M/s Barasat Eye Hospital & M. R. C., Kolkata V. ITO, WD-55(2), KOLKATA, Kolkata

ITA 371/KOL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4077 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 07-11-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 07-04-2015
• Result in Favour of: Set Aside
• Court: TRIBUNAL
• Department Lawyers: DEBASIS BANERJEEJCIT
• Keywords: Salary income
• Section: 148; 139; 133(6); 194J; 40(a)(ia); 40a(ia); 143(1)

Judgement Text

ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 1 IN THE INCOME TAX APPELLATE TRIBUNAL,D BENCH KOLKATA BEFORE : SHRI M.BALAGANESH,ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO.371/KOL/2015 A.Y: 2006-07 M/S. BARASAT EYE HOSPITAL VS. I.T.O., W ARD 55(2), KOLKATA & M.R.C PAN: AAEFB9406D (APPELLANT) (RESPONDENT) APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE, AR FOR THE ASSESSEE SHRI DEBASIS BANERJEE,JCIT, SR.DR FOR THE REVENUE DATE OF HEARING : 07-11-2016 DATE OF PRONOUNCEMENT : 21-12-2016 O R D E R SHRI S.S. VISWANETHRA RAVI, JM :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30-01-2015 PASSED BY THE COMMISSIONER OF INCO ME TAX(APPEALS)-6, KOLKATA FOR THE ASSESSMENT YEAR 20 06-07. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOL LOWING GROUNDS OF APPEAL:- 1. FOR THAT THE LEARNED INCOME TAX OFFICER ARBITRAR ILY AND WRONGLY ADDED BACK AN AMOUNT OF RS.9,99,994/- AS UNDISCLOSED INCO ME OF THE APPELLANT FIRM WITHOUT CONSIDERING THE FACT OF SOCIAL VOLUNTARY SE RVICE ON BEHALF OF ROTARY CLUB OF DAKSHIN BARASAT. 2. FOR THE LEARNED INCOME TAX OFFICER ADDED BACK A N AMOUNT OF RS.5,30,130/- U/S 40(A) (IA) OF THE I.T.ACT' 1961 I GNORING THE FACT THAT THE ATTENDING DOCTORS ARE NEVER THE EMPLOYEE OF THE HOS PITAL. 3. FOR THAT THE PARTIAL DISALLOWANCE OF EXPENDITURE S ON ESTIMATE BASIS INCLUDING PURCHASE OF MEDICINE AND OPERATION LENS W AS WHIMSICAL AND UNJUSTIFIED. ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 2 4. FOR THAT THE APPELLANT RESERVES THE RIGHT TO TAK E FURTHER GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3. AT THE TIME OF HEARING THE LD.AR SUBMITS THAT GR OUND NO-3 NEEDS NO ADJUDICATION AND ACCORDINGLY, IT IS DISMIS SED AS NOT PRESSED. 4. THE ASSESSEE IS A FIRM, RUNNING A NURSING HOME I N THE NAME AND STYLE AS M/S BARASAT EYE HOSPITAL AND M.R. C AND RENDERS ITS SERVICES IN EYE RELATED TREATMENT AND F ILED RETURN OF INCOME ON 31-03-2007 SHOWING TOTAL INCOME OF RS.1,4 3,140/- AND THE SAME WAS DULY PROCESSED U/S 143(1) ON 12-09 - 2007.THE CASE WAS REOPENED AGAINST WHICH NOTICES U/ S 148 AND 142(1) OF THE ACT WERE ISSUED, IN RESPONSE, THE ARS REPRESENTING THE ASSESSEE APPEARED BEFORE THE AO. 5. GROUND NO-1 RELATES TO THE ADDITION OF RS 9,99,9 94/- AS UNDISCLOSED INCOME. BEFORE THE AO, THE ASSESSEE STA TED IN RESPONSE TO THE NOTICE U/S 133(6) OF THE ACT, THAT AS PER AGREEMENT THAT IT RECEIVED RS 9,99,994/- TOWARDS REIMBURSEMENT OF EXPENSES INCURRED DURING VARIOUS E YE CAMPS ORGANIZED JOINTLY BY THEM WITH ROTARY CLUB. THE AO FOUND FROM THE SAID AGREEMENT THAT DAKSHIN BARASAT EYE FOUNDAT ION UTILISED THE ASSESSEES HOSPITAL FOR THE TREATMENT OF THEIR EYE PATIENTS BEFORE AND POST OPERATION AND ACCORDING TO HIM THE RECEIPT OF RS 9,99,994/- IS AN INCOME OF THE ASSESS EE AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE AS UND ISCLOSED INCOME. 6. IN FIRST APPEAL, THE ASSESSEE CHALLENGED SAID AD DITION AND MADE SUBMISSIONS AS UNDER: ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 3 THAT THE APPELLANT FIRM RUNS A EYE HOSPITAL WI TH MICRO SURGERY AT THE REMOTE RURAL AREA WHERE TREATMENT OF EYES IS VERY MUCH UNAVAILABLE. DURING THE YEAR UNDER APPEAL M/S. ROTARY CLUB OF DAKSHIN BARASAT CENTRE ENTERED INTO AN AGREEMENT WITH THE APPELLANT FIRM HOSPITAL TO ORGAN IZE VARIOUS EYE CAMPS JOINTLY WITH CLUB IN DIFFERENT PARTS OF S OUTH BENGAL TO RENDER EYE TREATMENT INCLUDING MICRO SURGERY TO THE RURAL PUBLIC AND ACCORDINGLY AN AMOUNT OF RS.9,99,994/- WAS PAID TO THE FIRM. THE APPELLANT FIRM MAINTAINED A SEPARATE ACCOUNT F OR THIS CAMP SERVICE AND SUBMITTED THE SAME TO THE ROTARY C LUB AND OBTAINED CERTIFICATE FOR UTILIZATION OF MONEY FROM THE CA. APPOINTED BY ROTARY CLUB. THIS EYE CAMP SERVICE DUR ING THIS YEAR UNDER APPEAL HAS NO CONNECTION WITH THE REGULA R BUSINESS OF THE FIRM AND THE ROTARY CLUB ALSO DID NOT PAY AN Y AMOUNT TO THE FIRM FOR ITS USUAL BUSINESS EXCEPT SERVICE CHAR GE FOR RS.99,999/-. THIS VOLUNTARY SOCIAL SERVICE OF THE FIRM HAS E NTIRELY BEEN IGNORED BY THE LEARNED ITO AND ADDED BACK THE ENTIR E RECEIPT OF THE SOCIAL SERVICE FUND FOR RS.9,99,994/- TO THE TO TAL INCOME IGNORING THE ACTUAL STATE OF AFFAIRS. FROM THE COPY OF AGREEMENT AND ACCOUNTS SEPARATELY PREPARED FOR THIS EYE CAMP SERVICE IT WOULD BE EVIDENT THAT THE FIRM BUSINESS HAS NO CONN ECTION WITH THE EYE CAMP EXCEPT THE SUBSEQUENT TREATMENTS REQUI RED TO THE EYE CAMP PATIENTS AFTER CAMP THIS ADDITION IS UNJUS T, ARBITRARY AND DEVIANCE OF ACTUAL STATE OF AFFAIRS. HENCE THIS ADDITION IS LIABLE TO BE DELETED. 7. THE CIT-A FOUND THE ENTIRE SUM RECEIVED FROM ROT ARY CLUB WAS STATED TO HAVE BEEN SPENT ON CAMP EXPENSES, PRI MARILY CONSISTING OF IOL LENSES FOR CATARACT PATIENTS, PUB LICITY, FOODING AND OTHER EXPENSES FOR PATIENTS ETC.. ON NO TICING THE VOUCHERS FOR ALLEGED EXPENSES WHICH WERE NEITHER CA LLED FOR BY A.O NOR PRODUCED, THE ASSESSEE WAS ASKED TO PRODUCE BILLS AND VOUCHERS FOR SUCH EXPENSES. IN RESPONSE, THE ASSESS EE FILED INVOICES FROM ON S.S VISION, BARUIPUR FOR SUPPLY OF IOL LENSES AND A BILL FROM ONE SAGAR DECORATORS FOR CAMP SITE DECORATING, MIKE, PUBLICITY WAS PRODUCED, AND ACCORDING TO HIM NO OTHER BILLS AND VOUCHERS WERE PRODUCED. 