Dr. Bharat S. Mody, Baroda V. The ACIT, Cent. Circle-2, Baroda

MA 131/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2211 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-07-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 27-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B KULSHRESTHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SRI G.C. GUPTA, VICE PRESIDENT AND SHRI ANIL CHATURVEDI, ACCOUNTAN T MEMBER DR. BHARAT S. MODY, 101/103, AAKASHGANGA COMPLEX, NEAR VANIJYA BHAVAN, RACE COURSE CIRCLE, VADODARA-390007 PAN: ACGPM5950M (APPELLANT) VS ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, BARODA (RESPONDENT) ASSESSEE BY: SRI MUKUND BAKSHI, A.R. REVENUE BY: SRI B. KULSHRESTHA, SR. D.R . DATE OF HEARING : 18-07-2014 DATE OF PRONOUNCEMENT : 22-08-20 14 / ORDER PER : ANIL CHATURVEDI, ACCOUNTANT MEMBER:- THESE 6 M.A.S ARE ARISING OUT OF CONSOLIDATE D ORDER DATED 22.2.2013 IN ITA NO 2266 TO 2268 & 2270 TO 2 272/AHD/2009 FOR ASSESSMENT YEARS 2000-01, 01-02, 02-03, 04-05, 05-0 6 & 2003-04 RESPECTIVELY. MA NOS. 128-133/AHD/2013 (IN ITA NOS. 2266-2268 & 2270-2272/AHD/2009 A.Y. 2000-01,01-02,02-03,04-05,05-06 & 2003-04 M.A NOS. 128-132/AHD/2013 A.Y. 00-01,01-02,02-03,0 4-05,05-06 & 03-04 PAGE NO. BHARAT S. MODY VS. ACIT 2 2. THROUGH THESE M.AS THE ASSESSEE HAS SUBMITTED TH AT WHILE PASSING THE AFORESAID ORDER, THE HONBLE TRIBUNAL HAS NOT T AKEN INTO CONSIDERATION OR FULLY DEALT WITH THE CONTENTIONS TAKEN BY THE AS SESSEE, THE ESTIMATION HAS NO CORRELATION WITH ANY ASSET FOUND NOR ANY EVI DENCE IN RELATION THERETO AND THE ESTIMATION OF INCOME HAS RESULTED I NTO ENHANCEMENT IN INCOME IN SOME OF THE YEARS, THOUGH NO APPEAL WAS P REFERRED BY THE REVENUE IN THOSE YEARS. IT IS THEREFORE SUBMITTED T HAT THERE IS MISTAKE APPARENT FROM RECORD WHICH NEEDS TO BE RECTIFIED AN D THEREFORE THE ORDER BE RECALLED. 3. BEFORE US, THE LD. A.R. REITERATED THE SUBMISSIO NS MADE IN THE MA. HE FURTHER SUBMITTED THAT THE ESTIMATION HAS NO COR RELATION WITH THE ASSETS FOUND AS THE ASSETS FOUND AT THE TIME OF SEARCH WER E TO THE EXTENT OF RS. 5,56,500/- AND THEREFORE THE ADDITION SHOULD HAVE B EEN RESTRICTED TO THE ASSET FOUND. HE FURTHER SUBMITTED THAT THE ESTIMAT ION OF FEES PER OPERATION MADE BY THE HONBLE TRIBUNAL HAS RESULTED INTO ENHA NCEMENT EVEN IN THE YEARS WHERE REVENUE IS NOT IN APPEAL. HE ALSO PLACE D ON RECORD A CHART SHOWING THE ADDITIONS MADE BY LD A.O. AND RELIEF GR ANTED BY LD.CIT(A) AND THE TRIBUNAL IN DIFFERENT ASSESSMENT YEARS. HE THEREFORE SUBMITTED THAT IN VIEW OF THE AFORESAID THERE IS APPARENT MISTAKE IN THE ORDER AND THEREFORE THE ORDER BE RECALLED. THE LD. D.R ON TH E OTHER HAND OBJECTED TO THE M.A. OF THE ASSESSEE AND SUBMITTED THAT ON THE BASIS OF MATERIAL ON RECORD, HONBLE TRIBUNAL HAS ESTIMATED THE FEES PER OPERATION AND THAT THERE WAS NO APPARENT MISTAKE IN THE ORDER OF HONB LE TRIBUNAL