Deepak Lamech, CHENNAI V. ACIT, CHENNAI

ITA 2801/CHNY/2014

• Counselvise Citation: 280121714 RSA 2014
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 29-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 11-11-2014
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Income from undisclosed sources; Difference of opinion; Corroborative evidences

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . ' # , $ #% BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER . /ITA NOS. 2797, 2798, 2799, 2800 & 2801/MDS/2014 / ASSESSMENT YEARS : 2003-04 TO 2007-08 DR. DEEPAK LAMECH, NO.57, NEW NO.76, SPUR TANK ROAD, CHETPET, CHENNAI 600 031. PAN AAACT1261F ( /APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-IV(3), CHENNAI - 34. RESPONDENT) / APPELLANT BY : SHRI R.VIJAYARAGHAVAN, ADVOCATE / RESPONDENT BY : SHRI P. RADHAKRISHNAN, JCIT ! / DATE OF HEARING : 29.10.2015 '# ! / DATE OF PRONOUNCEMENT : 20.11.2015 & / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAIN ST DIFFERENT ORDERS OF THE COMMISSIONER OF INCOME-TAX( APPEALS) DATED 26.8.2014 FOR THE ABOVE ASSESSMENT YEARS. SI NCE, THE - - ITA 2797, 2798/14 ETC. 2 ISSUE INVOLVED IN THESE APPEALS IS COMMON, THESE AR E CLUBBED TOGETHER, HEARD TOGETHER AND DISPOSED OFF BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ONLY COMMON ISSUE IN THESE APPEALS IS WITH R EGARD TO LEVY OF PENALTY U/S. 271(1)(C) OF THE I.T. ACT, 196 1. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A SURGEON IN PROFESSION. FOR THESE ASSESSMENT YEARS, THE ASSESSEE FILED THE RETURN OF INCOME OFFERING FOLLOW ING AMOUNT AS PROFESSIONAL INCOME : A.Y. PROFESSIONAL INCOME 2003-04 ` 9,47,024/- 2004-05 ` 8,70,534/- 2005-06 ` 8,69,764/- 2006-07 ` 7,83,328/- 2007-08 ` 14,63,365/- 3.1 THE ASSESSEE HAD CARRIED OUT SURGERY FOR THE DO NORS OF KIDNEY AND CORRESPONDINGLY DR. L. SRINIVASAN CAR RIED OUT SURGERY ON THE RECIPIENTS OF KIDNEY. THERE WAS A S EARCH CONDUCTED U/S.132 ON 10.12.2007 IN THE CASE OF DR. P. RAVICHANDRAN. BASED ON THE STATEMENT GIVEN BY DR.P.RAVICHANDRAN, THE ASSESSING OFFICER HAS ESTIMA TED THE NUMBER OF CASES THE ASSESSEE WOULD HAVE OPERATED ON THE DONORS OF THE KIDNEY FROM THE PERIOD 2001 ONWARDS. HE HAS - - ITA 2797, 2798/14 ETC. 3 ALSO ESTIMATED THE AMOUNT WHICH THE ASSESSEE WOULD HAVE RECEIVED BASED ON THE STATEMENT OF DR.P.RAVICH ANDRAN ON HOW MUCH HE HAS GIVEN TO DR. L. SRINIVASAN FOR PERF ORMING THE SURGERY ON THE DONORS OF THE KIDNEY AS WELL AS THE RECIPIENTS OF KIDNEY. 3.2 DR L.SRINIVASAN IN HIS STATEMENT HAD INDICATED THE NUMBER OF CASES WHICH HE AND THE ASSESSEE HEREIN HA VE CARRIED OUT IN THE COURSE OF KIDNEY TRANSPLANT IN WHICH DR.P.RAVICHANDRAN WAS INVOLVED. DR.L.SRINIVASAN HAD ALSO INDICATED THE APPROXIMATE AMOUNT HE HAD PAID TO THE ASSESSEE HEREIN FOR PERFORMING OPERATION OF THE DONORS OF KI DNEY. ALL THESE OPERATIONS OF THE DONORS OF THE KIDNEY WAS PE RFORMED IN MIOT AND BHARATHI RAJA HOSPITAL AND RESEARCH CENTRE. 