Dr.L.Srinivasan, CHENNAI V. ACIT, CHENNAI

ITA 2788/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90291 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 11-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PATHLAVATH PEERYA
• Assessee Lawyers: N DEVANATHAN
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NOS.2785, 2786, 2787 & 2788/MDS/2014 ' (' / ASSESSMENT YEARS : 2003-04, 2005-06, 2007-08 & 2008-09 DR. L. SRINIVASAN, NO.18, ELEVENTH CROSS STREET, MAHALAKSHMI NAGAR, ADAMBAKKAM, CHENNAI - 600 088. PAN : AAHPS 9160 L V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE IV(3), CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SH. N. DEVANATHAN, ADVOCATE ,-*+ . / / RESPONDENT BY : SH. PATHLAVATH PEERYA, CIT 0 . 1$ / DATE OF HEARING : 09.04.2015 2!( . 1$ / DATE OF PRONOUNCEMENT : 17.04.2015 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: ALL THE APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS), 2 I.T.A. NOS.2785 TO 2788/MDS/14 CENTRAL-I, CHENNAI, DATED 25.08.2014, CONFIRMING TH E PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 , FOR THE ASSESSMENT YEARS 2003-04, 2005-06, 2007-08 AND 2008 -09. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN ALL THE AP PEALS, WE HEARD THE SAME TOGETHER AND DISPOSE OF THE SAME BY THIS C OMMON ORDER. 2. SH. N. DEVANATHAN, THE LD.COUNSEL FOR THE ASSESS EE, SUBMITTED THAT WHEN THE QUANTUM APPEAL CAME BEFORE THIS TRIBUNAL IN I.T.A. NOS.2012 TO 2017/MDS/2012, THIS TRIBUNAL ESTIMATED THE INCOME. THE ISSUE OF TRANSFER OF VALIDITY OF PROCE EDINGS UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (IN S HORT 'THE ACT') WAS REMANDED BACK TO THE FILE OF THE ASSESSING OFFI CER. ACCORDING TO LD. COUNSEL, NOW THE MATTER IS PENDING BEFORE TH E CIT(APPEALS) WITH REGARD TO INITIATION OF JURISDICTION UNDER SEC TION 153C OF THE ACT. IN CASE THE CIT(APPEALS) FINDS THAT THE VERY INITIA TION OF PROCEEDINGS UNDER SECTION 153C OF THE ACT IS ILLEGAL, THEN THE IMPUGNED ADDITION MADE BY THE ASSESSING OFFICER AS WELL AS THE PENALT Y WOULD STAND DELETED. 3. ON THE CONTRARY, SH. PATHLAVATH PEERYA, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THIS TR IBUNAL HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R BY ESTIMATING THE INCOME. HOWEVER, WITH REGARD TO VALIDITY OF I NITIATION OF 3 I.T.A. NOS.2785 TO 2788/MDS/14 PROCEEDINGS UNDER SECTION 153C OF THE ACT, WITHOUT RECORDING SATISFACTION, REMANDED BACK TO THE FILE OF THE ASSE SSING OFFICER. THE LD. D.R. SUBMITTED THAT ONCE THE QUANTUM ADDITION W AS CONFIRMED BY ESTIMATING THE INCOME OF THE ASSESSEE, IT IS DEE MED THAT THE PROCEEDINGS INITIATED BY THE ASSESSING OFFICER IS H ELD TO BE VALID. THEREFORE, NO PURPOSE WOULD BE SERVED BY REMITTING BACK THE MATTER TO THE CIT(APPEALS) IN RESPECT OF VALIDITY OF PROCE EDINGS UNDER SECTION 153C OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THIS TRIB UNAL IN THE QUANTUM APPEAL ESTIMATED THE EXPENSES AT ` 12,000/- PER CASE AS REASONABLE. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE OBSERVATION MADE BY THIS TRIBUNAL AT PAGE 24 OF ITS ORDER DATED 18.04.2013, AS FOLLOWS:- THEREFORE, IN OUR OPINION CONTENTION OF ASSESSEES T HAT ASSISTANTS HAD TO BE PAID , WHICH INCLUDED JUNIOR DOCTORS AND STAFF NURSES, HAS CONSIDERABLE STRENGTH. LD. CIT(A) ESTIMATED SUCH EXPENSES AT ` 9,000/- PER CASE. AMOUNT OF RS. 2,000/- ESTIMATED BY THE LD. CIT(A) AS PAYMENT TO TWO STAFF NURSES PER OPERATION IS ON THE LOWER SIDE. IN THE FACTS AN D CIRCUMSTANCES, WE ARE OF THE OPINION THAT EXPENSE O F RS.12,000/- PER CASE CAN BE CONSIDERED REASONABLE. ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE ON THIS ASPE CT AND THE ASSESSING OFFICER IS DIRECTED TO RECOMPUTE THE INCO ME OF RESPECTIVE ASSESSEES CONSIDERING THE EXPENSE FOR EA CH TRANSPLANT AT RS.12,000/-. 4 I.T.A. NOS.2785 TO 2788/MDS/14 5. HOWEVER, COMING TO THE VALIDITY OF INITIATION OF PROCEEDINGS UNDER SECTION 153C OF THE ACT, THE MATTER WAS REMAN DED BACK TO THE CIT(APPEALS). THE TRIBUNAL HAS RECORDED THE FI NDING AS FOLLOWS:- 25. COMING TO ONE OF THE GROUNDS IN THE CROSS OBJE CTIONS TAKEN BY DR.L.SRINIVASAN WHICH ASSAILS THE VALIDITY OF THE PROCEEDINGS INITIATED UNDER SECTION 153C OF THE ACT , WE DO FIND THAT THE ASSESSEE HAD FILED A SUPPLEMENTARY WR ITTEN SUBMISSION BEFORE THE CIT(A) IN WHICH THE FOLLOWING APPEARS: WE WISH TO RAISE AN ADDITIONAL GROUND IN THE APPEA L FILED AGAINST THE ASSESSMENT COMPLETED UNDER SECTION 143( 3) R.W.S.153A/153C THAT THE A.O. HAS NOT RECORDED HIS SATISFACTION IN THE APPELLANTS CASE BEFORE INITIAT ING PROCEEDINGS UNDER SECTION 143(3) R.W.S.153A/153C FO R THE ASSESSMENT YEAR 2003-04. THE RECORDING OF SATISFAC TION BY THE ASSESSING OFFICER IS A SINE QUA NON FOR INITIAT ING PROCEEDINGS UNDER SECTION 153C OF THE ACT. LD. CIT(A) HAS NOT DEALT WITH THIS ISSUE AT ALL. IN OUR OPINION, CIT(A) WAS DUTY BOUND TO DISPOSE OF SUCH ADDITIONAL GROUND RAISED BY THE ASSESSEE SINCE IT RAISED A QUESTION O F LAW, WHICH WENT TO THE ROOT OF THE MATTER. WE THEREFORE REMIT THIS ISSUE BACK TO THE FILE OF THE CIT(A) FOR CONSIDERA TION AND DISPOSAL IN ACCORDANCE WITH LAW. CROSS OBJECTION FILED BY ASSESSEE DR.L.SRINIVASAN, IS THUS ALLOWED FOR STATI STICAL PURPOSES. SINCE THIS IS THE ORDER OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL, WE DO NOT LIKE TO EXPRESS ANY OPINION ON THE CONTENTIO N RAISED BY THE LD. D.R. WITH REGARD TO VALIDITY OF PROCEEDINGS DEE MED TO BE UPHELD. HOWEVER, IN THE QUANTUM APPEAL, THIS TRIBUNAL ESTIM ATED THE ADDITION MADE BY THE ASSESSING OFFICER. THEREFORE, THIS MODIFICATION MADE BY THIS TRIBUNAL IN ESTIMATING TH E INCOME HAS TO BE CONSIDERED BY THE ASSESSING OFFICER FOR RE-COMPU TING THE 5 I.T.A. NOS.2785 TO 2788/MDS/14 PENALTY. IN OTHER WORDS, THE ASSESSING OFFICER HAS TO RE-COMPUTE THE INCOME ESTIMATED BY THE TRIBUNAL BEFORE LEVYING THE PENALTY. ACCORDINGLY, ORDERS OF THE LOWER AUTHORITIES ARE SE T ASIDE AND THE ISSUE OF PENALTY IS REMANDED BACK TO THE FILE OF TH E ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RECONSIDER TH E WHOLE ISSUE AFRESH WITH REGARD TO LEVY OF PENALTY ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD, INCLUDING THE ORDER OF THE TRI BUNAL DATED 18.04.2013 IN THE QUANTUM APPEAL AND THEREAFTER DEC IDE THE ISSUE AFRESH AFTER GIVING REASONABLE OPPORTUNITY TO THE A SSESSEE. 6. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 17 TH OF APRIL, 2015 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) (. !' ) ( . . . ) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 17 TH APRIL, 2015. KRI. . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A), CENTRAL-I, CHENNAI 4. 0 81 /CIT, CENTRAL-I, CHENNAI 5. 69 ,1 /DR 6. :' ; /GF.