WHICH NECESSITATES THE RECALLING OF THE ORDER AND THUS OP POSED THE REQUEST OF THE LD. A.R. M.A NOS. 128-132/AHD/2013 A.Y. 00-01,01-02,02-03,0 4-05,05-06 & 03-04 PAGE NO. BHARAT S. MODY VS. ACIT 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS A FACT THAT A CONSOLIDATED ORDER WAS PASSED FOR AY 2000-01 TO AY 2005-06. FROM THE ORDER, IT IS SEEN THAT THE INC OME FROM OPERATION PER KNEE IN CASE OF NON PSU PATIENTS WAS ESTIMATED FOR VARIOUS ASSESSMENT YEARS AS PER PARA 18 OF THE ORDER. 5. FROM THE CHART SUBMITTED BY LD A.R. IT IS SEEN T HAT FOR AY 2000-01, AGAINST THE ESTIMATE OF RS 75,000/- AS INCOME FROM PER OPERATION AS CONSIDERED BY AO, CIT(A) GRANTED RELIEF BY ESTIMATI NG THE INCOME PER OPERATION TO RS. 71,000/- AGAINST WHICH, THE INCOME WAS ESTIMATED AT RS 73,000/- PER OPERATION BY THE TRIBUNAL. IT IS ALSO A FACT THAT FOR AY 2000-01, REVENUE IS NOT IN APPEAL AGAINST THE ORDER OF LD. C IT(A) AND THEREFORE THE ESTIMATION OF RS 73,000/- MADE BY TRIBUNAL AS AGAIN ST RS. 71,000/- MADE BY LD. CIT(A) HAS RESULTED IN ENHANCEMENT OF INCOME . IT IS A SETTLED LAW THAT THE TRIBUNAL HAS NO POWER OF ENHANCEMENT AND T HEREFORE ESTIMATION OF RS. 73,000/- PER OPERATION IS A MISTAKE APPARENT FR OM RECORD. IN VIEW OF THE AFORESAID FACTS, WE RESTRICT THE ESTIMATION OF INCOME PER OPERATION OF NON PSU PATIENTS IN AY 2000-01 TO RS 71,000/- WHICH WAS MADE BY CIT(A) AND THUS THE MA FOR A.Y. 2000-01 IS ALLOWED. 6. WITH RESPECT TO AY 2001-02, IT IS SEEN THAT AGAI NST THE ESTIMATION OF RS 80,000/- PER OPERATION MADE BY AO, LD. CLT(A) HA D ESTIMATED THE INCOME FROM OPERATION AT RS. 73,500/- PER OPERATION AND WHICH HAS ALSO BEEN UPHELD BY TRIBUNAL. IT IS ALSO A FACT THAT FOR AY 2001-02, THE REVENUE IS NOT IN APPEAL BEFORE TRIBUNAL. THUS THE EFFECT OF THE TRIBUNAL ORDER IS M.A NOS. 128-132/AHD/2013 A.Y. 00-01,01-02,02-03,0 4-05,05-06 & 03-04 PAGE NO. BHARAT S. MODY VS. ACIT 4 THAT THE ORDER OF LD. CIT(A) IS CONFIRMED. SINCE N O MISTAKE HAS BEEN POINTED OUT BY LD. A.R. IN THE ORDER FOR A.Y. 2001- 02, THE M.A. FOR A.Y. 2001-02 IS DISMISSED. 7. WITH RESPECT TO AY 2002-03, IT IS SEEN THAT AGAI NST THE ESTIMATION OF RS 85,000/- PER OPERATION MADE BY AO, LD. CIT(A) HA D ESTIMATED THE INCOME AT RS. 76,000/- PER OPERATION AND TRIBUNAL H AS ESTIMATED THE INCOME FROM PER OPERATION AT RS 75,000/-. FOR AY 20 02-03, THE REVENUE IS NOT IN APPEAL BEFORE US AND FURTHER FOR AY 2002-03, THE LD. A.R. HAS NOT POINTED OUT ANY MISTAKE WHICH CAN BE TERMED AS APPA RENT MISTAKE ON RECORD NOR THERE HAS BEEN ANY ENHANCEMENT OF INCOME BASED ON THE ESTIMATION OF INCOME PER OPERATION AND THEREFORE WE FIND NO REASON TO INTERFERE WITH THE ORDER OF AY 2002-03 AND THUS THE M.A. FOR A.Y. 2002-03 IS DISMISSED. 8. WITH RESPECT TO AY 2003-04, IT IS SEEN THAT AGAINST THE ESTIMATION OF RS 90,000/- PER OPERATION MADE BY AO, LD. CIT(A) HA D ESTIMATED THE INCOME AT RS 77,500/- PER OPERATION AND TRIBUNAL HA S ESTIMATED THE INCOME FROM OPERATION TO RS 78,000/-. IT IS ALSO A FACT THAT FOR AY 2003-04 BEFORE US, THE REVENUE IS ALSO IN APPEAL AGAINST TH E ORDER OF LD. CIT(A). FOR AY 2003-04, THE LD. A.R HAS NOT POINTED OUT ANY MISTAKE WHICH CAN BE TERMED AS APPARENT MISTAKE ON RECORD AND THEREFORE WE FIND NO REASON TO INTERFERE WITH THE ORDER OF AY 2003-04 AND THUS THE M.A. FOR A.Y. 2003-04 IS DISMISSED. 9. WITH RESPECT TO AY 2004-05, IT IS SEEN THAT AGAI NST THE ESTIMATION OF RS 95,000/- PER OPERATION MADE BY AO, LD. CIT(A) AN D TRIBUNAL HAD M.A NOS. 128-132/AHD/2013 A.Y. 00-01,01-02,02-03,0 4-05,05-06 & 03-04 PAGE NO. BHARAT S. MODY VS. ACIT 5 ESTIMATED THE INCOME AT RS 80,500/- PER OPERATION. IT IS ALSO A FACT THAT FOR AY 2004-05 AGAINST THE ORDER OF LD. CIT(A), THE REV ENUE IS ALSO IN APPEAL BEFORE US. FOR AY 2004-05, THE LD. A.R, HAS NOT POI NTED OUT ANY MISTAKE WHICH CAN BE TERMED AS APPARENT MISTAKE ON RECORD A ND THEREFORE WE FIND NO REASON TO INTERFERE WITH THE ORDER OF AY 2004-05 AND THUS THE M.A. FOR A.Y. 2004-05 IS DISMISSED. 10. WITH RESPECT TO AY 2005-06, IT IS SEEN THAT AGA INST THE ESTIMATION OF RS 1,00,000/- PER OPERATION MADE BY AO, LD. CIT(A) HAD ESTIMATED THE INCOME AT RS 82,000/- PER OPERATION AND TRIBUNAL HAS ESTIMATE D THE INCOME FROM OPERATION TO RS. 90.000/-. IT IS A FACT THAT FOR AY 2005-06, AGAINST THE ORDER OF LD. CLT(A), REVENUE IS ALSO IN APPEAL BEFORE US. FOR AY 2005-06, THE LD. A.R. HAS SUBMITTED THAT THE EST IMATION MADE IS ON A HIGHER SIDE THAT MADE IN PREVIOUS YEARS AND THERE W AS NO BASIS FOR MAKING A HIGHER ESTIMATION. HE FURTHER SUBMITTED THAT AT T HE TIME OF HEARING IT WAS SUBMITTED THAT DURING THE COURSE OF SEARCH UNDISCLO SED INVESTMENT/ASSETS TO THE TUNE OF RS. 5.56 LACS WAS FOUND AND THEREFOR E THE TOTAL ADDITION SHOULD HAVE BEEN RESTRICTED TO THE EXTENT OF UNDISC LOSED ASSETS. IT IS THE CONTENTION OF THE ID A.R. THAT THE AFORESAID CONTEN TIONS HAVE NOT BEEN CONSIDERED WHILE DECIDING THE ISSUE. BEFORE US REVE NUE COULD NOT CONTROVERT THE SUBMISSIONS MADE BY LD. A.R. IN THE LIGHT OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT THERE IS APPARENT MI STAKE IN THE ORDER FOR A.Y. 2005-06 AND THEREFORE IT SHALL BE IN THE INTEREST O F JUSTICE TO RECALL OUR ORDER FOR A.Y. 2005-06. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR A.Y. 2005-06 IN ITA NO. 2271/AHD/2009 IN DUE COURSE AND SERVE TH E NOTICE FOR HEARING ON BOTH THE PARTIES. M.A NOS. 128-132/AHD/2013 A.Y. 00-01,01-02,02-03,0 4-05,05-06 & 03-04 PAGE NO. BHARAT S. MODY VS. ACIT 6 11. IN THE RESULT, THE M.AS. FILED FOR AY 2001-02 T O 2004-05 ARE DISMISSED AND THE M.A. FILED FOR AY 2000-01 & 2005- 06 ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (G.C. GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD: DATED 22/08/2014 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,