Brij Basant Hospitals Pvt.Ltd., Ahmedabad V. The ACIT.,Cent.Circle-2(3), Ahmedabad

ITSSA 482/AHD/2011

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7288 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 year(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-07-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 28-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Document seized; Documents seized
• Section: 143(3)

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER () . / I.T.(SS)A. NO. 482/AHD/2011 ( ASSESSMENT YEAR : 2008-09) BRIJ BASANT HOSPITALS PVT. LTD. 23, HATKESH SOCIETY, DARPAN 5 ROADS, NAVRANGPURA, AHMEDABAD / VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2(3), AHMEDABAD ./ ./ PAN/GIR NO. : AABCB7677C ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M. K. PATEL, A.R. / RESPONDENT BY : SHRI APOORVA BHARDWAJ, SR.D.R. !' DATE OF HEARING 09/07/2019 #$%& !' / DATE OF PRONOUNCEMENT 29/07/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-III, AHMEDABAD (CIT(A) IN SHORT), DATED 13.07.2011 ARISING IN THE ASSESSMENT ORDER DATED 31.12.2010 PA SSED BY THE IT(SS)A NO. 482/AHD/11 [BRIJ BASANT HOSPITALS PVT. LTD. VS. ACIT] A.Y. 2008-09 - 2 - ASSESSING OFFICER (AO) UNDER S. 153C R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING AY 2008-09. 2. THE SOLITARY GROUND OF APPEAL RAISED BY THE ASSE SSEE IS TOWARDS DISPUTING ADDITION OF RS.15,17,970/- MADE BY THE AO ON ACCOUNT OF SUPPRESSION OF PROFESSIONAL INCOME. 3. THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGE D IN THE BUSINESS OF RUNNING A HOSPITAL. A SEARCH ACTION UN DER S.132 OF THE ACT WAS CARRIED OUT IN THE CASE OF DIRECTOR OF THE COMP ANY DR. MUKESH BRIJMOHAN BANSAL AND DR. KANTI MUKESH BANSAL ON 21. 08.2008. IN THE SEARCH, CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE HEREIN WERE FOUND AND SEIZED. CONSEQUENTLY, PROCEEDINGS UNDER S.153C WERE INITIATED AGAINST THE ASSESSEE. THE ADDITION OF RS.15,17,970 /- WAS MADE IN THE HANDS OF THE ASSESSEE BASED ON CERTAIN ENTRIES FOUN D IN THE PREMISES OF THE DIRECTORS OF THE ASSESSEE COMPANY. 4. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE CIT(A) TOOK NOTE OF THE SUBMISSIONS MADE BY THE ASSESSEE IN ITS DEFENSE BUT HOWEVER FOUND NO MERIT IN THE PLEA OF T HE ASSESSEE FOR DELETION OF THE SUPPRESSED INCOME. THE RELEVANT OP ERATIVE PARA OF THE ORDER OF THE CIT(A) IS REPRODUCED HEREUNDER: 5. I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELL ANT. ON THE PERUSAL OF THE CHART SUBMITTED BY THE AR BEFORE ME, IT IS N OTICED THAT THE APPELLANT HAS CONSIDERED THE PROFESSIONAL RECEIPTS IN RESPECT OF 19 PATIENTS HAVING FOLLOWING CASE NUMBERS: NO. CASE NO. NAME OF PATIENT 1. 2406 SAMAR NASIRHUSSAIN SHAIKH 2. 2407 SAVITA SUBRAMANIAM 3. 2408 DEEPALI JITESH TRIPATHI 4. 2411 SUBHADEVI SHIV SHAKTI 5. 2412 NAKIA MOIZE GABUJI 6. 2416 MEENA DEEPAK PATEL IT(SS)A NO. 482/AHD/11 [BRIJ BASANT HOSPITALS PVT. LTD. VS. ACIT] A.Y. 2008-09 - 3 - 7. 2429 HELIBEN UMEDBHAI 8. 