Dr. Ashok Kumar Maji, Kolkata V. Addl. CIT, Range - 1, Siliguri, Siliguri

ITA 394/KOL/2010

• Counselvise Citation: 39423514 RSA 2010
• Duration Of Justice: 4 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 22-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MIRAJ D. SHAH
• Section: 133(6)

Judgement Text

I.T.A. NO. 394/KOL./2010 ASSESSMENT YEAR: 2006-07 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER), AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 394/KOL. / 2010 ASSESSMENT YEAR : 2006-2007 DR. ASHOK KUMAR MAJI,........................... ......APPELLANT C/O. D.J. SHAH & CO., KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700 020 [PAN : AEIPM 7317 Q] -VS.- ADDITIONAL COMMISSIONER OF INCOME TAX,............. ...RESPONDENT RANGE-1, SILIGURI APPEARANCES BY: SHRI MIRAJ D. SHAH, ADVOCATE, FOR THE ASSESSEE SHRI DAVID Z. CHAWNGTHU, ADDL. CIT, SR. D.R., FOR T HE DEPARTMENT DATE OF CONCLUDING THE HEARING : JULY 11, 2014 DATE OF PRONOUNCING THE ORDER : JULY 14, 2014 O R D E R PER GEORGE MATHAN: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), SILIGURI IN A PPEAL NO. 138/CIT(A)/SIG/08-09 DATED 21.10.2009 FOR THE ASSES SMENT YEAR 2006- 07. 2. SHRI MIRAJ D. SHAH, ADVOCATE, REPRESENTED ON BEH ALF OF THE ASSESSEE AND SHRI DAVID Z. CHAWNGTHU, ADDL. CIT, SR. D.R., R EPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LD. A.R. ON BEHALF OF TH E ASSESSEE THAT THE ASSESSEE IS A DOCTOR, WHO IS PRACTISING GYNECOLOGIS T IN SILIGURI. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD DECLARED AN INCOME OF RS.5,50,210/- FOR I.T.A. NO. 394/KOL./2010 ASSESSMENT YEAR: 2006-07 PAGE 2 OF 4 THE RELEVANT ASSESSMENT YEAR. IT WAS THE SUBMISSION THAT IN THE COURSE OF ASSESSMENT THE ASSESSING OFFICER HAD ISSUED NOTICES UNDER SECTION 133(6) TO THE TWO CLINICS, WHERE THE ASSESSEE WAS ATTENDIN G, NAMELY M/S. MITRAS CLINIC AND M/S. RAMKRISHNA SEVA SADAN. IT WAS THE S UBMISSION THAT AS PER THE RECORDS OF MITRAS CLINIC, THE ASSESSEE HAD ATT ENDED 218 PATIENTS AND IN THE CASE OF RAMKRISHNA SEVA SADAN THE ASSESSEE H AD ATTENDED 339 PATIENTS. IT WAS THE SUBMISSION THAT CONSEQUENTLY A S THE ASSESSEE HAD SHOWN ONLY INCOME FROM THE OPERATIONS CONDUCTED BY THE ASSESSEE IN RESPECT OF 67 PATIENTS, THE ASSESSING OFFICER HAD E STIMATED THE ASSESSEES INCOME FROM BOTH THE CLINICS. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD CATEGORICALLY MENTIONED TO THE ASSESSING OFFICER TH AT THE ASSESSEE WAS NOT CHARGING OPERATION FEES FOR A SUBSTANTIAL NUMBE R OF CASES. HOWEVER, THE EXPLANATION GIVEN BY THE ASSESSEE DID NOT FIND FAVOUR WITH THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT THE B OOKS OF ACCOUNT AS CALLED FOR BY THE ASSESSING OFFICER HAD ALSO BEEN F URNISHED AND WITHOUT REJECTING THE ASSESSEES BOOKS THE INCOME OF THE AS SESSEE HAS BEEN ESTIMATED. LD. A.R. PLACED BEFORE US THE LIST OF TH E PATIENTS ALONG WITH THEIR REGISTRATION NOS. AND DATE OF DISCHARGE AND D ATE OF ADMISSION AS ALSO THE ADDRESSES OF THE PATIENTS IN RESPECT OF BO TH THE TWO CLINICS. THE SAID CHART ALSO SHOWS THE PROCEDURES DONE ON THE VA RIOUS PATIENTS. IT WAS THE SUBMISSION THAT AS THE BOOKS OF ACCOUNT AS MAIN TAINED BY THE ASSESSEE HAS NOT BEEN REJECTED THE INCOME OF THE ASSESSEE WA S NOT LIABLE TO BE ESTIMATED. 