3.3 DR L. SRINIVASAN IN HIS SWORN STATEMENT RECORDE D ON 20.12.2007 HAD STATED THAT HE WAS RECEIVING ` 30,000/- TO ` 35000/- PER SURGERY UPTO 2003 AND RAISED TO ` 40000/- UPTO THE END OF THE YEAR 2006 AND ` 45,000/- THEREAFTER. HE HAS ALSO STATED IN HIS SWORN STATEMENT THAT 30% OF THIS AMOUNT WENT TO THE SURGICAL TEAM OPERATING ON DONORS (WHIC H CONSISTS OF 3 MEMBERS - SURGEON AND TWO ASSISTANTS) AND - - ITA 2797, 2798/14 ETC. 4 45% WENT TO THE SURGICAL TEAM OPERATING ON RECIPIEN T AND 25% WENT TO THE TWO ANAESTHETICS TEAMS WITH DONOR A ND DONEE SURGICAL TEAMS. 3.4 DR L.SRINIVASAN HAS CATEGORICALLY STATED THAT H E HAS NOT RECEIVED ANY MONEY FROM THE PATIENT DIRECTLY. T HUS, THE PETITIONER HAD RECEIVED ONLY THE AMOUNTS GIVEN TO H IM BY DR L.SRINIVASAN. THE ASSESSING OFFICER HAD RECORDED A STATEMENT FROM THE APPELLANT ON 30.01.2008. IN THE STATEMENT THE ASSESSEE HAD STATED THAT HE WAS RECEIVING A SUM OF ` 12000/ - TO ` 15000/ - FROM DR L.SRINIVASAN FOR CARRYING OUT THE KIDNEY OPERATION OF THE DONORS. HE HAS ALSO INDICATED THAT HE COULD HAVE DONE A MAXIMUM OF ABOU T 400 TO 450 OPERATIONS IN 7 YEARS PERIOD FROM ASSESSMENT YEAR 2002-03 TO 2008-09. HE HAS ALSO STATED THAT HE HAS TO HAVE TWO ASSISTANTS TO CARRY OUT THE OPERATION TO WHOM 1 /3 RD OF THE MONEY RECEIVED BY THE ASSESSEE FOR SURGERY HAS BEEN PAID. THEREFORE, THE NET RECEIPT FOR THESE OPERATIONS WOU LD BE IN THE REGION OF ` 8000 TO ` 10000/- PER OPERATION. THE ASSESSEE HAS INCLUDED THE INCOME DERIVED FROM THESE OPERATIONS ALSO IN THE REGULAR RETURN OF INCOME. - - ITA 2797, 2798/14 ETC. 5 3.5 IT WAS SUBMITTED BEFORE THE LOWER AUTHORITIES T HAT FOR THE ASSESSMENT YEAR 2002-03 AND 2003-04 THE ASSESSE E HAD RECEIVED THE PAYMENT FROM DR L.SRINIVASAN BY CHEQUE S. THE AVERAGE SUM RECEIVED PER OPERATIONS IS ` 10000/- TO ` 15000/- OUT OF WHICH HE HAD SPENT 1/3 RD TO PAY HIS ASSISTANTS. HOWEVER, THE ASSESSING OFFICER HAS COMPLETELY IGNOR ED THE ABOVE STATEMENTS GIVEN BY DR L.SRINIVASAN AND THE ASSESSEE. HE HAS TAKEN THE STATEMENT GIVEN BY DR P. RAVICHANDRAN ON 29.12.2007 THAT HE HAS PAID MAXIMUM OF `1,00,000/- T OWARDS SURGEON FEE FOR THESE OPERATIONS. 3.6 THE ASSESSING OFFICER BASED ON THE STATEMENT OF DR. RAVICHANDRAN ASSUMED THE RECEIPTS OF ` 70000/- AS SURGEON FEE OUT OF WHICH ` 30000/- HAS BEEN PAID TO THE SURGEON OPERATING ON DONORS VIZ., THE ASSESSEE. THUS, HE HA S ARRIVED AT ` 21,000/- PER OPERATION FOR THE ASSESSEE. AGAIN, HE HAS ESTIMATED THE NUMBER OF CASES THAT WOULD HE HAV E BEEN PERFORMED BY THE ASSESSEE AS WELL AS DR. L. SRINIVA SAN AS 760 FOR THE ASSESSMENT YEAR 2002-03 TO 2008-09. IT IS N OT CLEAR ON WHAT BASIS HE HAS ARRIVED AT THIS FIGURE. THE ASSES SING OFFICER - - ITA 2797, 2798/14 ETC. 6 HAS NOT MADE AVAILABLE TO THE ASSESSEE THE BASIS OF WHICH HE HAS ARRIVED AT NUMBER OF OPERATION HE HAS PERFORMED AS WELL AS THE STATEMENT OF DR. P. RAVICHANDRAN BASED ON WHICH HE HAS ARRIVED AT THE AMOUNT PAID TO THE ASSESSEE FOR CARR YING OUT THE OPERATION. 