Dr. K.E. Moorthy, Pathanamthitta V. DCIT, Kollam

ITA 637/COCH/2008

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7393 (ITAT-COCHIN)
• Duration Of Justice: 11 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2000-2001
• Appeal Filed On: 08-05-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: P VENUGOPAL
• Keywords: Depreciation; Salary income; Difference of opinion
• Section: 271(1)(c); 250; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFOR E S/ SHRI CHANDRA POOJARI , AM & GEORGE GEORGE K., J M I .T . A. NO S . 637 TO 64 3 / C OCH/ 2008 ASSESSMENT YEAR S : 2000 - 01 TO 2006 - 07 I.T.A. NOS. 246 TO 248/COCH/2019 ASSESSMENT YEARS : 2000 - 01 TO 2002 - 03 DR. K.E. MOORTHY, THUNGA, CM HOSPITAL ROAD, PANDALAM - 689 501. [PAN: AAIPM9249L ] VS. THE DEPUTY COM MISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOLLAM. (ASSESSEE - APPELLANT) (REVENUE - RESPONDENT) A SSESSEE BY SHRI P. VENUGOPAL, CA REVENUE BY SMT. A.S. BINDHU, SR. DR D ATE OF HEARING 16/07/2019 DATE OF PRONOUNCEMENT 18 / 0 7 /201 9 O R D E R PER CHANDRA POOJARI, AM: TH E S E APPEAL S FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF THE CIT(A) , KOCHI AND PERTAIN TO THE ASSESSMENT YEAR S 20 0 0 - 01 TO 2 006 - 07. THE FIRST SET OF 7 APPEALS BY THE ASSESSEE IS WITH REGARD TO QUANTUM ADDITI ONS IN THESE ASSESSMENT YEARS. THE SECOND SET OF THREE APPEALS BY THE ASSESSEE IS RELATED TO SUSTENANCE OF PENALTY LEVIED U/S. 271(1)(C) OF THE ACT BY THE CIT(A) FOR THE ASSESSMENT YEAR S 2000 - 01 TO 2002 - 03. I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 2 ITA NOS. 637 TO 643/COCH/2008 : AYS 200 0 - 01 TO 2006 - 07 2. THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINS T THE DIFFERENT ORDERS OF THE CIT(A) - I, KOCHI DATED 04/03/2008. 2.1 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEALS: 1. T HE ORDER OF THE CIT(A) MADE U/S. 250 OF THE ACT DATED 04/03/2008 IN RESPECT OF THE ASSESSMENT YEAR 2000 - 01, SERVED ON THE APPELLANT ON 14/03/2008, IN SO FAR AS IT RELATES TO THE CONFIRMATION OF THE ACTION OF THE ASSESSING OFFICER, IS AGAINST THE PROVISIONS OF LAW AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE CIT(A) WAS HIGHLY UNJUSTIFIED IN CONFIRMING THE ASSESSMENT OF RS.5,23,910/ - UNDER THE HEAD SALARY WITHOUT CONSIDERING THE SUBMISSION S OF THE APPELLANT THAT THE SAME INCLUDES PROFESSIONAL RECEIPTS, THE NET INCOME OF WHICH IS ASSESSABLE UNDER THE HEAD INCOME FROM PROFESSION AT RS.2,40,000/ - . THE FINDING OF THE CIT(A) THAT THE INCOME EARNED BY THE APPELLANT FROM THE EXERCISE OF PROFESSION AND FROM SALARY IS ASSESSABLE ONLY UNDER THE HEAD INCOME FROM SALARY IS INCORRECT AND AGAINST THE PROVISION OF LAW. 3. THE CIT(A) OUGHT TO HAVE FOUND THAT THE APPELLANT IS ENTITLED ONLY FOR 20% OF TOTAL FEE COLLECTION WHICH IS INCLUSIVE OF SALARY ALR EADY RECEIVED BY HIM AND THUS HE WENT WRONG IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN ASSESSING THE ENTIRE AMOUNT OF RS.5,23,910/ - UNDER THE HEAD SALARY WITHOUT DEDUCTING THE AMOUNT OFFERED UNDER THE HEAD SALARY. THE CIT(A) WENT WRONG IN PICKIN G ONE SENTENCE FROM THE SWORN STATEMENT TO CONFIRM THE ASSESSMENT. IT IS SUBMITTED THAT READING THE STATEMENT AS A WHOLE AND STATEMENTS ELSEWHERE, IT IS ABUNDANTLY CLEAR THAT THE APPELLANT INTENDED TO PUT ON RECORD HIS RECEIPTS AS 20% OF THE TOTAL SURGERY INCOME GENERATED BY THE HOSPITAL. THIS WAS INCLUSIVE OF THE FIXED AMOUNT PAID TO THE APPELLANT ON A MONTHLY BASIS AS SALARY. 4. THE CIT(A) ERRED IN NOT TAKING INTO CONSIDERATION THE SUBMISSION OF THE APPELLANT THAT THE APPELLANT HAD RECEIVED ONLY A SUM OF RS.3,00,000/ - DURING THE YEAR ENDED 31/03/2000 AS PER THE CASH FLOW STATEMENT FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WHICH WAS NOT DISPUTED BY THE ASSESSING OFFICER, OF WHICH A SUM OF RS.60,000/ - HAD BEEN CLAIMED TOWARDS EXPENDITURE INCIDEN TAL TO EARNING PROFESSIONAL INCOME AND THUS ONLY A SUM OF I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 3 RS.2,40,000/ - IS ASSESSABLE UNDER THE HEAD INCOME FROM PROFESSION AS AGAINST RS.5,23,910/ - ASSESSED UNDER THE HEAD SALARY. 3. SINCE THE FACTS IN ALL THE CASES ARE SIMILAR, WE CONSIDER THE FACTS AS NARRATED IN ITA NO. 637/COCH/ 2008. THE ASSESSEE WAS WORKING WITH CHITRA MULTI SPECIALITY HOSPITAL, PANDALAM. A SEARCH UNDER SECTION 132 WAS CONDUCTED IN THE ABOVE HOSPITAL AS WELL AS THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 06/09/2005. THE ASSESS EE FILED THE RETURN OF INCOME FOR THIS ASSESSMENT YEAR ON 27/09/2006 DECLARING A TOTAL INCOME OF RS.4,20,757/ - AND THE ASSESSING OFFICER FIXED THE TOTAL INCOME AT RS.7,24,670/ - . THE ASSESSING OFFICER NOTICED THAT IN THE ORIGINAL RETURN OF INCOME ALSO, THE ASSESSEE HAD RETURNED THE SAME AMOUNT AS SALARY INCOME FROM N.S.S. MEDICAL MISSION HOSPITAL, PANDALAM AND THAT IN THE ORIGINAL RETURN, HE HAD NOT RETURNED ANY PROFESSIONAL INCOME. IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S. 153A, THE ASSESSE E HAD SHOWN GROSS PROFESSIONAL RECEIPT OF RS.3,00,000/ - FROM RS. 60000/ - AS EXPENDITURE AND DECLARED NET PROFESSIONAL INCOME OF RS.2,40,000/ - . THE ASSESSING OFFICER NOTICED THAT DOCUMENT NO. KEM - 9, SEIZED FROM THE PREMISES OF THE ASSESSEE AS A RESULT OF S EARCH SHOWED THAT ASSESSEE HAD RECEIVED RS.5,23,910/ - BEING 20% OF RS.26,19,550/ - RECEIVED FROM THE ABOVE HOSPITAL. THE ASSESSING OFFICER NOTICED THAT SINCE THE ASSESSEE WAS EMPLOYED ON A REGULAR BASIS IN THE HOSPITAL TILL HE LEFT THE HOSPITAL IN MARCH, 2 004, THE ABOVE RECEIPT OF RS.5,23,910/ - ALSO HAS TO BE TREATED AS SALARY INCOME AND THEREFORE, ADDED RS.5,23,910/ - AS SALARY INCOME OF THE ASSESSEE. I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 4 3.1 HOWEVER, SEIZED MATERIAL WAS AVAILABLE ONLY FOR 27 MONTHS COVERING THE ASSESSMENT YEARS 2000 - 01 TO 2 002 - 03. ON THE BASIS OF TOTAL RECEIPTS FOR 27 MONTHS, THE ASSESSING OFFICER WORKED OUT THE RECEIPTS FOR EACH MONTH AT RS.42,803/ - AND ACCORDINGLY, COMPUTED THE UNDISCLOSED INCOME UNDER THE HEAD SALARY FOR THE ASSESSMENT YEARS 2000 - 01 TO 2002 - 03, 2003 - 04 AND 2004 - 05 BY CHANGING THE HEAD FROM INCOME FROM PROFESSION TO INCOME FROM SALARY. 3.2 FOR THE ASSESSMENT YEAR S 2005 - 06 AND 2006 - 07 , THE ASSESSING OFFICER STATED THAT THE DECLARATION OF INCOME RECEIVED FROM CHITRA MULTI SPECIALITY HOSPITAL UNDER THE HEAD PROFESSION IS NOT CORRECT AND IT IS INCOME UNDER THE HEAD SALARY ONLY. THUS, THE ASSESSING OFFICER CONSIDERED SALARY ON THE BASIS OF SWORN STATEMENT RECORDED FROM THE ASSESSEE ON 06/09/2005 WHEREIN HE REITERATED THAT HE WAS GETTING SALARY INCOM E FROM CHITRA MULTI SPECIALITY HOSPITAL, PANDALAM IN WHICH WAS WORKING AS CONSULTANT SURGEON. THE FIRST PART OF ANSWER TO QUESTION NO. 1 OF THE SWORN STATEMENT OF THE ASSESSEE READS AS UNDER: MY NAME IS DR. K.E. MOORTHY. I AM WORKING AS A CONSULTANT SU RGEON OF CHITRA MULTI SPECIALITY HOSPITAL, PANDALAM SINCE MARCH 2004. I AM GETTING AN AMOUNT OF RS.25000/ - PER MONTH AS SALARY FROM THE HOSPITAL.. . THE ANSWER TO QN. NO. 7 OF THE SWORN STATEMENT IS THAT I AM GETTING RS.35000/ - AS UNACCOUNTED MONEY OTHER THAN THE SALARY AND PERKS RECEIVED FROM THE HOSPITAL.., IN ANSWER TO QN. NO. 11 DR. MOORTHY ADMITS HAVING RECEIVED (I) SALARY OF RS.25000/ - PER MONTH (II) UNACCOUNTED RS.35000/ - PER MONTH, (III) PERKS FROM OTHER INSTITUTIONS RS.8000/ - , (IV) HOUSE RENT OF RS.3500, TOTAL RS.71500/ - FROM CHITRA MUL TI SPECIALIT Y HOSPITAL, PANDALAM. I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 5 3.3 THUS, FOR THE ASSESSMENT YEARS 2005 - 06 AND 2006 - 07, HE DETERMINED THE UNDISCLOSED INCOME AT RS.8,58,000/ - . HE ALSO CHANGED THE HEAD OF INCOME FROM INCOME FRO M PROFESSION TO INCOME FROM SALARY FOR ALL THE ASSESSMENT YEARS. 4. ON APPEAL, THE CIT(A) REFERRED TO SECTION 17 WHICH DEFINES SALARY TO INCLUDE INTER ALIA THE FEES, COMMISSIONS, PERQUISITES OR PROFITS IN LIEU OF OR IN ADDITION TO ANY SAL ARY OR WAGES. IN THE CASE OF THE ASSESSEE, THE CIT(A) OBSERVED THAT SHARE OF OPERATION CHARGES CALCULATED AT A FIXED PERCENTAGE WAS PAID TO THE ASSESSEE AS PER THE TERMS FIXED BY THE EMPLOYER. THEREFORE, ACCORDING TO THE CIT(A), SUCH RECEIPTS ALSO FORMS PART OF SALARY ONLY/ ACCORDING TO THE CIT(A), THE ASSESSEE HAS TO PROVE THAT THE GROSS RECEIPT OF RS.5,23,910/ - INCLUDED SALARY PORTION. MOREOVER, THE CIT(A) OBSERVED THAT THE ASSESSEE HIMSELF IN ANSWER TO QUESTION NO. 8 IN THE SWORN STATEMENT RECORDED ON 06/09/2005 HAS STATED THAT EACH DOCTOR IS GIVEN SUCH KIND OF REGISTERS SO THAT THEY CAN CLAIM 20% OF THE AMOUNT COLLECTED AS PERKS IN ADDITION TO THE SALARY. THEREFORE, THE CIT(A) CONFIRMED THE ADDITION OF THE ENTIRE RECEIPT TO THE SALARY INCOME OF THE ASSESSEE. 5. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. THE ASSESSEE SUBMITTED THAT RS.5,23,910/ - WAS THE TOTAL RECEIPT OF THE ASSESSEE FOR THIS YEAR AND OUT OF THIS RS.3 LAKHS WAS GROSS PROFESSIONAL INCOME AND THAT AFTER CLAIM OF EXPENDITU RE OF RS.60,000/ - , RS.2,40,000/ - WAS HIS NET PROFESSIONAL INCOME AND THE ASSESSEE WAS ENTITLED TO ONLY 20% OF THE FEE COLLECTED BY THE HOSPITAL IN RESPECT OF SURGERIES RENDERED BY HIM AND THAT OUT OF THE TOTAL ENTITLEMENT OF 20%, THE AMOUNT ALREADY I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 6 PAID D URING THE YEAR TOWARDS SALARY WILL BE DEDUCTED AND THE BALANCE DISBURSED AS PROFESSIONAL FEE AND THAT THE ACTION OF THE ASSESSING OFFICER IN ASSESSING A SUM OF RS.5,23,910/ - OVER AND ABOVE THE SALARY INCOME OF RS.1,52,627/ - HAD RESULTED IN DUPLICATION. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. FOR THE ASSESSMENT YEAR 2000 - 01 TO 2001 - 02, THERE WAS SEIZED MATERIAL SHOWING THE COLLECTION OF UNACCOUNTED RECEIPTS IN THE FORM OF REGISTER FOUND IN TH E DOCUMENT MARKED AS KEM - 9. IT SHOWED THAT THE COLLECTION OF FEES FOR 27 MONTHS. THE ASSESSEE ALSO CONFIRMED THE SAME BY WAY OF STATEMENT RECORDED U/S. 132(4) OF THE ACT ON 06/09/2005 TO QUESTION NO. 8 WHICH READS AS FOLLOWS: QN. 8 DURING THE COURSE OF SEARCH CONDUCTED TODAY IN YOUR RESIDENTIAL PREMISES, A GENERAL SURGEON REGISTER (MARKED KEM - 9) WAS FOUND. THIS REGISTER BELONGS TO NSS MEDICAL MISSION HOSPITAL, PANDALAM. WHAT IS THE PURPOSE OF KEEPING THE REGISTER UNDER YOUR CUSTODY? ANS: EACH DOCTOR IS GIVEN SUCH KIND OF REGISTERS SO THAT TH EY CAN CLAIM 20% OF THE AMOUNT COLLECTED AS PERKS IN ADDITION TO THE SALARY. 6.1 FURTHER, THE ASSESSING OFFICER ESTIMATED THE INCOME ON THE BASIS OF SEIZED MATERIAL. IN OUR OPINION, THERE IS NO ERROR IN THE ESTIMATION OF INCOME AND THE ADDITION IS CONF IRMED. THE ABOVE VIEW IS ALSO SUPPORTED BY THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MERIYA HOTEL (332 ITR 537) WHEREIN THERE WAS ADMISSION BY THE MANAGING PARTNER THAT 20% OF THE SALES TURNOVER WAS SUPPRESSED AND ONLY 80% OF THE SALES TURNOVER WAS RECORDED IN THE BOOKS OF ACCOUNT WHICH WAS THE PRACTICE FROM THE I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 7 BEGINNING. HENCE, IN THAT CASE, IT WAS PRESUMED THAT THERE WAS WILLFUL CONCEALMENT OF INCOME FOR ALL THE ASSESSMENT YEARS. SIM ILARLY, WE PLACE RELIANCE ON THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF TRAVANCORE DIAGNOSTICS P. LTD. VS. ACIT (390 ITR 167) WHEREIN IT WAS HELD THAT WHEN SUPPRESSION HAD BEEN FOUND FROM THE DOCUMENTS AND THE STATEMENT ON RECORD, THE AS SESSING OFFICER WAS COMPLETELY JUSTIFIED IN ADOPTING THOSE FIGURES FOR THE WHOLE YEAR AND FOR THE NEXT YEAR WHICH WAS BASED ON SOUND RATIONALE, SINCE FROM THE STATEMENT ON BEHALF OF THE ASSESSEE, THE SUPPRESSION WAS FOUND TO BE CONTINUED AND THERE WAS ADM ISSION BY THE PARTNERS OF THE ASSESSEE - FIRM AND THE ASSESSEE HAD FOLLOWED UNIFORM SYSTEM OF SUPPRESSION OF SALES. IF THE INCOME IS TO BE CONSIDERED UNDER THE HEAD INCOME FROM PROFESSION, 25% OF THE GROSS INCOME IS TO BE CONSIDERED AS AN EXPENDITURE TO EARN THIS INCOME. 6. 2 ON THE BASIS OF THE SEIZED MATERIAL SUPPORTED BY STATEMENT RECORDED U/S. 132(4), THE ASSESSING OFFICER ESTIMATED THE INCOME F OR THREE YEARS. IN OUR OPINION, THERE IS NO ERROR IN ESTIMATING THE I N CO M E O THE BASIS OF THE SEIZED M ATERIAL. HOWEVER, WHENEVER THE ASSESSING OFFICER ESTIMATED THE INCOME, THE GROSS INCOME CANNOT BE ADDED TO THE ASSESSEES UNDISCLOSED INCOME OF THE ASSESSEE. THERE IS EXPENDITURE TO EARN THE INCOME. ACCORDINGLY, WE ESTIMATE IT REASONABLY AT 25% AS EXPEN DITURE TO EARN THE INCOME AND IT IS ALSO PROFESSIONAL INCOME AND CANNOT BE CONSIDERED AS INCOME FROM SALARY. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO GIVE DEDUCTION TOWARDS EXPENDITURE TO EARN UNDISCLOSED PRO FESSIONAL INCOME AT 25% AND BALANCE 75% O F IT IS TO BE CHARGED AS INCOME FROM PROFESSION . I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 8 6 .3 COMING TO THE ASSESSMENT YEARS 2005 - 06 AND 2006 - 07, THE ASSESSING OFFICER ESTIMATED THE INCOME ON THE BASIS OF SWORN STATEMENT RECORDED U/S. 132(4) OF THE ACT WHICH READS A S UNDER: MY NAME IS D R. K.E. MOORTHY. I AM WORKING AS A CONSULTANT SURGEON OF CHITRA MULTI SPECIALITY HOSPITAL, PANDALAM SINCE MARCH 2004. I AM GETTING AN AMOUNT OF RS.25000/ - PER MONTH AS SALARY FROM THE HOSPITAL.. . THE ANSWER TO QN. NO. 7 OF THE SWORN STATEMENT IS THA T I AM GETTING RS.35000/ - AS UNACCOUNTED MONEY OTHER THAN THE SALARY AND PERKS RECEIVED FROM THE HOSPITAL.., IN ANSWER TO QN. NO. 11 DR. MOORTHY ADMITS HAVING RECEIVED (I) SALARY OF RS.25000/ - PER MONTH (II) UNACCOUNTED RS.35000/ - PER MONTH, (II I) PERKS FROM OTHER INSTITUTIONS RS.8000/ - , (IV) HOUSE RENT OF RS.3500, TOTAL RS.71500/ - FROM CHITRA MUL TI SPECIALIT Y HOSPITAL, PANDALAM. IN OUR OPINION, THE UNDISCLOSED INCOME OF RS.8,58,000/ - CONSIDERED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEARS 2005 - 06 AND 2006 - 07 IS TO BE TREATED AS INCOME FROM PROFESSION INSTEAD OF SALARY INCOME AND OUT OF THIS, THE ASSESSEE IS ENTITLED TO 25% TOWARDS EXPENDITURE INCURRED FOR EARNING THIS INCOME AS IN OTHER ASSESSMENT YEARS. THUS, THE APPEALS OF THE ASSESSEE IN ITA NOS. 637 TO 643/COCH/2008 ARE PARTLY ALLOWED. I.T.A. NOS. 246 - 248/COCH /2019 : AY.S 2000 - 01 TO 2002 - 03 7. THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE CIT(A) - III, KOCHI DATED 11/01/2019 CONFIRMING THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT AND PERTAIN TO THE ASSESSMENT YEARS 2000 - 01 TO 2002 - 03. 7.1 THERE WAS A DELAY OF 04 DAYS IN FILING THESE APPEALS BEFORE THE TRIBUNAL. THE LD. AR HAS FILED CONDONATION PETITION ACCOMPANIED BY AFFIDAVIT WHER EIN IT WAS STATED I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 9 THAT THE ORDER OF THE CIT(A) DATED 11/01/2019 WAS RECEIVED BY HIM ON 03/02/2019 AND AS SUCH HE SHOULD HAVE FILED THE APPEAL ON OR BEFORE 03/04/2019. THE LD. AR SUBMITTED THAT SINCE THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WAS BUSY WITH FILING OF RETURNS, ADVANCE TAX WORK ETC., THERE WAS SOME DELAY. MOREOVER, HE HAD LOST HIS BROTHER ON 23/03/2019 AND HE HAS ONLY TWO DAUGHTERS AND HIS FATHER WAS OVER 84 YEARS . HE HAD TO BE AWAY AT THIRUNELVELI IN CONNECTION WITH VARIOUS RITUALS CONN ECTED WITH HIS BROTHERS DEATH AND HENCE, THERE WAS DELAY OF FOUR DAYS. IT WAS THEREFORE REQUESTED THAT THE DELAY BE CONDONED AND THE APPEALS MAY BE ADMITTED. 7.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE REASONS ADVANCED BY THE ASSESS EE FOR FILING THE APPEAL S BELATEDLY BEFORE THIS TRIBUNAL. WE ARE SATISFIED WITH THE REASONS EXPLAINED BY THE ASSESSEE FOR FILING THE APPEAL BELATEDLY. ACCORDINGLY, WE CONDONE THE DELAY OF FOUR DAYS IN FILING THE APPEAL S AND ADMIT THE APPEAL S FOR ADJUDICA TION. I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 10 8. THE ASSESSEE HAS RAISED THE FOLLOWING COMMON GROUNDS OF APPEAL S: 1. THE LEARNED CIT ( A) ERRED IN CONFIRMING THE ORDER OF AO IN THE LEVY OF PENALTY 2. THE AO ERRED IN ESTIMATING THE INCOME AT 20% BASED ON ANSWER TO Q - 8 GIVEN IN 2005 AN D APPLIED IT TO ASST. YEARS 2000 - 01 TO 2002 - 03. 3. THE AO ERRED IN HOLDING THAT THE ENTIRE ENTRY IN THE SEIZED MATERIALS RELATES TO THE PROCEDURE PERFORMED BY THE APPELLANT. 4. THE AO ERRED IN HOLDING THAT PERKS WAS IN ADDITION TO SALARY IN ALL THE EARLIE R YEARS. WHEN THERE WAS NO SPECIFIC QUESTION / MENTION TO THIS EFFECT IN THE STATEMENT RECORDED ON OATH AT THE TIME OF SEARCH. 5. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS HUMBLY PRAYED THAT THE LEVY OF PENALTY MAY BE C ANCELLED, AND JUSTICE RENDERED TO THE APPELLANT. 9. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DOCTOR WHO WAS WORKING IN CHITRA MULTI SPECIALITY HOSPITAL, PANDALAM WHEN A CONSEQUENTIAL SEARCH TOOK PLACE ON THE RESIDENTIAL PREMISES OF THE ASSESSEE . SOME MATERIALS WERE SEIZED BASED ON WHICH A NOTICE U/S 153 A WAS ISSUED. THE ASSESSEE H AD FILED HIS RETURN OF INCOME ON 18.09. 2000 DECLARING AN INCOME OF RS. 1 , 80 , 757 / - AND ON RECEIPT OF THE NOTICE THE ASSESSEE FILED A RETURN OF INCOME DECLARING A SUM OF RS. 4 , 20 , 757 / - AND THE TAX DUE THERE ON WAS PAID. THE ASSESSMENT WAS TAKEN UP FOR SCRUTINY AND THE ASSESSING OFFICER COMPLETED U/S. 153 BY MAKING AN ADDITION OF RS. 2 , 83 , 910 / - AND DENIED THE CLAIM FOR STAN DARD DEDUCTION AMOUNTING TO RS. 20 , 000 / - . THE ASSESSEE HAD FILED AN APPEAL AGAINST THE ORDER OF ASSESSMENT AND ORDER OF CIT(A) BEFORE THE TRIBUNAL AND THE SAME IS PENDING. IN THE MEANTIME , THE ASSESSING OFFICER ISSUED NOTICE U /S . 271(1)( C) OF THE ACT DT.30.03.2009 AND IMPOSED A PENALTY OF RS. 1 , 00 , 290 / - BEING 100% OF THE TAX ALLEGED TO BE EVADED. I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 11 10. ON APPEAL, THE CIT(A) OBSERVED THAT S IMILAR ARGUMENTS WERE GIVEN BY THE ASSESSING OFFICER FOR A.Y.S 2001 - 02 AND 2002 - 03. THE CIT(A) OBSERVED THAT DURING THE COURSE OF SEARCH TWO IMPORTANT DOCUMENT S KEM - 17 AND KE M - 9 WERE SEIZED WHICH RELATE TO THE PERIOD FROM NOVEMBER 1998 TO JUNE 2001 WHICH CLEARLY ESTABLISHED THAT 20% OF THE TOTAL RECEIPTS OF THE HOSPITAL WERE PASSED ON TO THE ASSESSEE AS REMUNERATION. HOWEVER , ACCORDING TO THE CIT(A), FOR A.Y.S 2003 - 04 & 2004 - 05 THE REMUNERATION RECEIVED BY THE ASSESSEE ON ACCOUNT OF WORKING IN THE NSS MEDICAL MISSION HOSPITAL PANDALAM WAS COMPUTED AT 20 % OF THE RECEIPTS OF THE HOSPITAL AS IN THE EARLIER THREE ASSESSMENT YEARS. THE AO'S CONTENTION HAS BEEN FURTHER SUPPLEMENTED BY THE STATEMENT OF THE ASSESSEE RECORDED ON 06.09.2005 , WHEREIN THE ASSESSEE HA D EXPLICITLY STATED THAT HE WAS CLAIMING 20 % OF THE HOSPITAL'S RECEIPTS AS PERKS IN ADDITION TO SALARY . THE CIT(A) CONFIRMED THE ESTIMATION OF THIS REMUNERATION BY THE ASSESSI NG OFFICER A S A PERQUISITE IN THE HANDS OF THE ASSESSEE AND T REATED THE SAME AS A PART OF THE SALARY INCOME BECAUSE OF THE EMPLOYER - EMPLOYEE RELATIONSHIP EXISTING BETWEEN THE HOSPITAL AND THE ASSESSEE. THOUGH THE ADDITIONS H AD BEEN UPHELD IN FIRST APPEAL, THE CIT(A) HELD THAT IMPOSING OF PENALTY U/S 271(1) FOR A . Y .S 2003 - 04 & 2004 - 05 WAS NOT LEGALLY MAINTAINABLE AS IT WAS BASED ON THE ESTIMATION ARISING OUT OF THE EXTRAPOLATION OF THE UNDISCLOSED INCOME IN THE EARLIER YEARS. HENCE , THE CIT(A) DELETED THE PENALTY FOR A . Y .S 2003 - 04 & 2004 - 05 AND CONFIRMED THE IMPOSITION OF PENALTY FOR A . Y .S 2000 - 01 TO 2002 - 03 . I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 12 11. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR SUBMITTED THAT THE SWORN STATEMENT WAS TAKEN FROM THE ASSESSEE ON 6.9.2005, WH EN THE ASSESSEE HAD LEFT NSS MEDICAL MISSION HOSPITAL. THE STATEMENT GIVEN BY THE ASSESSEE DOES NOT SPECIFY THAT THE ASSESSEE WAS ENTITLED TO 20% OF COLLECTION OVER AND ABOVE THE SALARY FOR ASST. YEAR S 2000 - 01 TO 2004 - 05 . IT WAS SUBMITTED THAT IN THE A SS ESSMENT ORDER, THE ASSESSING OFFICER HA D ONLY PRESUMED THAT THE ASSESSEE WOULD HAVE RECEIVED 20% OF THE GROSS COLLECTIONS OVER AND ABOVE THE SALARY IN ALL THE YEARS AND COMPLETED THE ASSESSMENT S MEANING THEREBY THE ADDITION S MADE IN THE ASSESSMENT S ARE ONL Y AN ESTIMATE. THE LD. AR SUBMITTED THAT IF THE SEIZED MATERIAL MARKED 'KEM 9' IS TO BE TAKEN