DR ANJALI A. MALPANI, MUMBAI V. ACIT 11(2), MUMBAI

ITA 7617/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0558 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 25-04-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 27-12-2013
• Court: TRIBUNAL
• Department Lawyers: JAGDISH P JANGIDDR
• Assessee Lawyers: HARI S RAHEJA
• Section: 133A

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -ABENCH MUMBAI , , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND AMARJIT SINGH,JUDICIAL MEMBER ./I.T.A./7617/MUM/2013, / ASSESSMENT YEAR: 2002-03 DR. ANJALI A. MALPANI 6TH FLOOR, JAMUNA SAGAR, BHAGATSINGH ROAD,COLABA,MUMBAI-5. PAN:AAHPM0693E VS. THE ACIT, CIRCLE-11(2) AAYAKAR BHAVAN MUMBAI-400 020. ( /APPELLANT ) ( / RESPONDENT) ./I.T.A./7618/MUM/2013, / ASSESSMENT YEAR: 2002-03 DR. ANIRUDDHA N. MALPANI 6TH FLOOR, JAMUNA SAGAR, BHAGATSINGH ROAD,COLABA.MUMBAI-5. AACPM9738M VS. THE ACIT, CIRCLE-11(2) AAYAKAR BHAVAN MUMBAI-400 020. / REVENUE BY: SHRI JAGDISH P. JANGID-DR /ASSESSEE BY: SHRI HARI S. RAHEJA / DATE OF HEARING: 19/05/2017 / DATE OF PRONOUNCEMENT: 24.05.2017 PER RAJENDRA, AM - CHALLENGING THE ORDERS DATED 24/10/2013 OF THE CIT (A)-3,MUMBAI, BOTH THE ASSESSEES HAVE FILED THE APPEALS FOR THE ABOVE ASSESSMENT YEAR.AS THE ISSUE INVOLVED IN THE APPEALS IS IDENTICAL,SO,WE ARE ADJUDICATING THEM TOGETHER.ASSE SSEES ARE DOCTORS BY PROFESSION. THIS IS THE THIRD ROUND OF LITIGATION BEFORE THE,SO,WE WOUL D LIKE TO NARRATE THE FACTS BRIEFLY. ITA/7617/MUM/2013: 2. A SURVEY ACTION, U/S. 133A OF THE ACT,TOOK PLACE AT THE BUSINESS PREMISES OF THE ASSESSEES. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OF FICER (AO) CALLED FOR THE RECEIPT BOOKS OF THE ASSESSEE AND IMPOUNDED THE SAME.THE ASSESSEE IS AN INFERTILITY SPECIALIST AND PROVIDES SERVICES TO THE PATIENTS ALONG WITH HER HUSBAND.SHE WOULD RECEIVE FEES SEPARATELY FROM THE SAME PATIENT AND ACCOUNT FOR THEM IN THE RESPECTIVE BOOKS OF ACCOUNTS.BESIDES , THERE IS A PARTNERSHIP FIRM MALPANI INFERTILITY CLINIC AND IT CHARGES THE PATIENTS SEPARATELY FOR PROVIDING FACILITIES. RECEIPTS FROM THE PATIENTS ARE SHOWN IN THE BOOKS OF ACCOUNTS IN THE RATIO OF 40: 40: 20 IN THE BOOKS OF THE ASSESSEE, HUSBAND AND THE PA RTNERSHIP FIRM RESPECTIVELY. IF SERVICES OF AN ANESTHETIST IS TAKEN,SEPARATE CHARGES ARE COLLE CTED AND HANDED OVER TO HIM. 2.1. DURING THE ASSESSMENT PROCEEDINGS,THE AO NOTED THAT ON REVERSE OF ALL THE RECEIPTS CERTAIN FIGURES WERE APPEARING. HE OBSERVED THAT THERE WAS DIFFERENCE BETWEEN THE FIGURES APPEARING ON THE RECEIPT AND THE INCOME DECLARED BY THE ASSES SEES. IN THIS REGARD, IT WAS STATED BY THE ASSESSEE THAT THE CASHIER WOULD COLLECT AMOUNT FROM THE PATIENTS, THAT SAME IS DIVIDED AMONG 7617&7618-MALPANIS 2 THREE/FOUR ENTITIES.AN AFFIDAVIT OF THE CASHIER WAS ALSO FILED. AFTER CONSIDERING THE AVAILABLE MATERIAL,THE AO MADE ADDITION TO THE INCOME THE ASS ESSEE.MATTER TRAVELLED UP TO THE TRIBUNAL. 