3.7 THE ASSESSEE WAS NOT GIVEN OPPORTUNITY TO REBUT THE FIGURE ADOPTED BY THE ASSESSING OFFICER AS ALSO THE Y HAVE NOT GIVEN OPPORTUNITY TO CROSS EXAMINE DR. P. RAVICHAND RAN. FURTHER, THE ASSESSING OFFICER HAS IGNORED THE STAT EMENT OF THE ASSESSEE THAT HE HAS ENGAGED TWO ASSISTANTS TO HELP HIM TO CARRY OUT THE OPERATION AND HE SHOULD HAVE APPRECIA TED THAT SUCH INTRICATE OPERATIONS CANNOT BE DONE BY THE SUR GEON INDEPENDENTLY WITHOUT ASSISTANTS. ON THE BASIS OF THESE, HE HAS ESTIMATED ASSESSEE'S INCOME FROM THES E OPERATION PURELY ON SURMISES AND HAS ARRIVED AT THE ASSESSED INCOME AT ` 27,30,0001- FOR THE ASSESSMENT YEAR 2004-05. 3.8 THE ASSESSEE, BEFORE THE CIT(APPEALS) CONTENDED THAT THE FINDING OF THE AO THAT THE ASSESSEE IS NOT IN A POSITION TO EXPLAIN THE SOURCE FOR THE DEPOSITS MADE IN HIS BAN K ACCOUNT, IS - - ITA 2797, 2798/14 ETC. 7 NOT CORRECT. BOOKS OF ACCOUNTS ARE MAINTAINED AND S OURCES FOR DEPOSITS COULD BE EXPLAINED. DEPOSITS HAVE BEEN MAD E OUT OF PROFESSIONAL INCOME, INCOME FROM HOUSE PROPERTY, WI THDRAWAL FROM FIXED DEPOSITS, PPF WITHDRAWAL ETC. FURTHER, IT WAS SUBMITTED THAT THE ASSESSING OFFICER WHILE COMPLETI NG THE ASSESSMENT THE NUMBER OF RENAL TRANSPLANTS DONE BET WEEN SEPTEMBER, 2003 TO OCTOBER, 2007 IS 760 CASES WHICH INCLUDES 284 CASES AT MIOT AND 476 CASES AT BHARATHIARAJA HO SPITAL. ON APPEAL, THE CIT(APPEALS), RESTRICTED THE NUMBER OF CASES TO 527 WHICH INCLUDES 120 CASES AT MIOT HOSPITAL AND 407 C ASES AT BHARATHIRAJA HOSPITAL AND ALLOWED THE EXPENDITURE O F ` 9000/- PER CASE. AGAINST THIS QUANTUM ADDITION, THE DE PARTMENT FILED APPEAL AGAINST THE ORDERS OF THE CIT(APPEALS) AND T HE ASSESSEE FILED CROSS-OBJECTIONS BEFORE THE TRIBUNAL IN ITA N OS. 2007 TO 2011/MDS/12 AND & CO NOS. 14 TO 18/MDS/2012 FOR THE SE ASSESSMENT YEARS. 3.9 AFTER CONSIDERING THE SUBMISSION OF BOTH THE SI DES, THE TRIBUNAL VIDE ORDER DATED 18.4.2013 HAS FIXED THE N UMBER OF CASES DONE AT MIOT HOSPITAL AT 120 AND 450 CASES AT BHARATHIRAJA HOSPITAL, BOTH TOGETHER COMES TO 570 C ASES AND THE - - ITA 2797, 2798/14 ETC. 8 TRIBUNAL ALLOWED THE EXPENDITURE OF ` 12,000/- PER CASE AS AGAINST ` 9000/- ALLOWED BY THE CIT(APPEALS) AND RE-DETERMIN ED THE INCOME OF THE ASSESSEE FOR THESE ASSESSMENT YEA RS. 4. IT IS PERTINENT TO NOTE THAT ON THE QUANTUM ADDI TION, THE FINDING OF THE TRIBUNAL IN ITA NOS. 2007 TO 2011/MD S/12 AND & CO NOS. 14 TO 18/MDS/2012 DATED 18.4.2013 IS AS FOL LOWS : 22. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE LOWER AUTHORITIES. ASSESSMENTS OF BOTH THE ASSESSEES HERE, HAVE AS ITS BASE, THE SEARCH DONE IN THE RESIDENTIAL PREMISES OF DR. P. RAVICHANDRAN, WHO WAS ADMITTEDLY HEADING A NEPHROLOGY UNIT, WHICH WAS INTER ALIA DOING RENAL TRANSPLANTS. IT IS NOT DENIED BY EITHER OF THE ASSE SSEES THAT THEY HAD ASSISTED DR. P. RAVICHANDRAN. DR.DEEPAK LEMECH WAS DOING THE DONOR NEPHRECTOMIES WHEREAS DR.L.SRINIVASAN WAS DOING THE RECIPIENT NEPHRECTOMIES. VIS--VIS THE NUMBER O F SUCH PROCEDURES DONE IN DR.L.SRINIVASAN DR.DEEPAK LEMECH MIOT HOSPITAL, THERE IS NO DISPUTE BETWEEN THE PARTIES. THE BONE OF CONTENTION IS ONLY WITH RE GARD TO THE NUMBER OF PROCEDURES DONE IN BHARATHIRAJA HOSPITAL AND NET FEES ASSESSABLE IN THE RESPECTIVE HANDS. ASSESSING OFFICER RELIED ON A RECORD FROM BHARATHIRAJA HOSPITAL, FOR COMPUTING THE NUMBER OF TRANSPLANTS AND THIS APPEARS AT PAPER BOOK AT PAGE NOS. 21 TO 54. EXCEPT FOR A FEW CASES THE NAME DR.PRC IS MENTIONED AGAINST EACH PATIENT. NONE OF THE PARTIES HAVE DISPUTED THAT INITIAL PRC IS THE ABBREVIATION OF DR. P. RAVICHANDRAN. CASE OF THE ASSESSEES IS THAT 13 OF THE TOTAL 476 CASES MENTION ED IN THE LIST WERE OPERATIONS DONE BY ONE DR.MUTHU JAYARAMAN. AN EXAMINATION OF THIS LIST SHOW THAT - - ITA 2797, 2798/14 ETC. 9 AGAINST SERIAL OS.2,12,13,14,38,40,45,55,60,62,66,1 05 & 112, CONSIDERED BY CIT(A) AS TRANSPLANTS DONE BY DR.MUTHU JAYARAMAN EXCEPT SL. NOS. 2,38,40,13 WHICH SHOW THE INITIAL NJ OVERWRITTEN OVER THE IN ITIAL PRC, ALL OTHERS ARE DOUBTFUL. SIMILAR COLUMN AGAI NST L.NO.14 SEEMS TO BE BLANK. SL. NO.12,45, 55, 60 & 6 2 HAVE NO MENTION OF NJ, BUT ONLY THE INITIAL DR.P RC APPEARS. NAME OF DOCTORS AGAIN IN SL. NO.66 IS NOT CLEAR WHEREAS SL. NO.101 & 112 ARE MISSING. THEREFORE, OUT OF 13 CASES MENTIONED TO HAVE BEEN DONE BY DR.MUTHU JAYARAMAN, WHAT CAN AT THE BEST, BE ACCEPTED, IS ONLY EIGHT, GIVING THE FULL BENEFIT OF DOUBT THE ASSESSEE. CONTENTION OF THE ASSESSEE TH AT UNLESS TWO NAMES WERE GIVEN AGAINST SERIAL NUMBER, IT CANNOT BE CONSIDERED AS A BILATERAL NEPHRECTOMY SEEMS TO BE, PROBABLE SINCE A RENAL TRANSPLANT REQU IRE A DONOR AS WELL. WE ARE UNABLE TO ACCEPT THE ARGUMENT OF THE LD. D.R. THAT NON-MENTIONING OF DONORS NAME COULD HAVE BEEN AN OMISSION, SINCE SURGERY ON DONOR IS ALSO A MASSIVE PROCEDURE. VIS- - VIS THE CLAIM OF THE ASSESSEES THAT CERTAIN OPERATI ONS IN THE LIST WAS EXCLUSIVELY DONE BY THE DOCTORS OF BHARATHIRAJA HOSPITAL, SERIAL NO. MENTIONED BY THE ASSESSEES ARE THE FOLLOWING: 76,79,88,103,102,107,112,118,120,138,139,157, 158,161,167,175,176,182,228,244,264,273 A VERIFICATION OF THE CORRESPONDING PAGES IN THE RE CORD OF M/S. BHARATHIRAJA HOSPITAL SHOW THAT THE INITIAL S MENTIONED AGAINST EACH IS PRC ONLY. HOWEVER, THERE IS NO CONCLUSIVE EVIDENCE TO SHOW THAT ASSESSEES WERE ALWAYS THE SURGEONS, WHEN INITIAL PRC WAS MENTIONED. NEITHER HAS ANY EVIDENCE BEEN PRODUCED BY THE ASSESSEES TO SHOW THAT THESE WERE DONE BY A TEAM IN WHICH ASSESSEES WERE NOT PART. SIMILARLY ASSESSEES HAVE ALSO NOT PRODUCED ANY RECORD TO PROVE THAT 104 NUMBERS OF TRANSPLANTS WERE DONE BY THEM FREE OF COST FOR M/S.KIDNEY CARE TRUST. CONSIDERING THE VARIOUS DIFFICULTIES IN EXACTLY - - ITA 