AS THE COLLECTION OF THE HOSPITAL RELATABLE TO THE ASSESSEE, T HEN THE SAID COLLECTION WILL HAVE TO BE SEGREGATED AS ONE ATTRIBUTABLE TO THE SERVICE OF THE ASSESSE E HIMSELF AND THE BALANCE ATTRIBUTABLE TO THE SERVICE OF THE HOSPITAL IN PROVIDING PARA MEDICAL SERVICES, ICU CHARGES, OPERATION THEATRE CHARGES AND A HOST OF OTHER SERVICES AND ONLY ON THAT PORTION OF THE PROFESSIONAL SERVICE OF THE ASSESSEE, PERCENTAGE O F THE SAME SHOULD BE TAKEN AS HIS INCOME AND NOT A PERCENTAGE OF THE TOTAL COLLECTION AS HAS BEEN DONE BY ASSESSING OFFICER IN THE INSTANT CASE. THE ASSESSMENT ORDER IS PASSED WITHOUT VERIFICATION OF THE SAME. 11.1 ACCORDING TO THE LD. AR, THERE WAS NOT MUCH INCREASE IN THE SALARY OF THE ASSESSEE. SALARY OF RS. 12000 PER MONTH IN THE ASST. YEAR 2000 - 01 PLUS SOME ALLOWANCES WHICH INCREASED TO 12300 PLUS SURRENDER LEAVE PLUS ALLOWANCE IN 2001 - 02, RS. 12600 IN 2002 - 03 AND SO ON. THIS MEANS THE ASSESSEE WAS COMPENSATED BY GRADUAL INCREASE IN PERCENTAGE OF GROSS COLLECTION WHICH WAS 20% IN 2005 OR IN I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 13 MARCH 2004 AT THE TIME OF LEAVING NSS MEDICAL MISSION. IT WAS SUBMITTED THAT W HEN THIS BE THE FACTUAL POSITION TO MAKE AN ASSESSMENT @20% SINCE 2001 - 02 EXCLUSIVE OF SALARY IS ONLY A HIGH PITCHED ESTIMATE AND LEVY OF PENALTY BASED ON THE SAID ORDER IS NOT FACTUALLY CORRECT. 11.2 MOREOVER , IT WAS SUBMITTED THAT THE PERCENTAGE OF COLLECTION DUE TO THE DOCTOR WHICH WAS ORIGINALLY INCLUSIVE OF SALARY, HAS OVER A PER IOD OF YEARS BEEN, MADE IN ADDITION TO SALARY WHICH WAS THE POSITION AT THE TIME OF SEARCH OR AT BEST AT THE TIME OF LEAVING THE HOSPITAL IN FEBRUARY 2004. IT WAS SUBMITTED THAT U SUALLY SOME PROFESSIONALS WER E PAID INITIALLY BY WAY OF A FIXED SUM AS SALARY AND THE BALANCE AS PERCENTAGE OF COLLECTIONS, SO THAT THE HOSPITAL MA DE SURE THAT HE WA S WORTH THE SUM PAID, AND AT THE SAME TIME THE PROFESSIONAL IS SURE OF GETTING A FIXED SUM FOR HIS MONTHLY MAINTENANCE. THIS SHOULD BE THE CASE WITH THE ASSESSEE ALSO, GOING BY THE SALARY PAID TO THE ASSESSEE REMAINING ALMOST CONSTANT OVER THE PERIOD UNDER CONSIDERATION. 11.3 . IT WAS SUBMITTED THAT F OR ASST. YEAR 2002 - 03 TO 2004 - 05 ASSESSING OFFICER HAS CALCULATED A FIGURE BASED ON AN AVERAGE WORKED OUT FROM THE COLLE CTION OF NOVEMBER 1998 TO JUNE 2001. HERE AGAIN , ACCORDING TO THE LD. AR, THE ADDITION MADE BY THE ASSESSING OFFICE CALCULATED BASED ON COLLECTION DURING THE PERIOD FROM NOVEMBER 1998 TO JUNE 2001 FOR ASSESSMENT OF INCOME OF 2002 - 03 TO 2004 - 05 WAS NOT BASE D ON ANY CONCLUSIVE EVIDENCE BUT IS ONLY AN ESTIMATE AND HENCE THE LEVY OF PENALTY WAS NOT WARRANTED I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 14 11.4 IT WAS SUBMITTED THAT THE ASSESSEE IN ADDITION TO HIS NORMAL DUTY HA D DONE SOME MORE PROFESSIONAL ASSIGNMENTS FOR WHICH HE WAS PAID A PERCENTAGE OF THE COLLECTION, WHICH IS ONLY A PROFESSIONAL INCOME. BUT THE ASSESSING OFFICER HA D FOR SOME REASON CONSIDERED IT AS SALARY AND THAT ON THIS COUNT HA D DEPRIVED THE BENEFIT OF STANDARD DEDUCTION ALLOWABLE U/S 16(III) AMOUNTING TO RS. 20000, IN ASSESSMENT YEA RS 2000 - 01, 2001 - 02 AND RS. 25000 IN 2002 - 03 AND 2003 - 04 AND RS. 30000 IN ASST. YEAR 2004 - 05 WHICH HAS ALSO BEEN CONSIDERED BY ASSESSING OFFICER AS CONCEALMENT FOR LEVY OF PENALTY WHICH IS AGAINST THE PROVISION SECTION 271 (1) (C). 11.5 IT WAS SUBMITT ED THAT THE ASSESSEE H AD IN ADDITION TO THE CLAIM FOR STANDARD DEDUCTION ALSO MADE CLAIM FOR NORMAL EXPENSES ON A VERY CONSERVATIVE BASIS FOR AN AMOUNT OF RS. 60000 IN EACH ASSESSMENT YEARS AND AN AMOUNT OF RS. 164250 AND 93400 AS DEPRECIATION IN ASSESSMEN T YEARS 2003 - 04 AND 2004 - 05 WHICH WAS DEPRIVED BY THE ASSESSING OFFICER AND THIS WAS ALSO CONSIDERED AS CONCEALMENT FOR LEVY OF PENALTY WHICH IS NOT WARRANTED. 11.6 THE LD. AR SUBMITTED THAT THE ASSESSEE HAD FILED CASH FLOW STATEMENT AND PROVIDED ALL TH E DETAILS CALLED FOR BY THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT AND AT THE TIME OF LEVY OF PENALTY. NEITHER DURING SEARCH, NOR AT THE TIME OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HA D COME OUT WITH A CASE OF AN ASSET OR AN EXPENDITURE NOT R ECORDED OR NOT EXPLAINED IN THE CASH FLOW STATEMENT. IT WAS SUBMITTED THAT WHAT WA S DECLARED BY THE ASSESSEE WAS FULLY BORNE OUT OF THE CASH I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 15 FLOW STATEMENTS AND THE BANK PASS BOOKS SUBMITTED/ SEIZED. ACCORDING TO THE LD. AR W HEN NO DEFECT WAS POINTED OUT BY THE ASSESSING OFFICER AT THE TIME OF THE ASSESSMENT, THE ADDITION MADE WAS ONLY ON AN ESTIMATE BASIS AND WHEN ADDITION ITSELF I S BASED ON ESTIMATE, THE LEVY OF PENALTY BASED ON THE SAID ADDITION IS NOT WITHIN THE PROVISIONS OF SECTION 271 (1) (C) OF TH E IT ACT AS LAID DOWN BY VARIOUS COURTS/ TRIBUNALS . 11.7 IN VIEW OF THE ABOVE , IT WAS SUBMITTE D AS FOLLOWS: I) THE ANSWER GIVEN TO QUESTION NO. 8 AND 11 OF SWORN STATEMENT OF 6.9.2015 CANNOT BE TAKEN FOR ASSESSMENT OF INCOME OF ASST. YEARS 2000 - 01 TO 2 004 - 05. II) IN THE SAID ANSWER OR IN ANY OTHER QUESTION, THERE WAS NO QUESTION IN THE SWORN STATEMENT AS TO WHAT WAS THE PROPORTION OF GROSS RECEIPT WHICH THE APPELLANT WAS ENTITLED TO IN EACH OF THE EARLIER YEARS UNDER CONSIDERATION. III) THE AO HAS NOT DONE THE EXERCISE OF SEGREGATING THAT POSITION OF THE GROSS RECEIPTS ATTRIBUTABLE TO THE APPELLANT SERVICE ON WHICH HE IS ENTITLED TO A PERCENTAGE OR CLEARLY ESTABLISHED THAT THE ENTIRE RECEIPT IS ATTRIBUTABLE TO HIS APPELLANT ONLY. THE APPELLANT'S ANSWER TO QUESTION NO.8 DOES NOT SPEAK OF IT, NOR WAS ANY QUESTION ASKED ABOUT IT. ON THE CONTRARY THE AO SHOULD HAVE CORROBORATED WITH THE HOSPITAL RECORDS, WHICH WAS ALSO NOT DONE. HENCE THE PRESUMPTION THAT THE ENTIRE COLLECTION IS ATTRIBUTABLE TO THE APPELLANT'S SERVICE IS WRONG. IV) THE AO SHOULD HAVE OBTAINED FROM THE HOSPITAL WHICH WAS ALS O SEARCHED AT THE TIME OF SEARCH ON THE APPELLANT THE PERCENTAGE O F COLLECTION ATTRIBUTABLE TO THE APPELLANT, AMOUNT PAID ETC FOR EACH YEAR. IN THE ABSENCE OF SUCH AN EXERCISE, THE ADDITION MAD E BASED ON SOME INCONCLUSIVE ENQUIRY IS WRONG AND LEVY OF PENALT Y BASED ON THE SAME IS NOT WARRANTED. V) THE AO HAS NOT VERIFIED WHETHER THE PERCENTAGE COLLECTION PAID TO THE APPELLANT WAS INCLUSIVE OF OR EXCLUSIVE OF SALARY IN ALL THE YEARS. VI) THE ADDITION MADE BY AO FOR ASST.YEAR 2001 - 02 TO 2004 - 05 ARE ONLY ON AN ESTIMATE BASIS AND IT IS BASED ON THE SAID ADDITION THE AO HAS LEVIED PENALTY WHICH IS NOT ENVISAGED U/S . 271 (1) (C). I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 16 VII) THE AO HAS NOT C ONSIDERED THAT THE ENHANCEMENT IN THE INCOME OF THE APPELLANT AS PER ASSESSMENT ORDER ARE ALSO OUT OF : (I) DENIAL STANDARD DEDUCTION UNDER SECTION 16(1) FOR RS.20000 EACH IN ASST.YEARS 2000 - 01 AND 2001 - 02,RS 25000 EACH IN ASST YEARS 2003 - 04 AND RS.3 0000 IN ASST YEAR 2004 - 05. (II) DENIAL OF CLAIM FOR GENUINE EXPENDITURE OF RS.60000 EACH IN ALL ASST. YEARS AND FOR DEPRECIATION OF RS.164250 AND 93400 IN ASST YEARS 2003 - 04 AND 2004 - 05. WITHOUT CONSIDERING THE ABOVE THE AO HAS LEVIED PENALTY ON TH E ABOVE DISALLOWANCE WHICH ALSO DOES NOT INVITE THE RIGOUR OF SECTION 271(1) (C). VIII) THE AO HAS NOT COME OUT WITH A SINGLE MISTAKE IN THE CASH FLOW STATEMENTS FILED BASED ON WHICH THE RETURN WAS FILED AND ALSO THE WEALTH STATEMENT FILED AT THE TIME OF ASST, MEANING THEREBY THE ADDITION IS BASED ON ESTIMATE. IT WAS BASED ON THIS THE AO HAS LEVIED PENALTY WHICH IS NOT ENVISAGED IN SECTION 271 (1) (C). IX) THE VARIOUS COURTS INCLUDING THE APEX COURT HAS HELD IN VARIOUS CASES THAT THERE C ANNOT BE A LEVY OF PENALTY U/S 271(1)(C) IN THE CASE OF AN ADDITION BASED ON ESTIMATE AND DISALLOWANCE. IN THE APPELLANT'S CASE IT IS ONLY A LEVY OF PENALTY MADE ON ESTIMATE/DISALLOWANCE AND HENCE REQUIRES TO SQUASHED. IT WAS THEREFORE PRAYED THAT THE ADD ITIONS MADE ON CERTAIN PRESUMPTION, DENIED THE CLAIM FOR STANDARD DEDUCTION, PROPERTY TAX PAYMENT, EXPENSES TO BE DELETED AND THE ORDER IMPOSING PENALTY MAY BE SQUASHED. 12. T HE LD. DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 13. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THE MAIN CONTENTION OF THE LD. AR IS THAT THE ADDITIONS IN THESE CASES WERE MADE ONLY ON ESTIMATE BASIS AND THERE IS NO SEIZED MATERIAL BROUGHT ON RECORD DURING THE PENALTY I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 17 PROCEEDINGS SO AS TO LEVY PENALTY U /S. 271(1)(C) OF THE ACT. ACCORDING TO THE LD. AR, THERE IS DIFFERENCE OF OPINION WITH REGARD TO THE ESTIMATED INCOME OF THE ASSESSEE AND THEREFORE, IT COULD NOT BE SAID THAT THE ASSESSEE HAD CATEGORICALLY CONCEALED THE PARTICULARS OF INCOME SO AS TO EVAD E TAX. BUT IN OUR OPINION, THE ASSESSEE WAS FOUND TO BE IN POSSESSION OF REGISTER WHICH SHOWED COLLECTION OF RECEIPTS FOR CONDUCTING SURGERY. OUT OF THE SEIZED MATERIAL KEM - 9 FOUND DURING THE SEARCH WHICH WAS SUPPORTED BY THE SWORN STATEMENT OF ASSESSEE RECORDED U/S. 132(4) OF THE ACT, THE ASSESSING OFFICER ESTIMATED THE INCOME OF THE ASSESSEE AT 20% OF GROSS RECIEPTS FOR THESE ASSESSMENT YEARS. IN OTHER WORDS, THERE WAS SEIZED MATERIAL COVERING THE PERIOD OF 27 MONTHS AND ON THAT BASIS, THE INCOME OF TH E ASSESSEE WAS ESTIMATED BY THE ASSESSING OFFICER AFTER CONFRONTING THE SAME TO THE ASSESSEE WHILE RECORDING SWORN STATEMENT U/S. 132(4) OF THE ACT. BEING SO, IT CANNOT BE SAID THAT THE ADDI TI ONS WERE MADE ON ESTIMATE BASIS. THE ASSESSEE HEREIN HAS SYSTE MATICALLY DISCLOSED LOWER INCOME THEREBY CONCEALED HIS ACTUAL INCOME . IN FACT, HE PLANNED AND EXECUTED THE TAX EVASION SO AS TO REDUCE TAX LIABILITY . BECAUSE OF SUCH INFORMATION GATHERED BY THE DEPARTMENT DURING SEARCH , THE UNDISCLOSED INCOME CAME TO LIGH T AND EVASION OF TAX WAS FOUND OUT. THE LD. AR PLEADED BEFORE US THAT THE ASSESSEE HAS NOT CONCEALED INCOME AND THE REGISTER FOUND WITH HIM DID NOT BELONG TO HIM. WE FIND NO MERIT IN THAT A R GUMENT AS IN THE SWORN STATEMENT RECORDED U/S. 132(4) TO QUESTIO N NO. 8, AS DISCUSSED EARLIER IN QUANTUM APPEALS, THE ASSESSEE ADMITTED THAT THERE WAS CONCEALMENT OF INCOME. UNDER THESE CIRCUMSTANCES, THE EXPLANATION OFFERED BY THE ASSESSEE REGARDING NON DISCLOSURE OF INCOME RELATING TO COLLECTION OF PROFESSIONAL CHAR GES FROM HOSPITAL IS NOT BONA FIDE I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 18 AND IT CANNOT BE SAID THAT THE ASSESSEE HAD DISCLOSED ALL MATERIAL FACTS RELATING TO HIS INCOME FOR THESE ASSESSMENT YEARS. IN FACT, THE CONDUCT OF THE ASSESSEE HAS BEEN SUCH THAT IT CERTAINLY CALLS FOR LEVYING OF PENALTY AND IN OUR OPINION, CLEARLY CALLS FOR CONFIRMATION OF PENALTY. HOWEVER, SINCE WE HAVE GIVEN CERTAIN RELIEF TOWARDS EXPENDITURE TO EARN PROFESSIONAL INCOME AT 25%, PENALTY IS REQUIRED TO BE RE - CALCULATED BY THE ASSESSING OFFICER. ACCORDINGLY, FOR THE LIM ITED PURPOSE OF RECALCULATION OF PENALTY IN TERMS OF OUR ORDER IN QUANTUM APPEALS, WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER . THE ASSESSING OFFICER IS DIRECTED TO RE - CALCULATE PENALTY AFTER PASSING GIVING EFFECT ORDER TO OUR ORDER IN QUANTUM APPEALS. THUS, THESE THREE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED . 14 . IN THE RESULT, THE APPEAL S OF THE ASSESSEE IN ITA NO S . 637 TO 64 3/C OCH/2008 AND IN ITA NOS. 246 TO 248/COCH /2019 ARE PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH JULY , 2019 SD/ - SD/ - (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 18 TH JULY , 2019 GJ COPY TO: 1 . DR. K.E. MOORTHY, THUNGA, CM HOSPITAL ROAD, PANDALAM - 689 501. 2. THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, KOLLA M . 3 . THE COMMISSIONER OF INCOME - TAX (AP P EALS) - I , KOCHI. 4. THE COMMISSIONER OF INCOME - TAX(APPEALS) - III, KO CHI. I.T.A. NO S . 637 TO 643/COCH/2008 AND 246 TO 248/C OCH/201 9 19 5 . THE PR. COMMISSIONER OF INCOME - TAX, CENTRAL, KO CHI. 6 . D. R., I.T.A.T., COCHIN BENCH, COCHIN. 7 . GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN