-12, CN-18 AND CN-14 WHICH ARE REGISTERS CONTAINING NAMES OF DOCTORS, PATIENTS, AMOUNTS ETC. PLEASE EXP LAIN? ANS : REPLY AS SAME ABOVE. QUESTION NO .16. I AM SHOWING YOU SEIZED DOCUMENTS MARKED CN-22 TO CN- 26, CN-31 TO CN-37, CN-43 TO CN-49 AND CN-51 TO CN- 57 WHICH ARE BILL BOOKS. IT IS SEEN THAT THE SPECIALIST CHARGES ARE N OT ENTERED IN THE MAIN BILL. KINDLY EXPLAIN? ANS : THESE SPECIALIST CHARGES ARE COLLECTED ON BEHALF OF DOCTORS. THESE ARE NOT INCOMES OF THE HOSPITAL BUT THE DOCTORS CONSUL TATION FEE COLLECTED FROM THEIR PATIENTS. FROM CONTENTS OF SEIZED DOCUMENTS AS WELL AS ABOVE STATEMENT, THE AO CAME TO A FINDING THAT THE HOSPITAL WAS COLLECTING FEES FROM PATIENT AND THE SAME WERE PASSED ON TO SPECIALIST DOCTORS. ASSESSEE WAS ALSO SUMMONED U/S. 131 OF THE ACT AND HIS STATEMENT WAS RECORDED ON 22.06.2012. IN HIS STATEMENT, ASSESSEE ADMITTED THAT REGULAR BOOKS OF ACCOUNT WERE NOT MAINTAINED BY HIM. HE ALSO STATED THE FACT S OF HIM HAVING HIS CHAMBER AT ADITYA HOSPITAL (A UNIT OF DR. N. SAHEWEALLA & CO. PVT. LTD.). HE FURTHER STATED THAT ALL PAYMENTS WERE RECEIVED BY HIM IN CHEQUE EXCEPT FOR OPD CONSULTATION FEES WHICH WERE RECEIVED IN CASH. HE ALSO ADMITTED THAT ALMOST ALL HIS CASH INCOME, ROUGHLY BUT ITA NO.228/GAU/2018 ASSESSM ENT YEAR: 2012-13 SUDHAKAR CHOUBEY VS. ACIT, CIR-1, DIBRUGARH PAGE 3 NOT EXACTLY, WAS SHOWN IN HIS RETURN OF INCOME. IN COURSE OF ASSESSMENT PROCEEDING, THE AO ASKED ASSESSEE TO EXPLAIN THE RECEIPT OF RS. 5,59,350/-. IT WAS STATED BEFORE TH4E AO THAT TO THE BEST OF HIS KNOWLEDGE, WHATEVER MONEY RECEIVED BY HIM FROM SAHEWALLA & CO. WAS TRULY SHOWN IN THE RETURN OF IN COME. HOWEVER, IT WAS ADMITTED THAT DISCREPANCY EXISTED WHICH COULD NOT BE EXPLAIN ED BY WAY OF DOCUMENT OR DAILY RECORD STATEMENT. ACCORDING TO THE AO, THE SEIZED R ECORDS, VIZ., CN-8, CN-9, CN-10, CN-13, CN-16 AND CN-17 CONTAINED NAMES OF PATIENT, DOCTORS NAME AND AMOUNT PAID. AO ALSO STATED THAT PER ORDER SHEET NOTING DA TED 24.10.2017, THE ASSESSEE AGREED WITH FACT OF ESCAPEMENT OF INCOME TO THE TUN E OF RS.5,59,350/-. THE SAME WAS ADDED TO ASSESSEES INCOME. 6.2 SUBMISSIONS GIVEN TO THE AO WERE PRODUCED BEFOR E ME. IT WAS STATED BY THE AR THAT THE AO HAD NO PROOF OF CONCEALMENT OF ANY INCO ME. AR STATED THAT THE SUM RECEIVED FROM ADIDTYA HOSPITAL WAS ALREADY INCLUDED IN RETURN FILED BY HIM. ACCORDING TO AR, ASSESSEE DISCLOSED FOLLOWING RECEIPTS IN ITS RETURN OF INCOME: I) INTAS PHARMACEUTICALS LTD. RS. 50,000/- II) AABBORT PVT. LTD. RS. 30,000/- III) BRAHMAPUTRA DIAGNOSTICS & HOSPITALS LTD. RS. 23,000/- IV) DR. SAHEWALL & CO. PVT. LTD. RS.3,43,000/- V) GREEN VALLEY DIAGNOSTICS & HOSPITAL PVT. LTD. R S.6,84,200/- VI) SRISTI HOSPITAL & RESEARCH CENTRE PVT. LTD. RS . 