ACIT, Circle, Haldia, Purba Medinipur V. Shri Dipankar Bhattacharjee, Purba Medinipur

ITA 509/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70405 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2013
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 03-04-2012
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Additional evidence
• Section: 143(3); 133A

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND . . . . ''# ''# ''# ''#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 509/KOL/2012 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2005-06 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. SHRI DI PANKAR BHATTACHARJEE CIRCLE-HALDIA. (PAN: ADCPB8822A) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING : 08.11.2013 DATE OF PRONOUNCEMENT: 21.11.2013 FOR THE APPELLANT: SMT. RANU BISWAS, SR. DR FOR THE RESPONDENT: SHRI SUBASH AGARWAL, ADVOCAT E $0 / ORDER PER BENCH: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XXXIII, KOLKATA IN APPEAL NO. 114/CIT(A)-XXXIII/CIR.53/KOL/07-08 DATED 10.01.2012 . ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-53, KOLKATA U/S. 143(3) OF THE INCOME-TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005-06 VIDE HIS ORDER DA TED 24.12.2007. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) DELETING THE ADDITION MADE BY AO ON THE BASIS OF IMPOUNDED DOCUM ENTS FOR A SUM OF RS.3,12,566/-. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.1: THAT THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING T HE ADDITION OF RS.31,25,661/- WITHOUT PERUSING THE IMPOUNDED DOCUMENTS PARTICULARLY WHEN THREE WAS CLEAR CONTRADICTION BETWEEN THE OBSERVATION IN THE ASSESSMENT ORDER AND THE REMAND REPORT. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS A MEDICAL PRACTITIONER. A SURVEY U/S. 133A OF THE ACT WAS CONDUCTED ON THE BUSINESS PREMISES OF T HE ASSESSEE ON 27.10.2005 AND DURING THE COURSE OF THIS SURVEY SOME DOCUMENTS WERE IMPOUNDED AND PARTICULARLY IN DISPUTE IS DOCUMENT DB-6. THE AO AFTER GOING THROUGH THE DOCUMENT DB-6 NOTED THAT ASSESSEE HAS RECEIVED OPERATION CHARGE OF RS.8,68,239/- FOR THE PERIOD 03 .05.2005 TO 30.03.2005, THE PERIOD FOR WHICH THE IMPOUNDED DOCUMENT DB-6 PERTAINS. THE AO INTER POLATED THIS DATA BASED ON IMPOUNDED 2 ITA NO. 509/K/2012 SHRI DIPANKAR BHATTACHARJEE AY:2005-06 DOCUMENT DB-6 FOR WHOLE OF THE YEAR AND CONSIDERED THE OPERATION CHARGES AT RS.34,72,956/- WHICH IS NOTED IN THE ASSESSMENT ORDER PARA 7.2 AND THE SAME READS AS UNDER: 7.2 SO INCOME FROM OPERATION CHARGES IS COMPUTED AS UNDER: TOTAL RECEIPT FROM JANUARY TO MARCH RS. 8,68,2 39/- SO GROSS RECEIPTS FROM OPERATION CHARGES FOR 12 MONTHS COMES TO 4XRS.8,68,239/- RS.34,72,956 /- THESE FACTS ARE UNDISPUTED. THE AO ACCORDINGLY, AL LOWED REBATE OF 10% FROM THE ABOVE AMOUNT OF OPERATION CHARGES COMPUTED BY HIM AND MAD E ADDITION OF OPERATION CHARGES AT RS.31,25,661/- BY OBSERVING IN PARA 7.3 AS UNDER: 7.3. GIVING ALLOWANCE FOR THE FACT THAT NUMBER OF PATIENTS IS NOT ALWAYS THE SAME. 10% IS DEDUCTED FROM THIS AMOUNT. SO INCOME FROM OPERATION CHARGES COMES TO