2442 VIJAY LAXMI VADILAL PATEL 9. 2445 SHRUTI ASHISH GARG 10. 2448 KANTA DHANJI DESAI 11. 2457 ANITA SANJAY VERMA 12. 2465 AJAB AJGARALI MITHAWALA 13. 2473 HANSA CHANDRASINH RATHOD 14. 2474 SUSHILA DILIP JADAV 15. 2475 RUPAL VIVEK SHAH 16. 2487 RAMILA NAVIN SANGHAVI 17. 2488 RITA JAYESH GANDHI 18. 2489 SAKINA AZIZ JUKKED 19. 2496 PYARIBEN BHURARAM PRAJAPATI 5.1. AS PER ANNEXURE 1 TO THE ASSESSMENT ORDER THE ACTUAL AMOUNT RECEIVED FROM 11 PATIENTS COMES TO RS. 12, 43,000 A ND AS PER ANNEXURE 2 TO THE ASSESSMENT ORDER THE ACTUAL AMOUNT AS PER SE IZED DOCUMENTS RECEIVED FROM 11 PATIENTS COMES TO RS. 10,79,000. I N OTHER WORDS AS PER THE SEIZED DOCUMENTS, THE APPELLANT HAS CHARGED TOT AL FEES OF RS. 23, 22.000 FROM 22 PATIENTS. AS CAN BE SEEN FROM THE CH ART PREPARED BY THE AK THAT THE CASE NUMBERS STARTED FROM 2406 AND THE LAST CASE NUMBER WAS 2496. IN OTHER WORDS, DURING THE YEAR UNDER CONSIDE RATION THE APPELLANT HAD EXAMINED AT LEAST 91 (= 2496-2405) PATIENTS. TH E CASE OF THE AR IS THAT THE APPELLANT HAS SHOWN MORE TOTAL RECEIPTS TH AN AS PER THE SEIZED DOCUMENTS, THEREFORE THE AO WAS NOT JUSTIFIED IN MA KING AN ADDITION ON ACCOUNT OF SUPPRESSED PROFESSIONAL INCOME. IN THIS CONNECTION, IT IS TO BE SLATED THAT IN THE CASH BOOK THE APPELLANT HAS SHOW N THE PROFESSIONAL RECEIPTS FROM OTHER 69 PATIENTS ALSO, WHICH WAS NOT CONSIDERED BY ME AO IN THE ASSESSMENT ORDER BECAUSE THE AO HAS CONSIDER ED ONLY THOSE AMOUNTS WHICH ARE APPEARING IN THE SEIZED RECORDS. IN OTHER WORDS, THE TOTAL RECEIPTS AS PER THE CASH BOOK OF THE APPELLAN T ARE MORE BECAUSE THE APPELLANT MUST HAVE RECEIVED PROFESSIONAL RECEIPTS FROM OTHERS 69 PATIENTS. IT CANNOT BE SAID THAT THE APPELLANT DID NOT CHARGE ANY AMOUNT FROM THESE 69 PATIENTS. 6. I HAVE ALSO EXAMINED THE CASH BOOK OF THE APPELL ANT. IN THE CASH BOOK THE TOTAL COLLECTION OF A PARTICULAR DAY HAS B EEN WRITTEN. IT IS NOT MENTIONED AS TO FROM WHICH PATIENT WHAT AMOUNT HAS BEEN RECEIVED BY THE APPELLANT. THE CONTENTION OF THE AR IS THAT SINCE T HE ACCOUNTANT WAS ATTENDING THE OFFICE OF THE APPELLANT AFTER 2 TO 3 DAYS, HE WAS NOT WRITING THE CASH BOOK ON DAY TO DAY BASIS. THIS CONTENTION OF THE APPELLANT IS NOT CONVINCING TO ME PARTICULARLY WHEN ON A PARTICULAR DAY WHEN A PATIENT HAS MADE A PAYMENT OF SAY, RS. 17,000 ON 7/9/2007, THEN , THE ACCOUNTANT WILL NOT WRITE THE TOTAL COLLECTION AS RS. 17,000 ON 7/9 /2007 BILL AS RS. 3500 ON 7/9/2007, RS. 2500 ON 8/9/2007 AND THE AMOUNT OF RS . 3500 ON 10/9/2007 AS CONTENDED BY THE AR, THE ACCOUNTANT WOULD WRITE COLLECTION OF RS. 17.000 ON 7/9/2007 ITSELF IF HE HAD ATTENDED THE OF FICE OF THE APPELLANT ON 7/9/2007. HE WILL NOT WRITE THE AMOUNT OF RS. 17.00 0 AS RECEIVED IN PARTS IN VARIOUS DAYS. IF THE ACCOUNTANT HAD NOT COME ON 7/9/2007, THEN NO ENTRY OF THIS DALE SHOULD HAVE BEEN WRITTEN IN THE CASH B OOK. BUT AS PER THE CASH IT(SS)A NO. 482/AHD/11 [BRIJ BASANT HOSPITALS PVT. LTD. VS. ACIT] A.Y. 2008-09 - 4 - BOOK, ENTRY OF CASH RECEIPT OF RS. 3500 HAS BEEN ME NTIONED IN THE CASH BOOK WHICH MEANS THAT THE ACCOUNTANT HAD ATTENDED T HE OFFICE OF THE APPELLANT ON 7/9/2007. IF IT IS SO, THEN HE SHOULD HAVE WRITTEN THE CASH RECEIPT OF RS. 17,000 ON 7/9/2007 ITSELF. THE CONTE NTION OF THE AR COULD HAVE BEEN ACCEPTED BY ME IF THERE WAS NO ENTRY OF 7 /9/2007 IN THE CASH BOOK AND THE ENTRY OF RS. 17,000 WAS MADE ON THE SU BSEQUENT DATE WHEN THE ACCOUNTANT ATTENDED THE OFFICE OF THE APPELLANT . HOWEVER, THIS IS NOT THE CASE OF THE APPELLANT. IN FACT, OUT OF THE AMOU NT OF RS. 17,000 RECEIVED ON 7/9/2007, THE APPELLANT ACCOUNTED FOR ONLY 3500 AND THE BALANCE AMOUNT OF RS. 13,500 REMAINS UNACCOUNTED. THE AMOUN T OF RS. 2500 AND RS. 3500 SHOWN AS RECEIVED ON 8/9/2007 AND 10/9/200 7 RESPECTIVELY IS NOT OUT OF THIS AMOUNT OF RS.17,000 BUT RECEIVED FROM S OME OTHER PATIENTS ON 8/9/2007 AND 10/9/2007. THEREFORE THE CONTENTION OF THE APPELLANT ON THIS POINT CANNOT BE ACCEPTED BY ME. FURTHER, THE CONTEN TION OF THE AR THAT THE ENTRIES MENTIONED IN THE BACK SIDE OF THE CASE PAPE RS OF A PARTICULAR PATIENT IS ONLY AN ESTIMATE AND DOES NOT REFLECT TH E CORRECT AMOUNT OF FEES CHARGED, DOES NOT APPEAR TO BE CORRECT PARTICULARLY WHEN AGAINST SUCH DATE THE AMOUNT HAS BEEN SHOWN AS RECEIVED. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE AR DID NOT PLACE ANY ARG UMENTS ON THIS POINT. THEREFORE, I AM CONVINCED THAT THE ENTRIES WRITTEN BY THE APPELLANT ON THE BACK SIDE OF THE CASE PAPERS OF A PARTICULAR PATIEN T IS ACTUAL AMOUNT COLLECTED FROM THE CONCERNED PATIENT BY THE APPELLA NT. ANOTHER CONTENTION OF THE AR THAT THE FIGURES MENTIONED ON THE BACK SI DE OF THE CASE PAPERS IS NOT IN CODED FORM BUT ACTUAL FIGURES IS ALSO NOT AC CEPTABLE TO ME BECAUSE AT THE TIME OF SEARCH DR. KANTI BANSAL, ONE OF THE DIRECTORS OF THE APPELLANT COMPANY ADMITTED THAT THE FIGURES ARE WRI TTEN IN CODE. 5. FURTHER AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. 5.1 THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET R EFERRED TO THE STATEMENT OF DR. KANTI BANSAL AND ATTEMPTED TO CANV ASS THAT THE ENTRIES MADE IN THE LOOSE PAPER FOUND IN THE PREMISES WERE ONLY PROPOSED FEES AND WHICH WERE NOT NECESSARILY REALIZED. THE LEARN ED AR REFERRED TO A TABULATED STATEMENT AS REFLECTED IN PARA 3 OF THE C IT(A) AND CONTENDED THAT THE ASSESSEE HAS RECONCILED THOSE ENTRIES APPE ARING IN THE LOOSE PAPER WITH THE BOOKS AND HAS IN FACT RECORDED MORE INCOME AT TIMES IN THE BOOKS THAN WERE FOUND IN THE DOCUMENT SEIZED. IN THIS REGARD, THE LEARNED AR SUBMITTED THAT THE TOTAL GROSS RECEIPT A S REFLECTED IN THE BOOKS OF ACCOUNTS STANDS AT RS.35.14LAKHS AS AGAINS T GROSS RECEIPT OF RS.23.22 LAKHS IN THE SEIZED DOCUMENT. IT WAS CONT ENDED THAT THE ENTRIES IN PATIENT CASE PAPER ONLY SIGNIFIES MEMORA NDUM OF FEES IT(SS)A NO. 482/AHD/11 [BRIJ BASANT HOSPITALS PVT. LTD. VS. ACIT] A.Y. 2008-09 - 5 - PROPOSED AND THE ACTUAL INCOME HAS BEEN DULY RECORD ED AS AND WHEN REALLY MATERIALIZED. THE LEARNED AR EMPHASIZED THA T THE ASSESSEE IS IN MEDICAL PROFESSION WHERE THE PATIENTS AFTER HAVING TAKEN THE QUOTE TOWARDS PROBABLE PROFESSIONAL FEE DO NOT NECESSARIL Y TURN UP AND THEREFORE THE AMOUNT MENTIONED IN THE SLIPS ARE NOT NECESSARILY THE INCOME REALIZED BY THE ASSESSEE. THE LEARNED AR UR GED FOR DELETION OF THE ADDITION. 