17,000/- VII) FROM PRIVATE PRACTICE RS.9,69,922/ - ACCORDING TO THE AR, RECEIPT OF RS.5,59,350/- WAS A LREADY INCLUDED N THE ABOVE SUM OF RS.9,69,922/-. AS SUCH, IT WAS ARGUED THERE WAS NO BASIS OF ANY FURTHER ADDITION. 6.3 I HAVE CAREFULLY CONSIDERED THE MATER. ASSESSEE DID NOT MAINTAINED PRESCRIBED BOOKS OF ACCOUNT. HE HAD STATE IN HIS STATEMENT IN OATH THAT PAYMENT FORM ADITYA HOSPITAL WAS RECEIVED IN CHEQUE. HE HAD DISCLOSED R ECEIPT OF RS.3,43,700/- FROM THE SAID HOSPITAL. BUT THE SEIZED RECORDS, PER AO, SHOW ED PAYMENT IN CASH TO THE ASSESSEE AMOUNTING TO RS.5,59,350/-. THIS PAYMENT H AD NOT BEEN PROPERLY EXPLAINED BY ASSESSEE. ASSESSEE DID NOT HAVE ANY RECORD TO LI NK THE PRIVATE PRACTICE INCOME OF RS.9,69,922/-. WITH THE CASH RECEIPT OF RS.5,59,350 /- FORM DR. N. SAHEWALLA & CO. PVT. LTD. ASSESSEE HIMSELF HAD ADMITTED THAT HE HA D DISCLOSED ONLY ALMOST ALL HIS RECEIPT IN THE RETURN OF INCOME. THIS CLEARLY SHOWS THAT THE WHOLE INCOME WAS NOT DISCLOSED BY HIM. SINCE ALL THE RECEIPT WAS NOT DIS CLOSE BY HIM, THE ARGUMENT THAT RECEIPT OF RS.5,59,350/- WAS INCLUDED IN THE 9,69,9 22/- CANNOT BE ACCEPTED. THE AO ALSO MENTIONED THAT ASSESSEE AGREED TO HAVE CONCEAL ED RECEIPT OF RS.9,59,350/-. IN VIEW OF ABOVE DISCUSSION, ACTION OF THE AO IS CONFIRMED . GROUND NO. 6 IS DISMISSED . 4. WE HAVE HEARD RIVAL CONTENTIONS AGAINST AND IN S UPPORT OF IMPUGNED ADDITION. THE ASSESSEES ONLY CASE DURING THE COURS E OF HEARING IS THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAVE ERRED IN MAKING THE IMPUGNED ADDITION DESPITE THE FACT THAT THE VERY SUM FORMS P ART OF PRIVATE PRACTICE DISCLOSURE INCOME OF 9,69,922/- HEREINABOVE. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THAT THIS CLINCHING ASPECT REQUIRE FACTUAL VERIFICATION IN VIEW OF ALL THE CORRESPONDING DETAI LS FORMING PART OF THE CASE ITA NO.228/GAU/2018 ASSESSM ENT YEAR: 2012-13 SUDHAKAR CHOUBEY VS. ACIT, CIR-1, DIBRUGARH PAGE 4 RECORD. WE THEREFORE RESTORE THE INSTANT SOLE ISSUE BACK TO THE ASSESSING OFFICER FOR AFRESH ADJUDICATION AS PER LAW WITHIN T HREE EFFECTIVE OPPORTUNITIES OF HEARING. THE ASSESSEE SHALL APPEAR HIMSELF THROUGH HIS AUTHORIZED REPRESENTATIVE BEFORE THE ASSESSING OFFICER ON OR B EFORE 30.04.2020 ALONG WITH A COPY OF THE REMAND DIRECTIONS. NECESSARY COM PUTATION TO FOLLOWS AS PER LAW AFTER FACTUAL VERIFICATION. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED FOR STA TISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 13/ 12/2019 SD/- SD/- (A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) JUDICIAL MEMBER) KOLKATA, *DKP - 13 / 12 /201 9 / / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SUDHAKAR CHOUBEY, BANSBARI, DIBRUGARH-78 6001 2. /RESPONDENT-ACIT, CIR-1, DIBRUGARH 3. * - / CONCERNED CIT GUAHATI 4. -- / CIT (A) GUAHATI 5. 0 33*, *, / DR, ITAT, GUAHATI 6. 7 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO *,