Dr. Radheshyam B.Agarwal, Palanpur V. The Income tax Officer,Ward-1,., Palanpur

ITA 650/AHD/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8648 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-01-2015
• Assessment Year: 1997-1998
• Appeal Filed On: 01-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Opportunity of cross examination; Additional evidence
• Section: 143(3); 142(1); 131

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ./ ITA NO. 650/AHD/2011 / ASSESSMENT YEAR: 1997-98 DR. RADHESHYAM B. AGARWAL C/O. ANAND PSYCHIATRIC NURSING HOME AMBIKA NAGAR, NR. CHURCH, PALANPUR. PAN : AACPA 4012C VS ITO, WARD-1 PALANPUR. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE(S) BY : SHRI TUSHAR HEMANI, AR REVENUE BY : SHRI DINESH SINGH, SR.DR / DATE OF HEARING : 21/01/2015 / DATE OF PRONOUNCEMENT: 02/02/2015 $%/ O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XX, AHMEDABAD DATED 15.12.2010. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF THE APPEAL: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE BY CONFIRMING THE ESTIMATED AND AD HOC ADDITION OF RS. 5,05,535/- IN THE INDOOR FEES INCOME HAS MADE BY THE AO. 2. YOUR APPELLANT RESERVES THE RIGHT TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE AO ON V ERIFICATION OF BOOKS OF ACCOUNTS OF THE ASSESSEE NOTED THE FOLLOWING DIS CREPANCIES: ITA NO.650/AHD/2011 2 1. FIRSTLY, THE STATEMENT GIVEN BY MR. THAKKAR DURI NG THE CROSS EXAMINATION IS GROSSLY BASELESS, WITHOUT ANY EVIDEN CES, FAR AWAY FROM FACTS, DIFFERING FIGURES GROSSLY, AND CONTRADI CTORY FROM THE ORIGINAL STATEMENT GIVEN BY HIM FOR A. O. 'S ORDER, WHICH IS NOT ACCEPTABLE AT ALL. 2. FURTHER OUT HUNDREDS OF CASES TREATED BY M E DURING THE YEAR UNDER CONSIDERATION, A SINGLE PERSON, WHO IS PREJUDICED AND FILED CIVIL CASE AGAINST ME, CANNOT BE RELIED UPON ONLY FOR SUCH HUGE ADDITION ON SIMPLE EQUATION BASIS FOR WHOLE YEAR, AND THAT TOO HAVING NO ANY EVIDENCE PRO DUCED BY HIM. 3. THERE IS NEITHER ANY PROOF OF FEES ALLEGED TO BE PAID BY MR. THAKKAR, HAS PRODUCED AT THE TIME OF ORIGINAL HEARI NG/ASSESSMENT NOR DURING MY CROSS EXAMINATION ON 14-12-2009. ORAL LY TELLING - SAYING CANNOT BE ACCEPTED AT ALL. WHEREAS, I HAVE P RODUCED A COPY OF FEES RECEIPT ( -NO. 3535 DATED 15-01-1997) FOR FEES CHARGED BY ME FROM HIM, INDOOR FEES REGISTER - WHER E THE SAME IS RECORDED, INDOOR CASE PAPERS FILE, BOOKS OF ACCO UNTS, ETC. TO YOU. 4. FURTHERMORE, WHILE GOING THROUGH THE CROSS EXAMINATION OF MR. THAKKAR, OATHED IN YOUR RESPECTED PRESENCE ON 1 4-12-2009, THE FOLLOWING MATERIAL DISCREPANCIES ARE EMINENT, W HICH ARE FAR AWAY FROM THE FACTS, A. AS PER ACCESSING OFFICER'S ORIGINAL ASSESSMENT O RDER DATED 31-03-2002, VIDE PARA (2((II) ON PAGE 5 STATE S THAT MR. THAKKAR HAS PAID RS. 400 FOR INDOOR FEES TOTALL Y ON 23- 01-1997, WHEREAS, DURING THE CROSS EXAMINATION HE H AS REPLIED THAT HE HAS PAID RS.1,000/- ON 23-01-1997, WHICH ABSOLUTELY CONTRADICTS HIS OWN SAYINGS ( I. E. RS.4 00 VS. RS. 1,000). ACCORDINGLY, HIS BOTH STATEME NTS ARE CONTRADICTORY, BASELESS AND NOT ACCEPTABLE. B. AGAIN DURING THE CROSS EXAMINATION ON 14-12-2009 , HE SAYS THAT HE PAID RS.600/- ON 25-01-1997, WHICH HE HAS NEVER STATED IN HIS ORIGINAL STATEMENT AS PER A. O. 'S ORDER. MEANING THEREBY HE IS GROSSLY MANIPULATING HIS SAYI NGS TO HARASS ME AS HE HAS FILED CIVIL SUIT AGAINST ME. C. AGAIN, DURING THE CROSS EXAMINATION, HE SAYS THA T HE PAID RS.1,000/- LUMPSUM BREAKUPWISE RS. 200 FOR ECT+RS.1 25 ROOM CHARGES + RS.80 VISIT CHARGES FOR 2 DAYS, WHIC H DO NOT TALLY THE FIGURE OF RS.1,000 PAID? IT IS NO WHERE T RADITION OF COLLECTING LUMP SUM AMOUNT AT THE TIME OF DISCHARGE . IT IS ITA NO.650/AHD/2011 3 EXACT AND FINAL CHARGES TO BE PAID AT THE TIME OF D ISCHARGE OF PATIENT. ACCORDINGLY, HIS BOTH STATEMENT ARE CONTRADICTORY, BASELESS AND NOT ACCEPTABLE. D. FURTHER, DURING THE CROSS EXAMINATION MR. THAKKA R SAID THAT ON 15-01-1997, 22-01-1997 AND ON 25-01-1997 HE HAS PAID FEES AT RECEPTION COUNTER TO PERSON OTHER THAN ME. WHILE AS PER MY TRADITION SINCE BEGINNING OF MY HOS PITAL, I COLLECT ALL CHARGES DIRECTLY FROM PATIENT, AND NOT BEING COLLECTED AT RECEPTION. WHICH AGAIN, FALSIFY HIS ST ATEMENT GROSSLY. THUS, AT EVERY STAGE OF HIS STATEMENTS HE HAS MANIPULATED THE FACT AGAINST ME FOR HARASSMENT. 5. MOREOVER, IT IS MY TRADITION TO COLLECT CHARGES AT THE TIME OF DISCHARGE ONLY, WHILE IN THIS CASE AS THE P ATIENT DIED IN THE HOSPITAL, I DIDN 'T COLLECT ANY CHARGES FROM MR. THAKKAR, CONSIDERING HUMANITY AND SORROW FEELING TO WARDS THEM. 6. UNDER THE ABOVE SITUATION, LOOKING TO THE FACTS AND EVIDENCE ON MY PART AND ERRONEOUS/GROSSLY FARCIFYIN G STATEMENT OF MR. THAKKAR, I EARNESTLY REQUEST YOU S IR, NOT TO ACCEPT OR CONSIDER HIS SAYING- STATEMENT AT ALL AND ADJUDICATE ME BY DROPPING THE PROPOSED ADDITION INT O AND OBLIGE. 5. THE ASSESSEE'S ABOVE REPLY IS CAREFULLY CONSIDER ED. AS PER THE HON. ITAT'S DIRECTION, SUFFICIENT OPPORTUNITY HAS B EEN GIVEN TO THE ASSESSEE BY TAKING THE CROSS EXAMINES WITH SHRI AMR UTLAL J THAKKAR. SHRI AMRUTLAL J THAKKAR IN HIS REPLY DATED 14,12.2009 ONCE AGAIN CONFIRMED THAT THE ASSESSEE HAS RECEIVED INDOOR FEES OF RS.400/- IN THE CASE OF HIS DAUGHTER, DAXABEN A THAKKAR ON 23.01.1997. FURTHER, SHRI AMRUTLAL J THAKKAR STATED IN QUESTION 9 IN HIS REPLY THAT HE HAS GIVEN A LUMSUM AMOUNT OFRS . WOO/- TO THE DR. RADHESHYAM AGRAWAL ON 23.01.97 AT 5.00 PM A S INDOOR FEES CHARGES I.E. RS.200/- FOR ECT CHARGE, RS.125/- FOR ROOM CHARGE AND RS.80/- VISIT CHARGE. SHRI AMRUTLAL J TH AKKAR WAS ALREADY STATED IN HIS STATEMENT GIVEN ON 09.03.2000 THAT HE HAS PAID AS INDOOR FEES CHARGES I.E. RS.200/-FOR ECT CH ARGE, RS.125/- FOR ROOM CHARGE AND RS.80/- VISIT CHARGE. HENCE, TH ERE IS NO CONTRADICTORY STATEMENT FOUND IN REPLY GIVEN BY THE SHRI AMRUTLAL THAKKAR ON 14.12.2009. 5.1 FURTHER ON PERUSING OF RECORDS, IT IS NOTICED THAT THE ABOVE CHARGES HAVE NOT BEEN RECORDED IN THE BOOKS OF ACCO UNT OR INDOOR RECORDS. HOWEVER, THE ASSESSEE ONCE AGAIN FAILED TO DO SO. ITA NO.650/AHD/2011 4 5.2 ON VERIFICATION OF BOOKS OF ACCOUNTS THE FOLLOW ING DISCREPANCY ONCE AGAIN FOUND. A. HE HAS MAINTAINED INDOOR PATIENT REGISTER, AND INDOOR FEE RECEIPT BOOKS BUT NEITHER COMPLETE ADDRESSES OF PAT IENTS NOR THE INFORMATION RELATING TO DIAGNOSIS, OR NATURE OF T REATMENT GIVEN TO EACH PATIENT IS MENTIONED THEREIN. B THE DATES OF ADMISSION TO THE HOSPITAL AND DISCH ARGED FROM THE HOSPITAL IS NOT EXACTLY WRITTEN. C NO DETAILS/BREAK UP OF VISIT FEE, ROOM CHARES, OR OTHER CHARGES HAS BEEN GIVEN SEPARATELY IN THE SAID INDOOR FEE RE GISTER. D NO SEPARATE WARD WISE OCCUPATION/ROOM WISE ACCOMM ODATION REGISTER IN RESPECT OF INDOOR PATIENTS HAVE BEEN MA INTAINED BY THE ASSESSEE, NO ANY APPOINTMENT DAIRY FOR OPD OR INDOO R PATIENTS IS MAINTAINED OR PRODUCED. E IN HIS INDOOR REGISTER, NAMES OF THE PATIENTS ONL Y HAVE BEEN MENTIONED AND IN MOST OF THE CASES, NO ANY SURNAMES OR COMPLETE ADDRESSES HAVE BEEN GIVEN. THUS, THE INDOO R FEE PATIENT'S FEE DISCLOSED BY HIM IS NOT VERIFIABLE FR OM PATIENTS AND SO CANNOT BE RELIED UPON AND BE ACCEPTED AND HENCE HIS BOOKS OF ACCOUNTS AND BOOK RESULTS ARE PROPOSED TO BE ONCE A GAIN REJECTED U/S 145(2) OF THE ACT, HIS INDOOR INCOME OF RS.5,05 ,535/- IS PROPOSED TO BE ESTIMATED AS PER ORDER PASSED U/S 14 3(3) OF THE ACT ON 31.03.2000. 5.3 IN VIEW OF THE ABOVE FACTS AND DISCUSSIONS, THE ASSESSEE'S CONTENTION IS NOT ACCEPTED AND AS THE ASSESSEE HAS FAILED TO SUBSTANTIATE HIS CLAIM, RS. 5,05,535/- IS ADDED BAC K TO THE INCOME OF THE ASSESSEE ON THE LINES AS MENTIONED IN THE OR DER PASSED IN PARA-2 AS INDOOR FEE INCOME ON 31.03.2000 U/S 143(3 ) OF THE I.T.ACT BY THE THEN A.O. ' 4. ON APPEAL BEFORE THE CIT(A), THE ASSESSEE HAS SU BMITTED AS UNDER: THE APPELLANT IS AN INDIVIDUAL HAVING PROFESSIONAL INCOME FROM MEDICAL PRACTICE, AS A PSYCHIATRIST, CARRIED ON IN THE NAME OF ANAND PSYCHIATRIC NURSING HOME. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 28/08/1997 DECLARING INC OME OF RS.1,10,520/-. DURING THE COURSE OF ASSESSMENT PROC EEDINGS, THE ITA NO.650/AHD/2011 5 APPELLANT HAS DULY FURNISHED NECESSARY INFORMATION AND EXPLANATIONS AS REQUIRED BY THE A.O. FROM TIME TO TIME. ASSESSME NT WAS FINALIZED BY ORDER U/S. 143(3) OF THE I.T. ACT, 1961 DATED 31/03 /2000 AT TOTAL INCOME OF RS.9,74,610/- AFTER MAKING VARIOUS ADDITIONS. THE APPELLANT PREFERRED APPEAL AGAINST SUCH ASSESSM ENT AND ALL THE ADDITIONS WERE DELETED BY THE HON'BLE CIT(A)-XV, AH MEDABAD BY ORDER DATED 12/06/2002. HOWEVER, THE DEPARTMENT PREFERRED APPEAL BEFORE THE HON'BLE IT AT, BENCH 'D', AHMEDABAD AND BY ORDE R DATED 14/09/2007 IN IT A NO,3051/AHD/2002, THE HON'BLE IT AT RESTORED THE MATTER REGARDING ESTIMATED ADDITION OF RS.5,05,535/ - IN INDOOR FEES INCOME TO THE FILE OF THE A.O. WITH A DIRECTION TO ALLOW THE APPELLANT AN OPPORTUNITY OF CROSS EXAMINATION WITH MR. AMRATLAL THAKKAR AND DECIDE THE MATTER AFRESH AFTER GIVING OPPORTUNITY T O THE APPELLANT. IN VIEW OF ABOVE DIRECTION THE NOTICE U/S.143(2) OF THE INCOME TAX ACT, 1961 WAS ISSUED ON 18-06-2009. SUBSEQUENTLY DUE TO CHANGE OF INCUMBENT AND DIRECTIONS OF HON. ITAT AS MENTIONED ABOVE, FRESH NOTICE U/S. 142(1) WAS ISSUED ON 23-09-2009 REQUIRI NG THE APPELLANT TO FILE THE SUBMISSIONS AFRESH. THE A.O, ALSO AS DIREC TED BY THE HON'BLE ITAT, ALLOWED TO THE APPELLANT OPPORTUNITY OF CROSS EXAMINING MR. AMRATLAL J. THAKKAR. A SUMMONS WAS ISSUED U/S. 131 TO MR. AMRATLAL J. TH AKKAR FOR HIS CROSS EXAMINATION TO BE TAKEN BY APPELLANT. BITH TH E APPELLANT AND MR. AMRATLAL J. THAKKAR ATTENDED OFFICE ON 14-12-2009 A ND THE APPELLANT EXAMINED MR. AMRATLAL J. THAKKAR. THE A.O. THEN ISS UED SHOW CAUSE NOTICE DATED 16-12-2009 STATING THE FACTS STATED BY MR. AMRITLAL J. THAKKAR AND ASKING THE APPELLANT TO SUBMIT THE EXPL ANATION/ CLARIFICATION /SUBMISSION ALONG WITH NECESSARY DOCU MENTARY EVIDENCE, IN PROOF AS TO RECEIPT OF FEES OF RS.400/-FROM DAXA BEN A THAKKAR ON 23-01-2007 AND TO SHOW CAUSE AS TO WHY PROPORTIONAT E ADDITIONAL INCOME NOT DISCLOSED IN BOOKS AND WHICH WORKED OUT WHILE ORDER PASSED U/S. 143(3) ON30-03-2000 TREATED AS INCOME F ROM UNDISCLOSED SOURCES AT RS. 5,05,535/-. THE APPELLANT IN REPLY THEREOF SUBMITTED ALL THE IN FORMATION AND EXPLANATIONS AND ALSO PRODUCED BOOKS OF ACCOUNTS GI VING PARTICULARS REGARDING INDOOR FEES. FURTHER, BY LETTER DATED 19/ 12/2009, THE APPELLANT SUBMITTED TO THE A. O. THAT THE REPLIES G IVEN BY MR. AMRITLAL J. THAKKAR DURING THE CROSS EXAMINATION ARE NOT AT ALL RELIABLE PARTICULARLY IN VIEW OF THE FOLLOWING DISCREPANCIES IN THE ANSWERS GIVEN DURING CROSS EXAMINATION ON 14/12/2009, AND HIS EAR LIER STATEMENT ITA NO.650/AHD/2011 6 GIVEN AT THE ORIGINAL STAGE OF HEARING TO A.O, ON T HE BASIS OF WHICH ORIGINAL ASSESSMENT WAS FRAMED. (I) FIRSTLY, THE STATEMENT GIVEN, BY MR. THAKKAR DU RING THE CROSS EXAMINATION IS GROSSLY BASELESS, WITHOUT ANY EVIDEN CE, FAR AWAY FROM FACTS, DIFFERING FIGURES GROSSLY, AND CONTRADICTORY FROM THE ORIGINAL STATEMENTS GIVEN BY HIM. (II) FURTHER, OUT OF HUNDREDS OF CASES TREA TED BY THE APPELLANT DURING THE YEAR UNDER CONSIDERATION. MR. THAKKAR, I S ONLY SINGLE PERSON HAVING PREJUDICE TOWARDS THE APPELLANT AND H AS FILED CIVIL CASE AGAINST THE APPELLANT, ALLEGATIONS MADE CANNOT BE RELIED UPON FOR MAKING SUCH HUGE ADDITION. (III) NO PROOF OF FEES ALLEGED TO BE PAID B Y MR. THAKKAR HAS BEEN PRODUCED AT THE TIME OF ORIGINAL HEARING/ASSES SMENT OR DURING THE-CROSS EXAMINATION ON 14/12/2009. IN ABSENCE OF ANY DOCUMENTARY EVIDENCE OR PROOF ONLY ORAL ANSWER IN A STATEMENT C ANNOT BE ACCEPTED AT ALL, WHEREAS, THE APPELLANT HAS PROD UCED A COPY OF FEES REPORT (NO.3535 DATED 15/01/1997) FOR FEES CHARGED RS. 5O/-AND INDOOR FEES REGISTER - WHERE THE SAME WAS RECORDED, INDOOR CASE PAPERS FILE, BOOKS OF ACCOUNTS, ETC. (IV) AS PER A.O'S ORIGINAL ASSESSMENT ORDER DATED 3 1/03/2002, VIDE PARA 2(II) ON PAGE 5, IT IS STATED THAT MR.THAKKAR HAS PAID RS.400/- FOR INDOOR FEES TOTALLY ON 23/01/1997, WHEREAS DURING T HE CROSS EXAMINATIONS HE HAS REPLIED THAT HE HAS PAID RS. 1, 000/- ON 23/01/1997, WHICH ABSOLUTELY CONTRADICTORY, BASELES S AND NOT ACCEPTABLE. (V) AGAIN DURING THE CROSS EXAMINATION ON 14/12/200 9, IT IS STATED THAT RS.600/- WERE PAID ON 25/01/1997, HOWEVER, IN HIS STATEMENT AS PER ORIGINAL ASSESSMENT ORDER, NO SUCH STATEMENT IS MADE. AGAIN DURING THE CROSS EXAMINATION, HE STATED THAT HE PAID RS.1,000/- LUMP SUM (BREAKUP WISE RS.200/-FOR ECT + RS.125/-RO OM CHARGES + RS.80/- VISIT CHARGES FOR 2 DAYS) WHICH DO NOT CONF IRM WITH THE FIGURE OF RS. 1,OOO/- ALLEGED TO HAVE BEEN PAID. IT IS TO BE NOTED THAT NO WHERE THERE IS TRADITION OF COLLECTING LUMP SUM AMOUNT AT THE TIME OF DISCHARGE. IT IS ONLY THE FINAL CHARGES TO BE PAID AT THE TIME OF DISCHARGE OF PATIENT. ACCORDINGLY, HIS BOTH STATEME NTS ARE CONTRADICTORY. ITA NO.650/AHD/2011 7 (VII) FURTHER, DURING THE CROSS EXAMINATION MR. THA KKAR SAID THAT ON 15/01/1997, 22/01/1997 AND ON 25/01/1997 HE HAS PAI D FEES AT RECEPTION COUNTER TO SOME PERSON OTHER THAN THE APP ELLANT, WHEREAS, AS PER THE SYSTEM SINCE BEGINNING OF APPELLANT'S HOSPI TAL, ALL CHARGES ARE DIRECTLY COLLECTED FROM PATIENT BY THE APPELLAN T AND NOT COLLECTED AT (HE RECEPTION. THIS ALSO SHOWS FALSITY IN THE ST ATEMENT. (VIII) MOREOVER, IT IS TRADITION OF THE APPELLANT T O COLLECT CHARGES AT THE TIME OF DISCHARGES ONLY. WHILE IN THIS CASE AS THE PATIENT DIED IN THE HOSPITAL, THE APPELLANT DID NOT EVEN COLLECT AN Y CHARGES FROM MR. THAKKAR, ON HUMANITARIAN GROUNDS. IN VIEW OF THE ABOVE, IT IS ABSOLUTELY CLEAR BEYOND ANY DOU BT THAT THE ANSWERS GIVEN BY MR. THAKKAR IN HIS STATEMENT ARE B ASELESS AND EVIDENCES AND MORE PARTICULARLY SO FOR THE REASON T HAT MR. THAKKAR IS THE PERSON WHO HAS FILED CIVIL SUIT AGAINST THE APPELLANT FOR HIS SO CALLED PERSONAL GRIEVANCES AND, THEREFORE, HIS STAT EMENT IS BIASED AND PREJUDICIAL TO SERVE HIS SELF INTEREST. FURTHER , FEES CHARGED FROM HIM FOR OF HIS DAUGHTER HAVE BEEN DULY RECORDED IN THE INDOOR CASE PAPERS FILE AS WELL AS BOOKS OF ACCOUNTS PRODUCED F OR VERIFICATION. THEREFORE, THE STATEMENT OF M., AMRITTAL J. THAKKAR CANNOT BE RELIED UPON. THE APPELLANT ALSO STATES THAT WHILE AGAIN MAKING A DDITION IN INDOOR FEES INCOME OF THE APPELLANT, IN THE ORIGINAL ASSES SMENT THE A.O, RELIED ON SEVERAL ASSUMPTIONS AND INFERENCE DRAWN B Y HIM IN RESPECT OF INDOOR FEES INCOME. THE APPELLANT HAS EXPLAINED TO THE A.O, THAT NO ADDITION CAN BE MADE IN INDOOR FEES INCOME PARTI CULARLY IN VIEW OF THE EXPLANATIONS DURING THE COURSE OF ORIGINAL A SSESSMENT AS UNDER: (IX) THE CASE PAPERS FILES IN RESPECT OF INDOOR, PA TIENTS ADMITTED IN HOSPITAL OF THE APPELLANT ARE AVAILABLE WITH THE AP PELLANT AND THE SAME WERE PRODUCED BEFORE THE LEARNED AO FOR VERIFICATIO N DURING THE COURSE OF HEARING. IT IS THEREFORE NOT TRUE THAT TH E APPELLANT HAS NOT MAINTAINED SUCH CASE PAPERS AND FILES, (X) IT HAS BEEN OBSERVED BY THE A.O, EVEN IN THE OR IGINAL ASSESSMENT ALSO, THAT 'YOU HAVE MAINTAINED INDOOR PATIENTS REG ISTER, AND INDOOR FEE RECEIPT BOOKS BUT NEITHER COMPLETE ADDRESSES OF PAT IENTS NOR THE INFORMATION RELATING TO DIAGNOSIS, OR NATURE OF TRE ATMENT GIVEN TO EACH ITA NO.650/AHD/2011 8 PATIENT IS MENTIONED THEREIN '. THE A. O. HAS, IN T HE ASSESSMENT ORDER UNDER CONSIDERATION, AGAIN MADE SIMILAR OBSERVATION S TO SUPPORT THE ADDITION IN INDOOR INCOME. (XI) THE APPELLANT HAS DULY EXPLAINED IN RESPECT OF INFORMATION ABOUT COMPLETE ADDRESSES ETC, THAT MOST OF THE PATIENTS A RE FROM NEARBY SMALL VILLAGES WHERE THEY ARE RESIDING PERMANENTLY SINCE VERY LONG TIME AND THEREFORE SUCH PERSONS CAN BE TRACED OUT FROM SUCH VILLAGES MERELY BY THEIR NAME WITHOUT ANY REQUIREMENT OF SPECIFIC ADDR ESS GIVING HOME NUMBER ETC. (XII) THE APPELLANT ALSO EXPLAINED AS REGARDS PROPE R MAINTENANCE OF REGISTERS GIVING INFORMATION RELATING TO DIAGNOSIS ETC. THAT NO SUCH INFORMATION IS REQUIRED TO BE GIVEN IN THE REGISTER . (XIII) THE APPELLANT ALSO EXPLAINED THAT DATES OF A DMISSION IN THE HOSPITAL AND DISCHARGE THEREFROM THE RECORDED IN TH E CASE PAPERS AND REGISTERS , WHICH WERE AVAILABLE FOR VERIFICATION DURING THE CO URSE OF HEARING. THEREFORE, IT IS NOT CORRECT THAT NO SUCH DATES HAVE BEEN GIVEN. (XIV) THE A.O, HAS AGAIN OBSERVED THAT NO DETAILS/B REAK-UP OF VISIT FEES, ROOM CHARGES, OR OTHER CHARGES HAVE BEEN GIVE N SEPARATELY IN THE SAID INDOOR FEE REGISTER. THE APPELLANT FURTHER SUBMITS THAT SPECIFIC DETAILS IN THIS REGARD ARE GIVEN IN THE BI LLS WHICH CONTAIN DULY PRIMED SERIAL NUMBERS AND THE SAME WERE AVAILA BLE FOR VERIFICATION DURING THE COURSE OF HEARING. (XV) THE A.O. HAS FURTHER OBSERVED THAT NO SEPARATE WARD-WISE OCCUPATION/ROOM-WISE ACCOMMODATION REGISTER OF INDO OR PATIENTS HAVE BEEN MAINTAINED BY THE ASSESSES, NOR ANY APPOI NTMENT DIARY FOR OPD OR INDOOR PATIENTS IS MAINTAINED OR PRODUCED. T HE APPELLANT SUBMITS IN THIS REGARD, THAT ALL SUCH DETAILS REGAR DING INDOOR PATIENTS. FURTHER, AS STATED ABOVE IT IS NOT NECESS ARY UNDER LAW TO MAINTAIN THE REGISTER AS SUGGESTED, HOWEVER, SUCH D ETAILS, CAN BE WORKED OUT BY ANALYZING INFORMATION AVAILABLE IN TH E BILLS. (XVI) THE A,O, HAS ALSO OBSERVED THAT IN INDOOR REG ISTER, NAMES OF PATIENTS ONLY HAVE BEEN MENTIONED AND IN MOST OF TH E CASES, NO ANY SURNAMES OR COMPLETE ADDRESSES HAVE BEEN GIVEN. THU S, THE INDOOR FEE PATIENTS FEE DISCLOSED IS NOT HENCE THE BOOKS O F ACCOUNTS AND BOOK RESULTS ARE PROPOSED TO BE ONCE AGAIN REJECTED U/S. 145(2) OF ITA NO.650/AHD/2011 9 THE ACT, AND INDOOR INCOME IS PROPOSED TO BE ESTIMA TED AS PER ORDER PASSED U/S, 143(3) OF THE I, T. ACT, 1961 ON 31/03/ 2000. (XVII) THE APPELLANT HAS TO SUBMIT THAT THESE OBSER VATIONS ARE NOT CORRECT IN AS MUCH AS THE DETAILS REQUIRED ARE AVAI LABLE EITHER IN THE CASE RECORDS OR IN THE BILLS OR IN THE REGISTER AND THE SAME CAN BE COLLECTED FROM ANY OF SUCH RECORDS IN THIS REGARD W ITHOUT KNOWLEDGE OF THE APPELLANT, HOWEVER, NO SUCH INFORMATION FOUND N ECESSARY HAVE BEEN CALLED FOR FROM THE APPELLANT DURING THE COURSE OF HEARING, WHICH THE APPELLANT COULD HAVE SUBMITTED SO AT TO FULLY AND S ATISFACTORILY EXPLAIN THE SAME TO THE LEARNED A.O. THE APPELLANT THEREFORE SUBMITS THAT, IN VIEW OF TH E ABOVE, THE ACTION OF THE LEARNED A.O. OF AGAIN REJECTING THE BOOK RESULT BY RESORTING TO PROVISIONS OF SECTION 145(2) IS NOT JUSTIFIABLE, PA RTICULARLY IN ABSENCE OF ANY DOCUMENTARY EVIDENCES OR MATERIAL IN RESPECT OF ANY SPECIFIC INSTANCES TO PROVE BEYOND ANY DOUBT THAT THE BOOKS OF ACCOUNTS MAINTAINED ARE NOT CORRECT AND RELIABLE. THE APPELLANT SUBMITS THAT ALL THE NECESSARY INFORM ATION FOR VERIFICATION IS AVAILABLE IN THE RECORDS OF THE APP ELLANT, AS SUCH, THE OBSERVATIONS REGARDING HAVING COLLECTED MORE FE ES THAN DISCLOSED IN THE RETURN OF INCOME ARE NOT BASED ON ANY DOCUMENTARY EVIDENCES OR MATERIAL. MOREOVER, VERY H EAVY RELIANCE HAS BEEN PLACED ON ONLY ONE SINGLE PARTY V IZ. SHRI AMRITLAL J, THAKKAR WHO HAS FILED CIVIL SUIT AGAINS T THE APPELLANT REGARDING TREATMENT OF HIS DAUGHTER AND HIS BIASED, WHICH IS NOT SUPPORTED BY ANY EVIDENCE, HAS BEEN UTILIZED FOR TH E PURPOSE OF AGAIN MAKING ADDITION IN THE CASE OF THE APPELLANT, WHICH IS TOTALLY UNWARRANTED AND NOT JUSTIFIABLE AT ALL. THE A.O, HAS HOWEVER FINALIZED THE SET ASIDE ASSESS MENT BY MAKING ADDITION OF RS,5,05,535/- PURELY ON ESTIMATED BASIS AS PER ORIGINAL ASSESSMENT ORDER DATED 31/03/2000 AND HAS ASSESSED INCOME AT RS.6,86,813/-. THE APPELLANT, THEREFORE, PRAYS THAT THE ADHOC DEDU CTION OF RS.5,05,535/- MAY PLEASE BE DELETED FULLY. 5. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSE E, THE CIT(A) CONFIRMED THE ADDITION BY FOLLOWING OBSERVATIONS: ITA NO.650/AHD/2011 10 4.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE AR CAREFULLY. IT IS SEEN THAT THE SAME PLEA HAS BEEN RAISED BEFORE THE UNDERSIGNED AS WELL AS BEFORE THE AO. NO ADDITIONAL EVIDENCE OR ARGUMENTS HAVE BEEN PUT FORTH BY THE AR . THE AO HAS CONSIDERED THE ARGUMENTS OF THE AR WHICH ARE ELABOR ATELY DEALT WITH IN THE ASSESSMENT ORDER. IT IS SEEN THAT EVEN DURIN G THE CROSS EXAMINATION OF MR. THAKKAR, ESPECIALLY, MR. THAKKAR HAS REITERATED HIS STATEMENT. EXCEPT FOR MAKING GENERAL OBSERVATIO NS THAT THE DOCTOR RECEIVED THE PAYMENTS HIMSELF AND NO ONE WAS AUTHORIZED TO RECEIVE THE MONEY IN HIS NURSING HOME, THE APPELLAN T HAS NOT BEEN ABLE TO PROVE THAT THE STATEMENT OF SHRI THAKKAR IS NOT RELIABLE. THE ADDITION MADE BY THE AO IS HENCE ON SOUND FOOTING. THE SAME IS CONFIRMED. 6. BEFORE US, THE AR OF THE ASSESSEE SUBMITTED THAT ASSESSEE IS A MEDICAL PRACTITIONER (PSYCHIATRIST). THE AO MADE TH E IMPUGNED ADDITION IN RESPECT OF INDOOR FEES INCOME MERELY ON THE BASIS O F ESTIMATION. ORIGINAL ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DATED 3 1.03.2000 (PGS.L TO 9 @ 4 TO 7 OF P/B) WHEREIN AO FOUND THAT ONE MR. AMRI TLAL J. THAKKAR HAD FILED A CIVIL SUIT AGAINST APPELLANT. HENCE, AO CAL LED FOR DETAILS FROM MR. THAKKAR. MR. THAKKAR STATED BEFORE AO THAT HIS DAUG HTER, SMT. DAXABEN A. THAKKAR, WAS UNDER TREATMENT OF THE ASSESSEE AND HE HAD PAID FEES OF RS.400/- TO THE ASSESSEE FOR TWO DAYS INDOOR TREATM ENT (I.E. RS.200/- PER DAY). AO ERRONEOUSLY REACHED TO A CONCLUSION THAT F EES FOR SUCH SUM OF RS.400/-WAS ACTUALLY CHARGED FROM MR. THAKKAR AND W AS NOT RECORDED IN BOOKS OF ACCOUNTS. AO FURTHER FOUND THAT ASSESSEE H AS DISCLOSED FEES OF RS.430/- FOR TREATMENT OF 7 DAYS IN CASE OF OTHER P ATIENTS (I.E. AVERAGE RS.60/- PER DAY). HENCE, AO ESTIMATED INDOOR FEES B ASED ON AFORESAID AVERAGES (I.E. RS.200/-FROM MR. THAKKAR AND RS.60/- AS DISCLOSED IN BOOKS) AT RS.7,22,193/- (I.E. RS.200 / RS.60 * RS.2,16,658 BEING INDOOR FEES). SINCE ASSESSEE HAD ALREADY DISCLOSED INDOOR FEES IN COME AT RS.2,16,658/-, ADDITION WAS RESTRICTED TO RS.5,05,535/- (I.E. RS.7 ,22,193 - RS.2,16,658) ITA NO.650/AHD/2011 11 (PG.6 OF P/B). THE AR SUBMITTED THAT CIT(A) DELETE D THE SAID ADDITION VIDE ITS ORDER DATED 12.06.02 (PGS.28 TO 36 @ 28 TO 33 OF P/B). ON REVENUE'S APPEAL, THE ITAT, VIDE ITS ORDER DATED 14 .09.07 (PGS.37 TO 40 @ 37 TO 38A OF P/B) RESTORED THE MATTER TO AO WITH A DIRECTION TO ALLOW THE ASSESSEE AN OPPORTUNITY OF CROSS EXAMINING MR. THAK KAR. AS PER ITAT'S DIRECTION, AO AFFORDED AN OPPORTUNITY OF CROSS EXAM INING MR. THAKKAR ON 14.12.09. CROSS EXAMINATION STATEMENT OF MR. THAKKA R RECORDED ON 14.12.09 ALONGWITH ITS ENGLISH TRANSLATION IS PLACE D AT PGS.41 TO 46 OF P/B. AGAIN, AO MADE IMPUGNED ADDITION OF RS.5,05,535/- W ITHOUT APPRECIATING DOCUMENTARY EVIDENCES AND THE SAME CAME TO BE CONFI RMED BY CIT(A). THE AR SUBMITTED THAT THE LOWER AUTHORITIES DIDN'T APPRECIATE FACTS IN ITS ENTIRETY AND THE IMPUGNED ADDITION IS MERELY AN OUT COME OF ESTIMATION MADE ON THE BASIS OF STATEMENT OF MR. THAKKAR WHICH IS NOT SUPPORTED BY ANY EVIDENCES. HE SUBMITTED THAT AS PER THE AVERMEN TS OF MR. THAKKAR AT THE STAGE OF ORIGINAL ASSESSMENT, HE HAD PAID RS.40 0/- TO THE ASSESSEE AND AO TOOK A VIEW THAT THE SAME WAS NOT RECORDED IN TH E BOOKS OF ACCOUNTS (PG.6 OF ASST. ORDER). THE AFORESAID AVERMENT IS FA CTUALLY INCORRECT. THE AR SUBMITTED THAT CORRECT FACT IS THAT ASSESSEE HAD CHARGED MERELY RS.50/- (AND NOT RS.400/-) FROM MR. THAKKAR IN RESPECT OF T REATMENT OF SMT. DAXABEN A. THAKKAR WHICH HAS BEEN DULY RECORDED IN INDOOR FEES REGISTER ON 15.01.1997 VIDE ENTRY NO.3535 AND ITS RECEIPT WA S ALSO ISSUED. RELEVANT EXTRACT OF INDOOR FEES REGISTER AND RECEIPTS ON SAM PLING BASIS ARE PLACED AT PGS.47 TO 56 @ 49 & 54 OF P/B). FURTHER, MR. THAKKA R, AT THE ORIGINAL ASSESSMENT STAGE STATED THAT HE HAD PAID FEES OF RS .400/- (PG. 5 OF P/B) WHEREAS AT THE STAGE OF CROSS EXAMINATION, HE STATE D THAT HE HAS PAID AD HOC FEES OF RS.1,000/- (PG.45 OF PB). THUS, MR. THAKKAR 'S STATEMENT IS SELF- CONTRADICTORY, AND ALSO, SUCH SUM OF RS.1,000/- WAS SAID TO HAVE BEEN PAID ON 'AD-HOC BASIS WHEREAS THE FACT IS THAT THERE IS NO TRADITION OF COLLECTING ITA NO.650/AHD/2011 12 AD-HOC FEES. MR. THAKKAR STATED THAT BREAK-UP OF SU CH AD-HOC SUM OF RS.1,000/- WAS THIS WISE I.E. ECT CHARGES RS.220/-, ROOM CHARGES RS.125/- AND VISITING FEES RS.80/- (PG.45 OF P/B). SUCH THRE E FIGURES AGGREGATES TO RS.425/-. THUS, THERE IS NO CORRELATION BETWEEN AD HOC SUM OF RS.1,000/- AND ITS BREAK-UP. MR. THAKKAR, IN HIS STATEMENT REC ORDED ON 14.12.09, STATED THAT HE HAD PAID FEES ON RECEPTION COUNTER W HEREAS THE FACT IS THAT APPELLANT HAD THE PRACTICE OF COLLECTING FEES FROM PATIENTS HIMSELF. MR. THAKKAR FURTHER STATED IN HIS STATEMENT DATED 14.12 .09 THAT HE HAD PAID RS.60/- TOWARDS FEES AND RS.600/- AS DEPOSIT. HOWEV ER, NO SUCH STATEMENT WAS MADE AT THE ORIGINAL ASSESSMENT STAGE. AS CAN B E SEEN FROM ABOVE, ADDITION CANNOT BE MADE ON BASIS OF STATEMENTS OF M R. THAKKAR SINCE THE SAME SUFFER FROM FOLLOWING DEFECTS WHICH MAKES THE SAME UNRELIABLE: HIS STATEMENTS ARE NOT BACKED BY ANY DOCUMENTARY EV IDENCES WHEREAS APPELLANT HAS SUBSTANTIATED HIS STAND BY PR ODUCING INDOOR FEES REGISTER AND FEES RECEIPT. HIS STATEMENTS ARE SELF-CONTRADICTORY AS TO FEES PA ID BY HIM. ALSO APPELLANT DOESN'T HAVE A SYSTEM OF ACCEPTING A D HOC PAYMENTS AS ALLEGED BY MR.THAKKAR. RS.1,000/- PAID ON AD HOC BASIS DOES NOT COINCIDE W ITH ITS BREAK- UP. CROSS EXAMINATION STATEMENT CONTAINS AN AVERMENT AS TO PAYMENT OF RS.600/- WHICH WAS NOT MADE AT THE ORIGINAL ASSE SSMENT STAGE. MR. THAKKAR 'S STATEMENT IS BOUND TO BE PREJUDICED SINCE HIS DAUGHTER DIED IN APPELLANT'S HOSPITAL CONSEQUENT TO WHICH MR. THAKKAR ALSO FILED CIVIL SUIT AGAINST THE APPELLANT . THE AR OF THE ASSESSEE SUBMITTED THAT IT IS A SETTL ED LAW THAT ONLY REAL INCOME CAN BE TAXED. HENCE, TAXING INCOME WORKED OU T MERELY ON THE BASIS OF ESTIMATION IS NOT TENABLE IN THE EYE OF LAW. THU S, LOWER AUTHORITIES ARE ITA NO.650/AHD/2011 13 NOT JUSTIFIED IN REJECTING APPELLANT'S BOOKS AND IN MAKING THE IMPUGNED ADDITION. IN THE INTEREST OF JUSTICE, IMPUGNED ADDI TION DESERVES TO BE DELETED. 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IN THE INSTANT CASE, THE AS SESSEE DECLARED INDOOR FEE AT RS.2,16,658/-, WHICH WAS ESTIMATED BY THE AO AT RS.7,22,193/-, AND CONSEQUENTLY, THE ADDITION OF RS.5,05,535/- WAS MADE TO THE INCOME OF THE ASSESSEE. THE SAID ADDITION WAS MADE ON THE BASIS OF THE STATEMENT OF SHRI AMRITLAL J. THAKKAR, FATHER OF ON E OF THE PATIENTS OF THE ASSESSEE, WHO CLAIMED TO HAVE PAID FEE OF RS.40 0/- FOR TWO DAYS, WHEREAS, THE ASSESSEE CLAIMED TO HAVE CHARGED SUCH FEE AT RS.60/- PER DAY. THIS ISSUE CAME BEFORE THE TRIBUNAL IN ITA NO .3051/AHD/2002 WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 14.9.2007 RESTORED BACK THE MATTER TO THE FILE OF THE AO WITH DIRECTION TO ALLO W ASSESSEE OPPORTUNITY TO CROSS-EXAMINE THE SAID SHRI AMRITLAL J. THAKKAR , AND THEREAFTER TO REFRAME THE ASSESSMENT AS PER LAW. ACCORDINGLY, TH E ASSESSEE WAS ALLOWED OPPORTUNITY TO CROSS-EXAMINE SHRI AMRITLAL J. THAKKAR ON 14.12.2009. A COPY OF THE SAID STATEMENT RECORDED ON CROSS- EXAMINATION WITH ITS ENGLISH VERSION IS PLACED AT P AGE NO.41 TO 46 OF THE PAPER BOOK. THE AO AFTER TAKING INTO CONSIDERATION THE STATEMENT RECORDED ON CROSS-EXAMINATION AGAIN MADE ADDITION O F THE SAME AMOUNT, WHICH WAS ALSO CONFIRMED BY THE CIT(A). 8. THE AR OF THE ASSESSEE POINTED OUT BEFORE US FRO M THE STATEMENT OF SHRI AMRITLAL J. THAKKAR RECORDED ON 23.1.1997 T HAT THE DAUGHTER OF SHRI AMRITLAL J. THAKKAR DIED IN THE NURSING HOME O F THE ASSESSEE, AND THEREAFTER, HE FILED A SUIT AGAINST THE ASSESSEE. THUS, SHRI AMRITLAL J. THAKKAR WAS HOSTILE TO THE ASSESSEE. FURTHER, SHR I AMRITLAL J. THAKKAR NOW CLAIMS TO HAVE PAID FEE OF NOT RS.400/- BUT RS. 1000/-, BUT WHEN ASKED TO GIVE BREAK-UP OF RS.1000/-, HE GAVE THE BR EAK-UP AS RS.200/- FOR ECT, RS.125/- ROOM CHARGES, RS.80/- VISIT CHARG ES FOR TWO DAYS. ITA NO.650/AHD/2011 14 FURTHER, WHEN SHRI AMRITLAL J. THAKKAR WAS ASKED TO FURNISH EVIDENCE OF HIS MAKING PAYMENT OF FEES, AS CLAIMED BY HIM TO HA VE PAID, SHRI AMRITLAL J. THAKKAR COULD NOT PRODUCE ANY RECEIPT. THUS, IN THE ABSENCE OF ANY EVIDENCE PRODUCED BY SHRI AMRITLAL J. THAKKA R, THE STATEMENT OF SHRI AMRITLAL J. THAKKAR IN THE FACTS OF THE CASE C ANNOT BE TREATED AS AN EVIDENCE AGAINST THE ASSESSEE. 9. IN REPLY, THE DR SUPPORTED THE ORDERS OF THE LOW ER AUTHORITIES. 10. WE FIND THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE NARRATED ABOVE, THE STATEMENT OF SHRI AMRITLAL J. THAKKAR CA NNOT BE READ AS EVIDENCE AGAINST THE ASSESSEE, WHEN HE WAS NOT ABLE TO ADDUCE ANY MATERIAL IN SUPPORT OF HIS STATEMENT, AND HE WAS IN LEGAL CONFRONTATION WITH THE ASSESSEE. WE FIND THAT NO COGENT REASON A S TO WHY THE STATEMENT OF SHRI AMRITLAL J. THAKKAR SHOULD BE TRE ATED MORE SACROSANCT THAN THE STATEMENT OF THE ASSESSEE. APART FROM THE STATEMENT OF SHRI AMRITLAL J. THAKKAR, THERE IS NO OTHER MATERIAL BRO UGHT ON RECORD BY THE REVENUE TO SHOW THAT THE ASSESSEE HAS ACTUALLY RECE IVED INDOOR FEE OF MORE THAN RS.2,16,658/- DURING THE YEAR UNDER CONSI DERATION. IN THE ABSENCE OF ANY MATERIAL BROUGHT ON RECORD TO CORROB ORATE THE STATEMENT OF SHRI AMRITLAL J. THAKKAR, IN OUR CONSIDERED OPIN ION, THE ADDITION MADE ON THE BASIS OF THE STATEMENT OF SHRI AMRITLAL J. T HAKKAR IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, IS NOT LEGALLY SUSTAINABLE. WE, THEREFORE, DELETE THE ADDITION OF RS.5,05,535/- AND ALLOW THE GROUND OF THE APPEAL OF THE ASSESSEE. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 2 ND FEBRUARY, 2015 AT AHMEDABAD. SD/- SD/- ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; 02/02/2015