3. THE FIRST APPELLATE AUTHORITY (FAA)WAS DIRECTED BY THE TRIBUNAL TO ADJUDICATE THE ISSUE AFRESH.IN PURSUANCE OF THE DIRECTIONS OF THE TRIBUN AL,THE ASSESSEE FURNISHED ADDRESSES OF THE PATIENTS AVAILABLE WITH HER AND THE DETAILS OF VARI OUS RECEIPTS AND HOW THE SAME WERE ACCOUNTED FOR IN THE HANDS OF THREE ENTITIES.HE CAL LED FOR A REMAND REPORT FROM THE AO AND ACCEPTED THE CLAIM OF THE ASSESSEE THAT IT WAS A CA SE OF DOUBLE ADDITION I.E. SAME AMOUNT WAS ADDED IN HER HANDS AND IN THE HANDS OF HER HUSBAND. HE ALSO CARRIED OUT AN EXERCISE ON TEST CHECK BASIS AND INFORMED THE FAA THAT FIGURE WRITTE N BEHIND ON RECEIPTS WAS THE CUMULATIVE FIGURE THAT WAS DISTRIBUTED BETWEEN BOTH THE ASSESS EES.THE FAA,DURING THE APPELLATE PROCEEDINGS,ASKED THE ASSESSEE TO FILE CERTAIN DETA ILS.AFTER CONSIDERING THE SAME,HE GRANTED RELIEF IN RESPECT OF COMMON PATIENTS. BUT,IN RESPEC T OF AGGREGATE ADDITION,BEING MORE THAN A CERTAIN RANGE,ONLY LIMITED RELIEF WAS GRANTED. 4. THE ASSESSEE AGAIN PREFERRED AN APPEAL BEFORE THE T RIBUNAL. IT WAS ARGUED THAT THERE WAS NOT A SINGLE INSTANCE WHERE THE AO HAD BEEN ABLE TO POI NT OUT ANY RECEIPT OVER AND ABOVE WHAT HAD BEEN DECLARED BY THE ASSESSEE,THAT THERE WAS NO T AN INSTANCE TO SHOW THAT BIFURCATIONS CLAIMED BY THE ASSESSEE IN THREE HANDS (I.E. THE A SSESSEE ,HER HUSBAND AND THE PARTNERSHIP) INCORRECT,THAT THE AO HAD NOT POINTED OUT ANY DEFEC TS IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE, THAT THE REVENUE AUTHORITIES HAD NOT POINTED OUT AN Y MISTAKE IN THE RECONCILIATION STATEMENTS AND CHARTS FILED BEFORE THEM. IT WAS ALSO STATED TH AT THE ASSESSEE WAS INTERESTED IN BRINGING AN END TO THE LITIGATION,THAT THE MATTER WAS VERY OLD, THAT A SMALL ADDITION COULD BE SUSTAINED IN ORDER TO MEET ANY EVENTUALITY OF ANY INCOME ESCAPIN G ASSESSMENT ON ACCOUNT OF ANY ERROR IN RECONCILIATIONS.THE TRIBUNAL ADJOURNED THE CASE FOR ONE DAY. DURING THE NEXT HEARING, THE AUTHORISED REPRESENTAT IVE OF THE ASSESSEE, AFTER CONSULTATION WITH HER, PROPOSED TO RETAIN AN ADDITION NOT EXCEEDING R S. 2 LAKHS IN THE HANDS OF BOTH THE ASSESSEES.VIDE ITS ORDER DATED 14/09/2016, THE TRIB UNAL CONFIRMED THE ADDITION TO THE TUNE OF RS.7 LAKHS AS UNDISCLOSED INCOME IN THE HANDS OF TH E ASSESSEE AS AGAINST THE ADDITION OF RS. 12.19 LAKHS MADE BY THE FAA.THE ASSESSEE FILED A MI SCELLANEOUS APPLICATION BEFORE THE TRIBUNAL AND THE ORDER WAS RECALLED.IN ITS ORDER, DATED 06/03/2017 (MA/386/MUM/2016) THE TRIBUNAL OBSERVED THAT THE ASSESSEE HAD FILED AN MA CONTENTING THAT THE ADDITION OF RS.7.00 LAKHS WAS ON HIGHER SIDE, THAT THERE WAS A MISTAKE OF FACT IN UNDERSTANDING BY THE TRIBUNAL OF THE OFFER OF SETTLEMENT/CONCESSION MADE BY THE LD. COUNSEL FOR THE ASSESSEE WHICH WAS TO 7617&7618-MALPANIS 3 RESTRICT THE SUSTAINING OF ADDITION TO THE TUNE OF RS.2.00 LAKHS, THAT THE ASSESSEE HAD A GOOD CASE ON MERITS,THAT THE ASSESSEE WAS REQUESTING TO RESTRICT THE ADDITION TO RS.2.00 LAKHS OR ELSE TO RECALL THE ORDERS. ACCORDINGLY, THE ORDERS WERE RECALLED BY THE TRIBUNAL IN BOTH THE CASES. 5. DURING THE COURSE OF HEARING BEFORE US, THE AUTHORI SED REPRESENTATIVE NARRATED THE FACTS OF THE CASE AND STATED THAT THE ASSESSEE HAD AGREED FO R ADDITION OF RS. 2 LAKHS TO BRING AN END THE LITIGATION OF A MATTER WHICH WAS PENDING FOR A LONG PERIOD, THAT THE AO/FAA HAD NOT POINTED OUT ANY DISCREPANCY IN THE BOOKS OF ACCOUNTS MAINTA INED BY HER, THAT THE IN ITS ORDER HAD OBSERVED THAT THE ASSESSEE HAD AGREED FOR ADDITION OF RS. 2 LAKHS ONLY. THE DEPARTMENTAL REPRESENTATIVE STATED THAT MATTER COULD BE DECIDED ON MERITS. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT WHILE ADJUDICATING THE MISCELLANEOUS APPLICATION, FILED B Y THE ASSESSEE, THE TRIBUNAL HAD OBSERVED THAT THE ASSESSEE HAD AGREED THAT ADDITION TO HER I NCOME SHOULD BE RESTRICTED IT TO THE EXTENT OF RS.2 LAKHS,THAT THE OFFER WAS MADE AFTER THE AUTHOR ISED REPRESENTATIVE HAD SOUGHT TIME FOR ONE DAY TO DISCUSS THE ISSUE WITH THE ASSESSEE,THAT THE AO/FAA HAD GONE THROUGH THE CHARTS/ RECONSIDERATION STATEMENTS FILED BY HER AND HAD NOT POINTED ANY DEFECT IN THE MANNER THE ACCOUNTS WERE MAINTAINED. THE MATTER IS PENDING FROM THE DAY WHEN A SURVEY AC TION WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE.THE ASSESSEE, ON ITS OWN, HAD OFFERED THAT AD HOC ADDITION COULD BE MADE SO THAT THE LITIGATION COMES TO AN END. CONSID ERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE,WE ARE OF THE OPINION THAT IN THE INTER EST OF JUSTICE ADDITION SHOULD BE RESTRICTED TO RS. 2 LAKHS. EFFECTIVE GROUND OF APPEAL IS ALLOWED IN FAVOUR OF THE ASSESSEE,IN PART. ITA/7618/MUM/2013. 7. FACTS IN CASE OF THE HUSBAND OF THE ASSESSEE ARE ID ENTICAL TO THE FACTS OF HER CASE. THEREFORE FOLLOWING THE EARLIER ORDER,WE HOLD THAT ADDITION O F RS. 2 LAKHS SHOULD BE MADE IN THE HANDS OF DR.ANIRUDDHA MALPANI ALSO. A RESULT APPEALS FILED B Y BOTH THE ASSESSEES STAND PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH ,MAY, 2017. 2017 SD/- SD/- ( / AMARJIT SINGH ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 24.05.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 7617&7618-MALPANIS 4 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.