2797, 2798/14 ETC. 10 ASCERTAINING THE NUMBER OF OPERATIONS DONE BY THE ASSESSEES AT BHARATHIRAJA HOSPITAL, WE ARE OF THE OPINION THAT AN ESTIMATE OF 450 WILL RENDER JUSTICE . THUS, TOTAL NUMBER OF OPERATIONS DONE BY THE ASSESSEES CONSIDERING BOTH MIOT HOSPITAL AS WELL AS BHARATHIRAJA HOSPITAL CAN BE TAKEN AS 570. THUS,VIS -- VIS THE NUMBER OF OPERATIONS DONE BY THE ASSESSEES, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES BE LOW AND DIRECT THE ASSESSING OFFICER TO ADOPT SUCH NUMB ER AT 570 AND APPORTION IT IN THE SAME RATIO AS DONE A T TABLE AT PARA 9 ABOVE. 23. COMING TO THE ASPECT OF THE FEES RECEIVED BY T HE ASSESSEES FROM DR. P. RAVICHANDRAN, IT IS NOT DISPU TED THAT BOTH ASSESSEES HAD NOT MAINTAINED ANY RECORDS FOR THE RECEIPTS FROM DR. P. RAVICHANDRAN. ASSESSEE S HAD MENTIONED THAT AMOUNT RECEIVED PER OPERATION WAS ONLY ` 45,000/- AT THE MAXIMUM AGAINST WHICH ASSESSING OFFICER CONSIDERED IT AT ` 75,000/- FOR ASSESSMENT YEARS 2006-07 TO 2008-09 AND ` 70,000/- FOR ASSESSMENT YEARS 2002-03 TO 2005-06 PER OPERATION. IT IS NOT DISPUTED THAT BOTH THE ASSESSEES HAD SOME UNEXPLAINED DEPOSITS IN THEIR RESPECTIVE BANK ACCOUNTS. THEREFORE, IN OUR OPINION , CIT(A) WAS JUSTIFIED IN CONFIRMING THE QUANTUM OF F EES ESTIMATED MADE BY THE ASSESSING OFFICER IN THIS REGARD. 24. HOWEVER, VIS--VIS THE RELIEF GIVEN FOR THE EXPENDITURE INCURRED ON SUPPORTING STAFF, THE STATEMENT GIVEN BY THE HOSPITAL AUTHORITIES ARE VER Y RELEVANT. THESE STATEMENTS FIND A MENTION IN THE ASSESSMENT ORDER OF DR.P.RAVICHANDRAN. ONE SMT. ARUL JOTHI WHO WAS THE HOSPITAL-IN-CHARGE OF BHARATHIRAJA HOSPITAL HAD IN HER STATEMENT MENTIONE D, THAT A SUM OF ` 70,000/- TO ` 75,000/- PER PATIENT WAS TO BE COLLECTED FROM DR. P. RAVICHANDRAN FOR THE PROCEDURES DONE IN THE SAID HOSPITAL. THIS IS SPECIFICALLY MENTIONED IN THE ASSESSMENT ORDER OF D R. P. RAVICHANDRAN FOR ASSESSMENT YEAR 2007-08 DATED - - ITA 2797, 2798/14 ETC. 11 24.12.09, COPY OF WHICH HAS BEEN PRODUCED BEFORE US . . SHE HAS ALSO GIVEN A BREAK-UP OF THE EXPENDITURE IN FOUR HEADS NAMELY, HOSPITAL EXPENSES, MEDICINES, DI ET EXPENSES AND BLOOD CHARGES. SIMILARLY, DR.NATESAN, OF BHARATHIRAJA HOSPITAL IN A STATEMENT RECORDED ON 04.02.08 HAD ALSO MENTIONED THAT DR. P. RAVICHANDRA N USED TO DEPOSIT ` 75,000/- IN CASH DIRECTLY AT THE CASH COUNTER AND THIS SUM WAS AGAINST THEATRE CHARGES, POST OPERATIVE CHARGES, VENTILATOR CHARGES, CARDIAC MONITOR CHARGES, ANESTHESIA CHARGES, PHARMACY, BLOOD BANK AND CANTEEN CHARGES OF THE PATIENTS. THI S ALSO APPEARS IN THE ASSESSMENT ORDER OF DR. P. RAVICHANDRAN SUPRA. THUS, WHAT CAN CLEARLY BE DISCERNED IS THAT NONE OF THESE PERSONS HAD MENTIONED ANYTHING REGARDING THE PAYMENTS TO THE SUPPORT STAFF IN THE SURGICAL TEAM OF THE ASSESSEES . DR.L.SRINIVASAN, IN HIS STATEMENT HAD MENTIONED THA T 30% WENT TO THE DONOR SURGICAL TEAM, AND 45% WENT TO THE RECIPIENT SURGICAL TEAM. THE PAYMENTS EFFECT ED WERE FOR THE TEAMS AS SUCH. THEREFORE, IN OUR OPINI ON CONTENTION OF ASSESSEES THAT ASSISTANTS HAD TO BE PAID, WHICH INCLUDED JUNIOR DOCTORS AND STAFF NURSE S, HAS CONSIDERABLE STRENGTH. LD. CIT(A) ESTIMATED SUC H EXPENSES AT ` 9,000/- PER CASE. AMOUNT OF ` 2,000/- ESTIMATED BY THE LD. CIT(A) AS PAYMENT TO TWO STAFF NURSES PER OPERATION IS ON THE LOWER SIDE. IN THE F ACTS AND CIRCUMSTANCES, WE ARE OF THE OPINION THAT EXPENSE OF ` 12,000/- PER CASE CAN BE CONSIDERED REASONABLE. ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE ON THIS ASPECT AND THE ASSESSING OFFICER IS DIRECTED TO RECOMPUTE THE INCOME OF RESPECTIVE ASSESSEES CONSIDERING THE EXPENSE FOR EACH TRANSPLANT AT ` 2,000/-. CROSS OBJECTION OF THE ASSESSEES ON THIS ISSUE IS PARTLY ALLOWED. 5. AFTER THIS, THE ASSESSING OFFICER TOOK UP THE CA SE FOR LEVY OF PENALTY U/S.271(1)(C) OF THE ACT AND HE LE VIED - - ITA 2797, 2798/14 ETC. 12 PENALTY FOR THE ASSESSMENT YEARS UNDER CONSIDERATIO N IS AS UNDER : A.Y. PENALTY 2003-04 ` 4,72,500/- 2004-05 ` 2,88,090/- 2005-06 ` 1,90,850/- 2006-07 ` 3,21,000/- 2007-08 ` 2,40,330/- AGAINST THIS, THE ASSESSEE WENT IN APPEAL BEFORE TH E CIT (APPEALS). 6. ON APPEAL, THE CIT(APPEALS) CONFIRMED THE PENAL TY ON THE REASON THE ASSESSEE HAS NOT MAINTAINED ANY RELIABLE RECORD FOR THE NUMBER OF SURGERIES CONDUCT ED AND THE FEE RECEIVED THEREON. FURTHER, THE CIT(APPEAL S) OBSERVED THAT DUE TO THE EFFORTS OF THE AO, ON VERI FICATION OF THE SEIZED MATERIAL, THE ASSESSEE WAS FOUND TO HAVE CARRIED OUT SURGERIES ON A LARGE SCALE AND COLLECTI NG FEE THEREON OUTSIDE THE BOOKS OF ACCOUNT. AS A RESULT, THE AO HAS ARRIVED AT 760 SURGERIES SUPPOSED TO HAVE BEEN CONDUCTED FROM ASSESSMENT YEARS 2002-03 TO 2008-09. FURTHER, THE CIT(APPEALS) OBSERVED THAT THE AO HAS ARRIVED AT THE ASSESSEES SHARE OF FEE PER SURGERY AT ` 22,500/-. - - ITA 2797, 2798/14 ETC. 13 SUBSEQUENTLY, THE TRIBUNAL VIDE ORDER DATED 18.4.20 13, IN ITA NOS.2007 TO 2011/MDS/12 HAS FIXED THE NUMBER OF SURGERIES CONDUCTED DURING THE SAME PERIOD OF 7 YEA RS I.E. FROM 2002-03 TO 2008-09 AT 570 AND FEE FOR SURGERY AT ` 22,500/-. BASED ON THE ORDER OF THE TRIBUNAL, THE AO QUANTIFIED THE UNACCOUNTED INCOME FOR THE IMPUGNED ASSESSMENT YEARS AND LEVIED PENALTY U/S.271(1)(C) O F THE ACT. ACCORDING TO THE CIT(APPEALS), THE ASSESSEE H AS NOT PROVED THAT THERE IS NO CONCEALED INCOME WITH ANY C OGENT EVIDENCE SO AS TO ESTABLISH THAT NO PENALTY COULD B E LEVIED AND HE CONFIRMED THE LEVY OF PENALTY U/S.271(1)(C) OF THE ACT FOR ALL THESE ASSESSMENT YEARS. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THERE WAS SEARCH ACTION TOOK P LACE U/S.132 OF THE ACT IN THE CASE OF DR. P. RAVICHANDR AN, WHO WAS ASSOCIATED WITH THE ASSESSEE IN CONDUCTING KIDN EY TRANSPLANTATION OPERATION BY WAY OF CARRYING OUT SU RGERY ON THE DONORS OF THE KIDNEY. THE ASSESSMENT WAS FRAM ED IN THIS CASE U/S.143(3) OF THE ACT. IN THE COURSE OF SEARCH - - ITA 2797, 2798/14 ETC. 14 ACTION, DR. P. RAVICHANDRAN STATED THAT HE HAS PAID SURGICAL FEES TO THE DONORS SURGEON, DR. DEEPAL LA MECH ALONG WITH ANOTHER SURGEON, DR. L. SRINIVASAN. THE ASSESSEE HAS NOT MAINTAINED PROPER BOOKS OF ACCOUNT FOR RECEIPT OF FEES RECEIVED FROM DR. P. RAVICHANDRAN A ND ALSO FOR THE EXPENDITURE INCURRED BY THE ASSESSEE. THER EFORE, THE AO ESTIMATED THE RECEIPT OF SURGEON FEES AT ` 22,500/- PER PERSON AND THE INCOME OF THE ASSESSEE FOR ALL T HESE ASSESSMENT YEARS. ACCORDING TO THE LD. AR, THERE I S NO CONCLUSIVE EVIDENCE TO SHOW THAT THE ASSESSEE WAS A LWAYS THE SURGEON, WHO HAS CARRIED OUT THE SURGERIES ON T HE DONORS KIDNEY AND THE ASSESSEE HAS ALSO NOT PRODUC ED ANY RECORD TO PROVE THE NUMBER OF KIDNEY TRANSPLANT ATION OPERATIONS DONE AND CORRESPONDING FEES COLLECTED FO R THE SAME. SO, THE TRIBUNAL CAME TO THE CONCLUSION THAT IT IS FAIR TO ESTIMATE 120 NUMBER OF OPERATIONS WERE DONE BY T HE ASSESSEE IN MIOT HOSPITAL AND 450 OPERATIONS IN BHARATHIRAJA HOSPITAL AND TOTALLY IT IS ESTIMATED A T 570 OPERATIONS. ACCORDINGLY, FOR ALL THESE ASSESSMENT YEARS, IT IS DIRECTED TO ESTIMATE THE NUMBER OF OPERATIONS UN DER THE - - ITA 2797, 2798/14 ETC. 15 PRESCRIBED RATIO AS MENTIONED BY THE TRIBUNAL IN PA RA 9 OF ITS ORDER AND IN RESPECT OF FEES, IT WAS DIRECTED T O ESTIMATE THE SAME AT ` 22,500/- PER PERSON. THE LD. AR CONTENDED THAT THE CONCLUSION OF THE ASSESSING OFFICER IS BAS ED ON ESTIMATION OF INCOME AND IT IS NOT APPROPRIATE LEVY OF PENALTY IN THESE CASES. HE RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT V. SURESH CHANDRA MITTAL (251 ITR 09). 8. THUS, ACCORDING TO THE LD. AR, THERE WAS A DIFFERENCE OF OPINION AS REGARDS THE ESTIMATED INCOME OF THE A SSESSEE. SINCE THE LOWER AUTHORITIES AND THE TRIBUNAL ADOPTE D DIFFERENT ESTIMATES IN ASSESSING THE INCOME OF THE ASSESSEE, IT COULD NOT BE SAID THAT THE ASSESSEE HAD CONCEALED THE PARTICU LARS OF INCOME SO AS TO LEVY PENALTY U/S. 271(1)(C) OF THE ACT. SINCE THERE WAS A DIFFERENCE BETWEEN THE RETURNED INCOME AND ASSESSED INCOME DUE TO DIFFERENCE OF OPINION ABOUT ESTIMATED RATE OF FEES FOR SURGERY, IT CANNOT BE SAID THAT TH ERE IS CONCEALMENT OF INCOME AND PENALTY CANNOT BE LEVIED. BUT IN THE PRESENT CASE, THE ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNT SO AS TO SHOW THE CORRECT STATE OF AFFAIRS OF THE - - ITA 2797, 2798/14 ETC. 16 ASSESSEE. THE DETAILS OF THE INCOME WHATEVER WITHI N THE KNOWLEDGE OF THE ASSESSEE WAS NOT AT ALL BROUGHT TO THE NOTICE OF THE DEPARTMENT AND IT IS A WELL PLANNED AND EXECUTED TAX EVASION SO AS TO DEFRAUD THE REVENUE. BECAUSE O F SEARCH ACTION CARRIED OUT BY THE DEPARTMENT, THE UNACCOUNT ED INCOME CAME TO LIGHT AND THE EVASION WAS FOUND OUT. THE AR PLEADED BEFORE US THAT THE ASSESSEE HAS NOT CONCEALED THE I NCOME AND NOT FURNISHED INACCURATE PARTICULARS OF INCOME AND THE ASSESSEE WAS IN A POSITION TO EXPLAIN THE DEPOSITS MADE INTO ITS BANK ACCOUNTS. BUT HOWEVER, THERE WAS NO POSITIVE EFFOR TS MADE BY THE ASSESSEE TO EXPLAIN THE DEPOSITS INTO ITS BANK ACCOUNTS. THERE IS NO BONA FIDE EXPLANATION FROM THE SIDE OF THE ASSESSEE AND THE ADDITION MADE BY THE AUTHORITIES CANNOT BE CONSIDERED UNSUSTAINABLE. FURTHER, THE ADDITION MADE IN THE A SSESSMENT IS BASED ON THE SEIZED MATERIAL FOUND DURING THE COURS E OF SEARCH AND THESE ARE NOT CONTROVERTED BY THE LD. AR AND IT IS NOT UNPROVED THAT THE INCOME IS NOT BASED ON ANY POSITI VE MATERIAL. THE CASE LAW RELIED UPON BY THE ASSESSEE ONLY PERTA INS TO THOSE INSTANCES WHERE NO EVIDENCE IS AVAILABLE WITH THE A SSESSING OFFICER AND CERTAIN ADDITIONS ARE MADE BASED ON REV ISED RETURN - - ITA 2797, 2798/14 ETC. 17 AND INFORMATION SUBMITTED BY THE ASSESSEE DURING TH E COURSE OF ASSESSMENT PROCEEDINGS AND THEREFORE, THERE IS NO C ONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME AS HELD BY THE TRIBUNAL IN THE CASE OF M/S. OM AUTOMOB ILES IN ITA NOS.948 TO 952/MDS/2010 DATED 16.5.2012. IN THE PR ESENT CASE, IN FACT, THE CONTENTION OF THE ASSESSEE HAS BEEN SU CH THAT CERTAINLY CALLS FOR LEVY OF PENALTY. FIRST OF ALL, THE ASSESSEE FOUND A WAY AS TO HOW, IT CAN HIDE THE INFORMATION TO THE DEPARTMENT. EVEN AFTER SEARCH ACTION, THE ASSESSEE HAS NOT COME WITH THE PROOF TO SHOW THAT THE ASSESSEE HAS NOT CONCEALED T HE PARTICULARS OF INCOME AND AT THIS POINT OF TIME, TH E ASSESSEE HAS NOT COME CLEAN SO AS TO EXPLAIN EXACT QUANTUM OF IN COME EARNED BY THE ASSESSEE WITH ANY SUPPORTING EVIDENCE . IN THE RETURN OF INCOME FILED CONSEQUENT TO THE SEARCH OPE RATIONS, THE ASSESSEE DOES NOT DISCLOSE EITHER ITS TRUE TURNOVER OR THE TRUE PROFIT PERCENTAGE. EVEN AT THIS STAGE, ADDITIONS H AVE TO BE RESORTED TO AND THE TURNOVER IS ULTIMATELY CONFIRME D AT THE STAGE OF FIRST APPELLATE PROCEEDINGS. THE CASES, THEREFOR E, CLEARLY CALL FOR CONFIRMATION OF PENALTIES. AS THE CONTENTION OF THE ASSESSEE IS FAR FROM BONA FIDE AND THERE WAS A CLEAR-CUT STR ATEGY TO NOT - - ITA 2797, 2798/14 ETC. 18 ONLY EVADE TAXES, BUT ALSO TO FILE INACCURATE PARTI CULARS OF INCOME EVEN AFTER SEARCH OPERATION. AS SUCH, BY PLACING R ELIANCE ON THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF B.A.BALASUBRAMANIAM & BROS. CO. V. CIT (236 ITR 977 ), WE HAVE NO HESITATION IN CONFIRMING THE PENALTY IMPUGN ED U/S 271(1)(C) OF IT ACT, 1961. ACCORDINGLY, THE ACTION OF THE LOWER AUTHORITIES IS CONFIRMED. 9. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE D ISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 20 TH OF NOV., 2015 AT CHENNAI. SD/- SD/- ( $% & ) ( ' ( ) $ ) *%+,-,./01,2345,.62,+778,293 : ;< /JUDICIAL MEMBER ! ;<=>>70.?,.?@A1BA2 ': /CHENNAI, C; /DATED, THE 20 TH NOV., 2015. MPO* ;D EFGF /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. H3 /CIT(A) 4. H /CIT 5. FIJ K /DR 6. JLM /GF.