RS.34,72,956/- RS.3,47,295/- = RS.31,25,66 1/- AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO AFTER CALLING OF REMAND REPORT ON THE BASIS OF DOCUMENTS SUBMITTED BEFORE HIM BY ASSESSEE RESTRICTED THE ADDITION AT RS. 5 LAC. THE CIT(A) HAS ADMITTED ADDITIONAL EVIDENCE AND FOR THA T PURPOSE HE CALLED REMAND REPORT AND THE OBSERVATION OF THE CIT(A) IN PARA 3.1 READS AS UNDE R: SINCE THIS MATERIAL WAS NOT AVAILABLE AT THE TIME OF ASSESSMENT, IT AMOUNTED TO ADDITIONAL EVIDENCE. AFTER CONSIDERING FACTS OF TH E CASE, MY PREDECESSOR ADMITTED THE SAID EVIDENCE AND CALLED FOR REPORT OF THE ASSESSIN G OFFICER IN TERMS OF RULE 46A OF I T. RULES. THE REPORT HAS BEEN RECEIVED VIDE LETTER NO . DCIT/CIRCLE-HALDIA/REMAND REPORT/2010-11 DATED 10.06.2010. IN THE SAID REPOR T THE ASSESSING OFFICER HAS, AFTER VERIFICATION, OBSERVED AS UNDER: 1. THAT NOTNG IN DB-6 IS NOT THE FEES RECEIVED BY ASSESSEE FOR CONDUCTING OPERATION. THUS, ENTIRE SUM NOTED IN DB-6 IS NOT THE NCOME OF APPELLANT. IT IS PACKAGE AMOUNT SETTLED/RECEIVED FROM PATIENT WHICH IS FURTHER PAID /PARTED TO AS ASSISTANT CHARGES, ANESTHETIC DOCTORS CHARGES, BED RENT, O.T. CHARGES, MEDICINES ETC. ETC. AND PART IS RETAINED BY THE ASSESSEE AS OPERATION FEES. 2. HOWEVER, ANALYSIS OF DISTRIBUTION/PAYMENTS TO DI FFERENT PERSONS CANNOT BE ACCEPTED IN TO TO. ASSESSEE HAS INFLATED THE OUTGOINGS SUCH AS ASSISTANCE FEES, ANESTHETIC CHARGES, QUAKE DOCTORS CHARGES ETC ETC. 3. ASSESSEE HAS ACCEPTED SUCH INFLATION IN EXPENSES DURING REMAND PROCEEDINGS AND UTILIZATION OF SUCH SUM IN PAYMENT OF CONSTRUCTION EXPENSES TO THE EXTENT OF RS. 5,00,000/- ON BEING CONFRONTED WITH RECEIPT ISSUED BY ARCHITECT AND THUS SAID SUM OF RS.5,00,000/- BE KEPT AS ADDITION TO INCOME AS UNDI SCLOSED PROFESSIONAL INCOME, IF FOUND SUITABLE BY YOUR HONOUR. THE CIT(A) OBSERVED THAT ONCE THE AO HIMSELF ACCEPT ED THAT THERE IS UNDISCLOSED PROFESSIONAL INCOME OF RS. 5 LAC AS NOTED IN THE REMAND REPORT A BOVE, HE RESTRICTED THE ADDITION AT RS. 5 LAC. AGGRIEVED, REVENUE CAME IN APPEAL BEFORE US. 3 ITA NO. 509/K/2012 SHRI DIPANKAR BHATTACHARJEE AY:2005-06 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WHEN THE REMAND REPORT WAS CONFRONTED TO LD. SR. DR , SHE CONTESTED THE ADDITION FOR THE REASON THAT INTERPOLATION IS PERMITTED BUT ON FURTH ER QUERY THAT WHAT IS THE BASIS OF INTERPOLATION OF INCOME, SHE COULD NOT REPLY. AS SUCH, AS THE A O HIMSELF HAS COMPUTED THE UNDISCLOSED PROFESSIONAL INCOME AS DEPICTED IN THE REMAND PROCE EDINGS AT RS. 5 LAC AND WHICH IS ACCEPTED BY CIT(A), WE FIND NO REASON TO INTERFERE IN THE OR DER OF CIT(A). HENCE, WE CONFIRM THE SAME. 5. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER, 2013 . SD/- SD/- . . . . ''# ''# ''# ''# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 21ST NOVEMBER, 2013 12 '3' 4 JD.(SR.P.S.) $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT ACIT, CIRCLE-HALDIA 2 ./,- / RESPONDENT SHRI DIPANKAR BHATTACHARJEE, PO TAML UK, DIST. PURBA MEDINIPUR, PIN-721636 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA. <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .