ACIT,Circle-27,Kolkata, Kolkata V. Dr. Alakendu Ghosh, Kolkata

ITA 536/KOL/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7935 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 09-04-2012
• Court: TRIBUNAL
• Department Lawyers: K K DAS
• Assessee Lawyers: N O N E
• Section: 143(3); 133A; 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND ! ! ! ! , '# ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SANJAY ARORA, AM] $ $ $ $ / I.T.A NO. 535/KOL/2012 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2008-09 & $ $ $ $ / I.T.A NO. 536/KOL/2012 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2009-10 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. DR. ALA KENDU GHOSH CIRCLE-27, KOLKATA. (PAN: ADJPG8615R) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) FOR THE APPELLANT: SHRI K. K. DAS FOR THE RESPONDENT: N O N E DATE OF HEARING: 07.08.2012 DATE OF PRONOUNCEMENT: 07.08.2012 '. / ORDER IMMEDIATELY UPON CONCLUSION OF HEARING OF THIS APPE AL ON 7 TH AUGUST, 2012, THE BENCH PASSED THE FOLLOWING ORDER: 7 TH AUGUST, 2012 APPEALS OF REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT. DETAILED ORDER WILL FOLLOW. PER BENCH: BOTH THESE APPEALS BY REVENUE ARE ARISING OUT OF S EPARATE ORDERS OF CIT(A)-XIV, KOLKATA IN APPEAL NOS. 226 & 227/CIT(A)-XIV/KOL/10- 11 BOTH DATED 23.01.2012. ASSESSMENTS WERE FRAMED BY ACIT, CIRCLE-27, KOLKATA U/S. 147 R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEARS 2008-09 AND 2009- 10 VIDE HIS SEPARATE ORDERS BOTH DATED 30.12.2010. 2. THE ONLY COMMON ISSUE IN THESE TWO APPEALS OF R EVENUE IS AS REGARDS TO ESTIMATION OF PROFESSIONAL RECEIPT ESTIMATED BY AO AS A RESULT OF SURVEY U/S. 133A OF THE ACT. FORTHIS, REVENUE HAS RAISED FOLLOWING GROUNDS : GROUND FOR AY 2008-09: 2 ITA 535 & 536K/2012 DR. ALAKENDU GHOSH A.Y. 08-09 & 09-10 THE LD. CIT(A) ERRED IN ESTIMATING THE PROFESSIONA L RECEIPTS OF THE ASSESSEE WITHOUT ANY EMPIRICAL DATA AND FAILED TO APPRECIATE THAT TH E NUMBER OF PATIENTS AND FEES CHARGED AS COMPUTED BY THE ASSESSING OFFICER WAS ON THE BAS IS OF FACTUAL DATA COLLECTED FROM THE CLINICS AS A RESULT OF SURVEY U/S. 1 33A. HE ALSO F AILED TO APPRECIATE THAT THE ASSESSEE HAD NOT MAINTAINED THE BOOKS OF ACCOUNTS AS PRESCRIBED BY RULE 6F AND IN PARTICULAR THE DAILY CASE REGISTER IN FORM NO. 3C AND IN THEIR ABS ENCE, DATA COLLECTED FROM THE CLINICS WAS THE ONLY RELIABLE SOURCE OF COMPUTING THE ASSES SEES INCOME. GROUND FOR 2009-10 THE LD. CIT(A) ERRED IN ESTIMATING THE PROFESSIONA L RECEIPTS OF THE ASSESSEE WITHOUT ANY EMPIRICAL DATA AND FAILED TO APPRECIATE THAT TH E NUMBER OF PATIENTS AND FEES CHARGED AS COMPUTED BY THE ASSESSING OFFICER WAS ON THE BAS IS OF FACTUAL DATA COLLECTED FROM THE CLINICS AS A RESULT OF SURVEY U/S. 1 33A. HE ALSO F AILED TO APPRECIATE THAT THE ASSESSEE HAD NOT MAINTAINED THE BOOKS OF ACCOUNTS AS PRESCRIBED BY RULE 6F AND IN PARTICULAR THE DAILY CASE REGISTER IN FORM NO. 3C AND IN THEIR ABS ENCE, DATA COLLECTED FROM THE CLINICS WAS THE ONLY RELIABLE SOURCE OF COMPUTING THE ASSES SEES INCOME. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO IN AY 2008-09 ASSESSED ESTIMAT ED PROFESSIONAL INCOME AT RS.18,15,022/- AS AGAINST THE PROFESSIONAL INCOME DECLARED BY THE ASSESSEE AT RS.1,98,822/-. SIMILARLY, IN AY 2009-10, THE AO ESTIMATED THE PROFESSIONAL INCOME A T RS.20,55,220/- AS AGAINST THE DECLARED PROFESSIONAL INCOME OF RS.2,64,020/-. THE AO ASSES SED THE ESTIMATED PROFESSIONAL INCOME ON THE BASIS OF SURVEY PROCEEDINGS CONDUCTED BY THE DE PARTMENT U/S. 133A OF THE ACT ON 22.03.2010 AT DIFFERENT POLYCLINICS WITH WHICH ASSE SSEE WAS ATTACHED AND ON THE BASIS OF IMPOUNDED DOCUMENTS CONTAINING PATIENT APPOINTMENT DIARY. THE CIT(A) IN BOTH THE YEARS ESTIMATED THE PROFESIONAL INCOME AT RS.7,63,622/- I N AY 2008-09 AND AT RS.9,52,270/- IN AY 2009-10. IN AY 2008-09, THE CIT(A) TOOK THE BASIS IN PARA 7.1 TO 8.1 AS UNDER: 7.1. I HAVE GONE THROUGH THE CONTENTION OF BOTH T HE AO AND THE APPELLANT. THE ESTIMATION OF CONSULTATION FEES MADE BY THE A.O. IS HIGHLY ARBITRARY AND NOT BASED ON FACTS COLLECTED FROM OTHERS DURING THE FINANCIAL YEAR 201 0-11. THE A.O. APPEARS TO HAVE MADE A CARDINAL MISTAKE IN APPLYING THE RATE OF CONSULTA TION FEES EVEN IN EXCESS OF THAT RELEVANT TO FINANCIAL YEAR 2010-11 FOR THE ASSESSMENT OF INC OME OF FINANCIAL YEAR 2007-08 RELEVANT TO THE ASSESSMENT YEAR 2008-09. IT IS SEE N THAT M/S. NDMC HAD INFORMED THE A.O. THAT FEES FOR F.Y. 2010-11 WAS RS.500/-. THERE FORE, ESTIMATIORI OF FEES AT RATE OF RS.550/- FOR F.Y 2007-08 IS NOT FAIR AND T IS EXCE SSVE. WHER ON THE BASIS OF DATA OF A FEW DAYS OR A FEW MONTHS, AN ESTIMTATE OF NCOME IS MAD E FOR THE WHOLE YEAR, T OUGHT TO BE FAIR AND REASONABLE. THEREFORE, KEEPING IN VIEW THE CERTIFICATES GIVEN BY THE POLYCLINICS AND THE ARGUMENTS OF THE APPEL1ANT, THE ESTIMATION OF CONSULTATION FEES SHOULD HAVE BEEN CONSIDERED BY THE LD. A.O. AT THE RATE OF RS. 350/- PER PATIENT INSTEAD OF RS. 550/- AS TAKEN BY THE A.O. 7.2. IT IS TRUE THAT THE APPELLANT DID NOT MAINTAI N ANY BOOKS OF ACCOUNTS. IN ABSENCE OF BOOKS OF ACCOUNTS AND OTHER DOCUMENTARY EVIDENCE(S) , ONE HAS TO TAKE RECOURSE TO THE COURSE OF ESTIMATION WHICH S PRAGMATIC AND REASONA BLE. ACCORDINGLY, I ESTIMATE THE CONSULTATION FEES AT RS 350/- PER PATIENT INSTEAD O F RS 200/- AS DISCLOSED BY THE APPELLANT. 3 ITA 535 & 536K/2012 DR. ALAKENDU GHOSH A.Y. 08-09 & 09-10 8. BASED ON THE ABOVE DISCUSSION, THE A.O. IS DIRE CTED TO COMPUTE THE PROFESSIONAL INCOME AS UNDER THE PROFESSIONAL INCOME OF THE APPELLANT: EFFECTIVE NUMBER OF PATIENT EXAMINED ON ESTMATE A S DISCUSSED ABOVE 2408 X RS. 350/- = RS. 8,42,800.00 LESS : EXPENSES AS CLAIMED AND ALIOWED BY A.O= RS. 79,178.00 RS.7,63,622.00 8.1. ACCORDINGLY THE A.O. IS DIRECTED TO RESTRICT THE ESTIMATION OF PROFESSIONAL INCOME TO RS.7,63,822/-. HENCE, THE ADDITON OF RS.10,51,40 0/- (RS.18,15,022 7,63,622) IS DIRECTED TO BE DELETED OUT OF TOTAL ADDITION OF RS. 16,16,200/- MADE ON THIS ISSUE. THE BALANCE ADDITION OF RS.5,64,800/- IS CONFIRMED. ACC ORDINGLY GROUND NO-3 IS PARTLY ALLOWED. 4. IN AY 2009-10, THE CIT(A) TOOK THE BASIS IN PARA 9 TO 10.2 AS UNDER: 9. I HAVE GONE THROUGH THE CONTENTION OF BOTH THE AO AND THE APPELLANT. THE ESTIMATION OF CONSULTATION FEES MADE BY THE A.O. IS HIGHLY ARB ITRARY AND NOT BASED ON FACTS COLLECTED FROM OTHERS DURING THE FINANCIAL YEAR 2010-11. THE A.O. APPEARS TO HAVE MADE A CARDINAL MISTAKE IN APPLYING THE RATE OF CONSULTATION FEES E VEN IN EXCESS OF THAT RELEVANT TO FINANCIAL YEAR 2010-11 FOR THE ASSESSMENT OF INCOME OF FINANCIAL YEAR 2008-09 RELEVANT TO THE ASSESSMENT YEAR 2009-10. IT IS SEEN THAT M/ S. NDMC HAD INFORMED THE A.O. THAT FEES FOR F.Y. 2010-11 WAS RS.500/-. THEREFORE, ESTI MATIORI OF FEES AT RATE OF RS.600/- FOR F.Y 2008-09 IS NOT FAIR AND T IS EXCESSVE. WHEN O N THE BASIS OF DATA OF A FEW DAYS OR A FEW MONTHS, AN ESTIMTATE OF NCOME IS MADE FOR THE WHOLE YEAR, T OUGHT TO BE FAIR AND REASONABLE. THEREFORE, KEEPING IN VIEW THE CERTIFIC ATES GIVEN BY THE POLYCLINICS AND THE ARGUMENTS OF THE APPEL1ANT, THE ESTIMATION OF CONSU LTATION FEES SHOULD HAVE BEEN CONSIDERED BY THE LD. A.O. AT THE RATE OF RS.4350/- PER PATIENT INSTEAD OF RS. 600/- AS TAKEN BY THE A.O. 10. IT IS TRUE THAT THE APPELLANT DID NOT MAINTAIN ANY BOOKS OF ACCOUNTS. IN ABSENCE OF BOOKS OF ACCOUNTS AND OTHER DOCUMENTARY EVIDENCE(S) , ONE HAS TO TAKE RECOURSE TO THE COURSE OF ESTIMATION WHICH S PRAGMATIC AND REASONA BLE. ACCORDINGLY, I ESTIMATE THE CONSULTATION FEES AT RS.450/- PER PATIENT INSTEAD O F RS. 350/- AS DISCLOSED BY THE APPELLANT. 10.1. BASED ON THE ABOVE DISCUSSION, THE A.O. IS D IRECTED TO COMPUTE THE PROFESSIONAL INCOME AS UNDER THE PROFESSIONAL INCOME OF THE APPELLANT: EFFECTIVE NUMBER OF PATIENT EXAMINED 2385(AS DISCU SSED EARLIER) X FEES PER CONSULTATION @ RS.450/- (AS DISCUSSED) = 10,73,250 LESS : EXPENSES AS CLAIMED BY THE APPELLANT AND ALL OWED BY THE A.O. 1,20,980 9,52,270 10.2. ACCORDINGLY THE A.O. IS DIRECTED TO RESTRICT THE ESTIMATION OF PROFESSIONAL INCOME TO RS.9,52,270/-. HENCE, THE ADDITON OF RS.11,02,95 0/- (RS.20,55,220 RS. 9,52,270) IS DIRECTED TO BE DELETED OUT OF TOTAL ADDITION OF RS. 17,91,200/- MADE ON THIS ISSUE. THE BALANCE ADDITION OF RS.6,88,250/- IS CONFIRMED. ACC ORDINGLY, GROUND NO-2 IS PARTLY ALLOWED. AGGRIEVED AGAINST ESTIMATION IN BOTH THE YEARS REV ENUE IS AN APPEALS BEFORE US. 4 ITA 535 & 536K/2012 DR. ALAKENDU GHOSH A.Y. 08-09 & 09-10 4. WE FIND THAT NOW REVENUE HAS NOT POINTED OUT WHA T IS THE DEFECT IN ESTIMATION OF CIT(A). ON A SPECIFIC QUERY FROM THE BENCH, LD. DR COULD NOT POINT OUT ANY DEFECT IN THE FINDINGS OF THE CIT(A) IN BOTH THE YEARS RATHER WHE N IT WAS POINTED OUT THAT THE CIT(A) HAS TABULATED THE FIGURES CORRECTLY QUA HE COULD NOT CO NTROVERT THE SAME. IN SUCH CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE CIT(A) HAS RIGHTLY ESTIMAT ED THE PROFESSIONAL RECEIPTS IN BOTH THE YEARS AND WE CONFIRM THE SAME. BOTH THESE APPEALS OF REV ENUE ARE DISMISSED. 5. IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE D ISMISSED. 6. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- ! ! ! ! , '# , (SANJAY ARORA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( /# /# /# /#) )) ) DATED: 7TH AUGUST, 2012 01 %2 3 JD.(SR.P.S.) '. 4 ,5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT ACIT, CIRCLE-27, KOLKATA. 2 ,-*+ / RESPONDENT DR. ALAKENDU GHOSH, AA/270, SALT LAKE , KOLKATA-700 064. 3 . .% ( )/ THE CIT(A), KOLKATA 4. .% / CIT, KOLKATA 5 . >? ,% / DR, KOLKATA BENCHES, KOLKATA -5 ,/ TRUE COPY, '.%@/ BY ORDER, /ASSTT. REGISTRAR .