8. THE CIT-A IN ORDER TO VERIFY THE VERACITY OF THE EXPENSES INCURRED IN THE ROTARY EYE CAMP, A COMMISSION WAS I SSUED TO ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 4 JURISDICTIONAL ITO, WARD 55(2), KOLKATA, TO CONDUCT AN ENQUIRY. THE A.O GOT ENQUIRED THROUGH HIS INSPECTOR AND FILE D REPORT. THE CIT-A FOUND THAT MR. S MONDAL, PROP OF S.S.VISI ON STATED THAT, HE HAD NO TRANSACTION WITH BARASAT EYE HOSPIT AL DURING THE GIVEN PERIOD AND THE INVOICES WITH NAME OF HIS CONCERN WERE FALSE. LIKEWISE, ONE MR. PRANAB HALDER OF M/S SAGAR DECORATORS STATED THAT THE BILLS AND INVOICES PRODU CED IN THE NAME OF HIS CONCERN WERE FALSE AND NO SUCH ITEMS WE RE SUPPLIED TO THE ASSESSEE NOR HE DEALS IN SUCH ITEMS AND FURTHER HE NEVER WRITES IN ENGLISH AS APPEARING IN BILL. 9. ACCORDING TO THE CIT-A, THE ASSESSEE DID NOT GIV E ANY REPLY TO THE REPORT AS SUBMITTED BY THE AO AND CONF IRMED THE ADDITION MADE BY THE AO AND RELEVANT PORTION OF WHI CH IS REPRODUCED HEREIN BELOW: 3.6 THE INFORMATION OBTAINED BY ITO THROUGH HIS ENQ UIRY WERE CONFRONTED TO A/R OF THE APPELLANT MR. SK SAMANTA DURING THE COUR SE OF HEARING. HOWEVER AFTER SEEKING ADJOURNMENT, NO COMPLIANCE HAS BEEN M ADE TO THE EVIDENCE CONFRONTED. IN VIEW OF THE ABOVE, IT IS HELD THAT A .O HAD CORRECTLY HELD THAT THE EXPENDITURE AGAINST THE EARNING FROM ROTARY CLU B, WAS OUT OF THE EXISTING EXPENDITURE OF HOSPITAL. THE APPEAL MADE O N THIS GROUND IS DISMISSED. 10. BEFORE US THE LD.AR SUBMITS THAT THE AO ADDED SUCH AMOUNT FOR NOT SHOWING THE SAME IN THE PROFIT AND L OSS ACCOUNT AND REFERRING TO PAGE-2 OF THE PAPER BOOK SUBMITS T HAT THE ASSESSEE INCURRED SUCH EXPENSES PRIOR TO CAMP, ON T HE DAY OF CAMP, FOR SURGERY AND POST CAMP AND ARGUED THAT ALL THE EXPENSES INCURRED DURING SUCH EVENTS WERE PAID BY T HE ASSESSEE TO THE CONCERNED PARTIES AND THE SAME WERE RECEIVED TOWARDS REIMBURSEMENT FROM THE ROTARY CLUB AND THE SAME DOES NOT CONSTITUTE THE INCOME OF ASSESSEE. IN SUPP ORT OF THIS, THE LD.AR REFERRED TO PAGES 3 & 4 OF THE PAPER BOOK . ON THE OTHER HAND, THE LD.DR SUBMITS THAT THE SAID DETAILS AS PRODUCED AND REFERRED WERE NOT BEFORE THE AO FOR HI S ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 5 EXAMINATION AND SHOWING INCOME OF RS.99,999 AS REC EIVED TOWARDS SERVICE CHARGES IS ENTIRELY A NEW ARGUMENT AS ADVANCED BY THE ASSESSEE BEFORE THE CIT-A AND ALSO REFERRED TO PARA 3.4 OF THE IMPUGNED ORDER OF THE CIT-A. HE ALSO SUBMITS THAT THE CIT-A COULD HAVE REMANDED THE ISSU E TO THE AO FOR CONDUCTING ENQUIRY INSTEAD OF ISSUING OF COM MISSION TO THE JURISDICTIONAL ITO FOR THE SAME. 11. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERI AL AVAILABLE ON RECORD. WE FIND THAT FROM THE SUBMISSI ONS OF THE ASSESSEE THAT AN AMOUNT OF RS.9,99,994/- IS NOT THE INCOME AND IT WAS ONLY AN EXPENDITURE INCURRED BY THE ASSE SSEE DURING THE EYE CAMPS IN PURSUANCE OF THE AGREEMENT ON BEHA LF OF ROTARY CLUB. THE DETAILS OF WHICH ARE PLACED ON REC ORD AT PAGE- 2 OF THE PAPER BOOK. IN SUPPORT OF THE SAME, THE LD .AR ALSO REFERRED TO PAGE NO-3 ETC.. OF THE PAPER BOOK, WHIC H CLEARLY SHOWS THAT THE ASSESSEE RECEIVED SUCH AMOUNT THROUG H CHEQUE FROM ROTARY CLUB OF DAKSHIN BARASAT. WE FIND THAT T HE LD.AR ALSO PLACED ON RECORD A DOCUMENT RELATING TO MATCHI NG GRANT AT PAGE-4 OF THE PAPER BOOK, WHICH CLEARLY SHOWS THAT THE DETAILS OF EXPENSES INCURRED TOWARDS CATARACT MICRO SURGERY OPERATION FOR 350 BENEFICIARIES. THEREFORE, IT CLEARLY ESTABL ISHES THAT THE ASSESSEE INCURRED ALL THE EXPENDITURE ON ITS OWN I .E. PRIOR TO CAMP, ON THE DAY OF CAMP, FOR SURGERY AND POST CAMP AND THE SAME WERE REIMBURSED BY THE ROTARY CLUB OF DAKSHIN BARASAT. THEREFORE, IN VIEW OF THE SAME, WE HOLD THAT THE AM OUNT IN QUESTION DOES NOT CONSTITUTE THE INCOME OF ASSESSEE EXCEPT THE PORTION OF RS.99,999/- REMAINING ADDITION THEREON I S LIABLE TO BE DELETED. THUS, THE ORDER OF THE CIT-A ON THIS IS SUE IS NOT JUSTIFIED AND GROUND NO-1 OF ASSESSEES APPEAL IS P ARTLY ALLOWED. ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 6 12. GROUND NO-2, THE ASSESSEE CHALLENGED THE DISALL OWANCE OF EXPENDITURE CLAIMED ON ACCOUNT OF DOCTORS REMUNERAT ION. 13. THE AO FOUND THE ASSESSEE PAID RS.5,41,655/- TO TWELVE (12) ATTENDING DOCTORS AND CLAIMED AS PROFESSIONAL FEES OF OUT OF WHICH RS 5,30,130/- HAS BEEN PAID TO TEN DOCTORS WHERE THE SUCH FEES IN INDIVIDUAL EXCEEDED RS 20,000/- AND NO TDS WAS DEDUCTED AND FOR VIOLATION OF SECTION 194J OF THE A CT AND DISALLOWED RS 5,30,130/- U/S 40(A)(IA) OF THE ACT A ND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 14. BEFORE THE CIT-A, THE ASSESSEE SUBMITTED AS UND ER: 5. THAT THE ADDITION MADE BY THE LEARNED INCOME TAX OFFICER U/S.40(A)(IA) IS UNJUST ON THE GROUNDS THAT THE PAYMENTS TO THE ATTE NDING DOCTORS WERE GENUINE AND CORRECT AND THE ACTUAL EXPENDITURE CANN OT ADDED BACK TO THE TOTAL INCOME OF THE APPELLANT ONLY TO MEET THE STAT UTORY OBLIGATION WHEN PENAL PROVISIONS OF THE SAID ACT ARE PREVALENT TO C OMPEL THE ASSESSEE IN THIS REGARD. FURTHER TO MY EARLIER STATEMENT ON THE GROUNDS OF A PPEAL IN RESPECT OF ADDITION MADE U/S.40(A)(IA) BY THE LEARNED ITO I BE G TO SUBMIT THAT THE PAYMENTS TO THE ATTENDING DOCTORS WERE MADE IN COUR SE OF REGULAR BUSINESS AND THERE WAS NO AMOUNT PAYABLE TO THEM. THE AMOUNT S WERE PAID AND NOT PAYABLE. FURTHERMORE THE PAYEE DOCTORS HAVE SHOWN T HOSE PAYMENTS IN THEIR RETURN OF INCOME DURING THIS YEAR UNDER APPEAL AND HAVE PAID INCOME TAX AS PER CALCULATION FOR THE INCOME ON PAYMENTS. THE APP ELLANT NURSING HOME HAS NOT DEDUCTED TAX FROM PAYMENTS BUT THE PAYMENTS HAV E SUFFERED TAX WIN THE HANDS OF THE PAYEES. THUS THE ADDITION SHOULD NOT BE MADE TO THE INCOME OF THE APPELLANT FIRM. APART FROM THIS THE DOCTORS ARE NOT THE EMPLOYEE OF THE NURSING HOME AND THEY VISITED THE NURSING HOME ON R EQUEST OF THE PATIENTS. THE PAYMENTS WERE MADE BY THE PATIENTS TO THE VISIT ING DOCTORS THROUGH NURSING HOME. I RELY UPON THE CASE LAW CIT VS. DEEP NURSING H OME AND CHILDREN HOSPITAL (2008) 169 TAXMAN (PUNJ) AND HAR) AND ITO VS. CALCU TTA MEDICAL RESEARCH INSTITUTION (2000) 75 ITD 484 (CAL). WHEN THE LIABI LITY OF DEDUCTING TAX CASES THE QUESTION OF ADDITION TO THE TOTAL INCOME ULS.40(A)(IA)DOES NOT ARISE. 15. THE CIT-A CONFIRMED THE ADDITION AS THE ASSESSE E WAS STATED TO HAVE BEEN ADMITTED THE PAYMENTS TO SUCH D OCTORS AND THE RELEVANT PORTION OF WHICH IS REPRODUCED HEREIN BELOW: 4.3 APPELLANTS SUBMISSION AND FACTS AVAILABLE ON RE CORD ARE CAREFULLY CONSIDERED. APPELLANT HAS NOT DISPUTED THE FACT THA T PAYMENT TO 10 DOCTORS WHO WERE NOT HIS EMPLOYEES, WAS MADE IN AMOUNT EXCE EDING RS. 20,000/- , WHICH ATTRACTED TDS U/S 194J OF THE I.T. ACT. AS NO TAX HAD BEEN DEDUCTED ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 7 WHILE MAKING PAYMENT THE EXPENDITURE WAS REQUIRED T O BE DISALLOWED U/S 40A(IA) OF THE I.T.ACT. 16. BEFORE US THE LD.AR SUBMITS THAT THE ALL THE TEN (10) ATTENDING DOCTORS WERE NOT EMPLOYED IN ASSESSEES NURSING HOME AND THEY WERE ATTENDING AS CONSULTANTS IN ASSE SSEES NURSING HOME ONLY ON THE REQUEST MADE BY THEIR RESP ECTIVE PATIENTS AND WHATEVER AMOUNTS WERE RECEIVED FROM S UCH PATIENTS WERE PAID TO TEN (10) SUCH ATTENDING DOCTO RS. THE LD. AR ALSO SUBMITS THAT THE SAID DOCTORS WERE SHOWN TH E AMOUNT AS RECEIVED FROM THE ASSESSEE AS INCOME AND SUFFERE D FROM TAX. HE FURTHER REFERRED TO THE DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF ANSAL LANDMARK AND URGED TO SE ND THE ISSUE TO THE AO FOR VERIFICATION OF THE SAME. ON THE CONT RARY, THE LD.DR SUBMITS THAT THE STATUTE COVERING THE ISSUE I S NOT APPLICABLE TO THE PRESENT CASE. 17. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L ON RECORD. WE FIND THAT THE ASSESSEE MADE THE SAME ARG UMENT BEFORE THE CIT-A THAT THE SAID DOCTORS HAVE SHOWN T HE FEES RECEIVED FROM RESPECTIVE PATIENTS THROUGH ASSESSEE AS THEIR INCOME. BUT, HOWEVER, THE CIT-A DID NOT CONSIDER TH E SAME. IN THIS REGARD, WE MAY REFER TO THE DECISION OF THE KO LKATA TRIBUNAL IN THE CASE OF ITO VS. CALCUTTA MEDICAL RE SEARCH INSTITUTE REPORTED IN 75 ITD 484(CAL) AS RELIED BY THE ASSESSEE BEFORE THE CIT-A. RELEVANT PORTION OF WHICH IS REPR ODUCED HEREIN BELOW FOR BETTER UNDERSTANDING:- 10. IN THE INSTANT CASE, THE ASSESSEE HAD NOT CONTR OLLED OVER THE VISITING DOCTORS THAT HOW TO DO THE TREATMENT OF THE PATIENTS. IT ALSO APPEARS THAT AS PER THE TERMS AND CONDITIONS OF THE ORDER THAT SOME PATIENTS WERE BROUGHT BY THE VISITING DOC TORS THEMSELVES IN THE INSTITUTE (ASSESSEE). THE ASSESSEE WILL HAVE TO PROVIDE THE INFRASTRUCTUR E FOR THESE VISITING DOCTORS TO CARRY OUT THEIR PROFESSIONAL ACTIVITIES IN ITS PREMISES AT THE COMM ISSION OF 40 PER CENT DEDUCTED FROM THE PAYMENT MADE TO THESE DOCTORS. NOMENCLATURE OF THE COMMISSION IS MENTIONED AS ADMINISTRATION CHARGES. THIS IS THE DUTY OF THE ASS ESSEE TO COLLECT THE PAYMENT FROM THE PATIENTS FOR VARIOUS CHARGES INCLUDING THE DOCTORS' FEE AND THESE VISITING DOCTORS MIGHT HAVE THIS ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 8 ARRANGEMENT WITH SEVERAL OTHER HOSPITALS, NURSING H OME, .ETC., BESIDES HAVING THEIR INDIVIDUAL PRACTICE. THE PAYMENT RECEIVED BY THE VISITING DOCT ORS CANNOT BE TREATED AS FEE/COMMISSION OR PERQUISITE OR ,PROFIT IN LIEU OF SALARY, ETC., BECA USE IN SOME CASES THE PATIENTS ARE REFERRED BY THE DOCTORS THEMSELVES. BY CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUM STANCES OF THE CASE, NOWHERE IT APPEARS THAT THERE WAS ANY INTENTION OF REGULAR EMPLOYMENT AS TH ESE VISITING DOCTORS WERE NOT ENTITLED FOR PROVIDENT FUND AND OTHER TERMINAL BENEFITS. IT APPE ARS AS A PROFESSIONAL ARRANGEMENT TO SHARE THE PROFIT IN A SYSTEMATIC AND REGULAR MANNER. THE ARRANGEMENT IS FOR A LIMITED PERIOD OF ONE YEAR WHICH CANNOT BE CONSIDERED AS PERMANENT OR REG ULAR IN NATURE. SO, WE ARE OF THE VIEW THAT THE PAYMENT MADE BY THE 3 ASSESSEE TO THE DOCTORS I S NOT RELATABLE TO THE EMPLOYMENT. IT IS MERELY THE PROFIT SHARING ARRANGEMENT OUT OF THE FE E COLLECTED BETWEEN THE PARTIES. THE COMMISSIONER (APPEALS) HAS ALREADY GONE THROUGH THE VARIOUS ASPECTS OF THE CASE IN HIS ORDER WHICH NEED NOT TO BE REPEATED TO WHICH WE AGREE IN PRINCIPLE. 11. MOREOVER, THE VISITING DOCTORS HAVE SHOWN THE I NCOME RECEIVED FROM THE ASSESSEE IN THEIR INDIVIDUAL RETURN AS THE INCOME FROM PROFESSION AND NOT FROM THE SALARY. AS WE WERE TOLD THAT THE DEPARTMENT HAS ACCEPTED THE INCOME IN QUESTION UNDER THE HEAD 'PROFESSIONAL INCOME'. NOW IT IS NOT DESIRABLE THAT THE DEPARTMENT SHOULD TAKE TWO OPPOSITE VIEWS ABOUT THE SAME INCOME, I.E., PROFESSIONAL INCOME IN THE INDIVIDUAL RETURN; AND AS SALARY INCOME IN THE INSTANT CASE. IN VIEW OF THE FACTS DISCUSSED AND NARRATED ABOVE WE A RE OF THE OPINION THAT IT IS NOT OPEN TO THE REVENUE TO TAKE A SECOND VIEW IN CONSISTENT WITH A DIAMETRICALLY OPPOSED TO THE EARLIER VIEW AS PER THE RATIO LAID DOWN IN 203 ITR 351 (SIC.). IN T HE ABSENCE OF ANY ADVERSE MATERIAL/ EVIDENCE, WE FIND NO MERIT IN THE APPEAL FILED BY THE DEPARTM ENT WHICH IS HEREBY DISMISSED. 18. THE CO-ORDINATE BENCH IN THE CASE OF SUPRA ACCEPTED THE CONTENTIONS OF THE ASSESSEE THAT THERE WAS NO RELATIONSHIP BETW EEN THE ASSESSEE THEREIN AND VISITING DOCTORS AND TOOK COGNIZANCE OF THE SAID DOCTORS SHOWING SUCH INCOME IN THEIR INDIVIDUAL RETURNS AS INCOME FROM PROFESSION AND NOT FROM SALARY. IN THE PRESENT CASE, THE CONTE NTION OF THE LD.AR IS THAT THE SAID ATTENDING DOCTORS ARE NOT THE EMPLOYE ES OF ASSESSEE AND THE ASSESSEE ACCORDING TO CIT-A ADMITTED THAT SUCH PAYM ENTS WERE MADE TO SUCH TEN (10) DOCTORS, WHO ATTENDED THEIR RESPECTIV E PATIENTS IN ITS PREMISES. TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE LD.AR THAT THE ASSESSEE IS READY TO SUBMIT THE RETURNS INCOME OF S UCH DOCTORS BEFORE THE AO, WE ARE OF THE VIEW THAT THE ISSUE SHALL GO BACK TO THE AO FOR VERIFICATION OF THE SAME, WHETHER THE SAID DOCTORS SHOWN SUCH INCOME IN THEIR RESPECTIVE RETURNS OR NOT. 19. KEEPING IN VIEW OF THE PRINCIPLE ENUNCIATED BY THE HONBLE HIGH COURT OF DELHI SUPRA, WE ARE OF THE VIEW THAT THE IF THE CONCERNED PAYEE(S) HAS TAKEN INTO ACCOUNT THE RELEVANT SUM F OR COMPUTING INCOME IN THEIR RETURNS OF INCOME FURNISHED U/S. 139 AND H AS PAID TAX DUE ON THE INCOME DECLARED IN SUCH RETURN, WE, THEREFORE, SET ASIDE THE IMPUGNED ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 9 ORDER OF CIT(A) TO THE EXTENT CONFIRMING THE DISAL LOWANCE MADE BY THE AO U/S. 40(A)(IA) AND RESTORE THE MATTER TO THE FILE O F THE AO FOR DECIDING THE SAME AFRESH IN THE LIGHT OF THE SUBMISSIONS OF TH E ASSESSEE. THE ASSESSEE SHALL BE AT LIBERTY TO FILE REQUISITE EVID ENCES, IF ANY, TO SUBSTANTIATE ITS CLAIM. 20. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 21 ST DECEMBER,2016 SD/- SD/- M.BALAGANESH S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 21/12/ 2016 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT/ ASSESSEE: M/S. BARASAT EYE HOSPITAL & M.R.C DAKSHIN BARASAT STATION ROAD, DAKSHIN BARASAT, SOUTH 24 PARGANAS-743372(WB). 2 THE RESPONDENT/ DEPARTMENT: INCOME TAX OFFICER, WARD 55(2), 54/1 RAFI AHMED KIDWAI ROAD, KOLKATA-700 016. 3 4. / THE CIT(A) THE CIT 5 . DR, KOLKATA BENCH 6 . GUARD FILE . **PP/SPSTRUE COPY, BY ORDER, ASSTT REGI STRAR ITA NO. 371/KOL/15 M/S. BARASAT EYE HOS. & MRC 10