5.2 THE LEARNED DR, ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES AND CONTENDED THAT TELL-TALE EVID ENCES WERE DISCOVERED SHOWING UNACCOUNTED SALES WHICH IS ALSO SUPPORTED BY THE STATEMENT RECORDED UNDER S.132(4) OF THE ACT OF THE DIRECTOR OF THE COMPANY. IT WAS POINTED OUT THAT THE DIRECTOR HAS NOWHERE STATED THE NARRATIVE SOUGHT TO BE PROPOUNDED AT THE LATER STAG E TOWARDS PROVISIONAL NATURE OF THE ENTRIES RECORDED. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE CORRECTNESS OF THE ADDITIONS TOWARDS SUPPRESSION OF SALES IS IN CONTROVERSY. WE HAVE ALSO PERUSED THE ORDER OF THE CIT(A). IT IS THE CONTENTION OF THE ASSESSEE THAT THE TOTAL RECEIPTS DECLARED IN THE CASH BOOK EXCEEDS THE RECEIPTS RECORDED IN THE SEIZED DO CUMENTS AND THEREFORE, THE AO WAS NOT JUSTIFIED IN MAKING THE A DDITIONS ON ACCOUNT OF SUPPRESSED PROFESSIONAL INCOME. WE FIND THAT TH E CIT(A) HAS RECORDED THAT PROFESSIONAL RECEIPTS ON ACCOUNT OF 1 9 PATIENTS WAS IN DISPUTE WHEREAS THE PROFESSIONAL RECEIPTS FROM OTHE R 69 PATIENTS WERE ALSO RECORDED IN THE BOOKS. A PERUSAL OF THE ORDER OF THE CIT(A) WOULD SHOW THAT ASSESSEE HAS FAILED TO GIVE ANY CON VINCING EXPLANATION FOR MISMATCH IN THE ENTRY. THE NARRATI VES MADE ON BEHALF OF THE ASSESSEE THAT THE ENTRIES RECORDED IN THE SE IZED DOCUMENT ARE MEMORANDUM OR ONLY PROBABLE REQUIRE TO BE CORROBORA TED. THE CIT(A) HAS EXAMINED THE ISSUE THREADBARE AND HAS DEALT WIT H ALL FACTUAL IT(SS)A NO. 482/AHD/11 [BRIJ BASANT HOSPITALS PVT. LTD. VS. ACIT] A.Y. 2008-09 - 6 - NARRATIVES MADE ON BEHALF OF THE ASSESSEE. THE CIT (A) ON THE BASIS OF SUCH FACTUAL ANALYSIS CAME TO THE CONCLUSION THAT E NTRIES WRITTEN BY THE ASSESSEE ON THE BACK SIDE OF THE CASE PAPERS OF A P ARTICULAR PATIENT IS ACTUAL AMOUNT COLLECTED FROM THE CONCERN PATIENT BY THE ASSESSEE. ON PERUSAL OF THE STATEMENT OF DR. KANTI BANSAL, WE AR E UNABLE TO SEE ANY AVERMENT TO THE EFFECT THAT THE SEIZED DOCUMENTS DO NOT REFLECT ACTUAL RECEIPTS. SUCH FACTS ARE WITHIN KNOWLEDGE OF THE A SSESSEE AND OUGHT TO HAVE BEEN POINTED OUT TO THE REVENUE AT THE FIRST A VAILABLE OPPORTUNITY. THE ENTIRE EXPLANATION IS AN AFTERTHO UGHT WITHOUT ANY MERIT. WE THUS CONCUR WITH THE VIEW EXPRESSED BY T HE CIT(A) WITHOUT ANY DEMUR. HENCE, WE DECLINE TO INTERFERE. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. SD/- SD/- (RAJPAL YADAV) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 29/07/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- ). / REVENUE 2. / ASSESSEE +. ,-.! /! / CONCERNED CIT 4. /!- / CIT (A) 2. 345 6!6-.7 ' -.&7 89, / DR, ITAT, AHMEDABAD :. 5;< = / GUARD FILE. BY ORDER / 7 /8 ' -.&7 89, THIS ORDER PRONOUNCED IN OPEN COURT ON 29/07/2019