4. IN REPLY, LD. SR. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(APPEALS). IT WAS THE SUBMISSION THAT THE ASSESSEE HAD NOT SHOWN ANYTHING NOR ANY EVIDENCE TO SHOW THAT HE HAD NOT COLLECTED FEES FROM THE PATIENTS. IT WAS THE SU BMISSION THAT THE APPEAL OF THE ASSESSEE WAS LIABLE TO BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT THE OUTSET, A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE ASSE SSEE HAS PRODUCED THE I.T.A. NO. 394/KOL./2010 ASSESSMENT YEAR: 2006-07 PAGE 3 OF 4 BOOKS OF ACCOUNT, BANK STATEMENTS AND OTHER SUPPORT ING DOCUMENTS AND THE DETAILED INFORMATION AS CALLED FOR BY THE ASSES SING OFFICER. THE ASSESSING OFFICER HAS NOT REJECTED THE BOOKS OF ACC OUNT OF THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER HAS PROCEEDED TO EST IMATE THE ASSESSEES INCOME ON THE BASIS OF THE LIST OF PATIENTS, WHICH HAS BEEN OBTAINED FROM THE TWO CLINICS WHERE THE ASSESSEE IS ATTENDING. TH IS PRIMA FACIE IS NOT PERMISSIBLE. WITHOUT REJECTING THE ASSESSEES BOOKS , ESTIMATING THE ASSESSEES INCOME IS NOT PERMISSIBLE. ON THIS COUNT ITSELF, THE ADDITION AS MADE BY THE ASSESSING OFFICER AND AS CONFIRMED BY T HE LD. CIT(APPEALS) STANDS DELETED. EVEN OTHERWISE, IT IS NOTICED THAT THE ASSESSING OFFICER HAS TAKEN RS.6,500/- PER PERSON BY DIVIDING THE INC OME DISCLOSED BY THE ASSESSEE WITH A NUMBER OF OPERATIONS AS DISCLOSED B Y THE ASSESSEE. THIS FIGURE OF RS.6,500/- HAS BEEN USED FOR ESTIMATING T HE INCOME OF THE ASSESSEE BY MULTIPLYING WITH THE NUMBER OF PATIENTS AS HAS BEEN PROVIDED BY THE TWO CLINICS. A PERUSAL OF THE LIST OF PATIEN TS AS HAS BEEN SHOWN IN THE LIST AS ALSO THE PROCEDURES CONDUCTED ON THE PA TIENTS SHOW VARIOUS TYPES OF PROCEDURES, SUCH AS CESAREAN, NORMAL DELIV ERY, DIAGNOSIS, BED- REST, ETC. THE LIST OF THE PATIENTS SHOWS FEW PATIE NTS OF AGES 60 AND ABOVE. HOW THE AMOUNT OF RS.6,500/- CAN BE ADOPTED PARALL ELLY FOR CESAREAN SECTION, NORMAL DELIVERY AND FOR DIAGNOSIS AND FOR PATIENTS WHO ARE ADVISED BED-REST IS NOT COMING OUT OF THE ORDER OF THE ASSESSING OFFICER. CONSEQUENTLY THE VERY FOUNDATION OF THE ESTIMATION ITSELF IS FOUND TO BE ERRONEOUS. IN THESE CIRCUMSTANCES, WE ARE OF THE VI EW THAT NO ADDITION IS CALLED FOR IN THE HANDS OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JULY, 2014. SD/- SD/- SHAMIM YAHYA GEORGE MATHAN (ACCOUNTANT MEMBER) (JU DICIAL MEMBER) KOLKATA, THE 14 TH DAY OF JULY, 2014 I.T.A. NO. 394/KOL./2010 ASSESSMENT YEAR: 2006-07 PAGE 4 OF 4 COPIES TO : (1) DR. ASHOK KUMAR MAJI, C/O. D.J. SHAH & CO., KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700 020 (2) ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-1, SILIGURI (3) COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.