Suresh Gajanan Thatte, V. ITO,

MA 67/PUN/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5032 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-09-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 29-12-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Assessee Lawyers: G Y LIMAYE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER M.A. NO. 67/PN/2010 (ARISING OUT OF ITA NO.1005/PN/04 ) (ASSTT. YEAR : 2001-02) SURESH GAJANAN THATTE APPLICANT 2149, SADASHIV PETH, VIJAYNAGAR COLONY, OPP. HOSPITAL KARVE, PUNE 30. PAN : NOT AVAILABLE VS. INCOME TAX OFFICER, WARD 5(1), PUNE RESPONDE NT APPLICANT BY : SHRI. G.Y. LIMAYE RESPONDENT BY : SHRI ABHAY DAMLE ORDER PER I.C. SUDHIR, JM RE-ITERATING THE CONTENTS OF THE APPLICATION, THE LD. A.R TRIED TO POINT OUT MISTAKE IN PARA NO.9 AT PAGE NO. 5 OF THE ORDER DT. 29 TH MARCH 2005 OF THE TRIBUNAL, WHICH AS PER HIM, IS MISTAKE APPARENT FROM RECORD I N THE ORDER WHICH NEEDS RECTIFICATION U/S 254(2) OF THE ACT. LD. A.R. SU BMITTED THAT THE ISSUE RAISED BEFORE THE TRIBUNAL IN GROUND NO. 7 WAS AS TO WHETHER THE INTEREST PAID ON LOAN TAKEN FOR THE PREMISES OF THE RESIDENTIAL UNIT LOCATED JUST A BOVE THE HOSPITAL PREMISES CONSTITUTED AN ALLOWABLE PROFESSIONAL EXPENDITURE. THE TRIBUNAL WHILE DECIDING THE ISSUE AGAINST THE ASSESSEE BY UPHOLDING THE FIRST A PPELLATE ORDER HAS FAILED TO APPRECIATE THE RELEVANT MANDATORY STATUTORY PROVISI ONS AND THE RELEVANT LAW FILED BY THE ASSESSEE IN ITS PAPER BOOK AT PAGE NOS. 16, 17 AND 19. AS PER THESE PROVISIONS AND A LETTER DT. 7.3.2005 WRITTEN BY MEDICAL OFFIC ER OF HEALTH, PUNE MUNICIPAL CORPORATION TO THE ASSESSEE, PLACED ON RECORD, IT I S MANDATORY FOR A GYNAC HOSPITAL TO HAVE TWENTY FOUR HOURS RESIDENT DOCTOR AND IN TH E ABSENCE OF SUCH RESIDENT DOCTOR, THE HOSPITAL CANNOT BE REGISTERED. THE TR IBUNAL IN PARA NO. 9 OF THE ORDER HAS, HOWEVER, OBSERVED THAT ASSESSEE COULD NOT PROD UCE ANY RELEVANT RULES AND REGULATIONS ON THIS ISSUE TO JUSTIFY HIS CLAIM THAT HE SHOULD NECESSARILY POSSESS M.A. NO. 67/PN/2010 (ARISING OUT OF ITA NO. 1005/PN/2004) SURESH GAJANAN THATTE (A.Y. 2001-02 ) . 2 RESIDENTIAL UNIT IN THE SAME PREMISES WHERE THE HOS PITAL WAS FUNCTIONING. THUS, THERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER IN PARA NO.9 AT PAGE NO. 5 WHICH NEEDS RECTIFICATION WITHIN THE MEANING OF PROVISIO NS LAID DOWN U/S. 254(2) OF THE ACT. 2. THE LD. D.R., ON THE OTHER HAND, OPPOSED THE APP LICATION WITH THE SUBMISSION THAT THE TRIBUNAL HAS CONSIDERED ALL THE ARGUMENTS ADVANCED BY THE PARTIES WHILE DECIDING THE ISSUE RAISED IN GROUND N O. 7 OF THE APPEAL, HENCE THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER I N PARA NO. 9 AT PAGE NO. 5. UNDER THESE CIRCUMSTANCES, IF THE APPLICATION UNDER CONSIDERATION IS ALLOWED, IT WOULD BE AMOUNTING TO REVIEW OF ITS ORDER BY THE TR IBUNAL, WHICH IS NOT PERMITTED UNDER THE PROVISIONS OF SEC. 254(2) OF THE ACT. 3. AFTER HAVING GONE THROUGH THE ABOVE REFERRED DOC UMENTS AND THE ORDER OF THE TRIBUNAL IN QUESTION, WE DO NOT FIND ANY MISTAK E APPARENT FROM THE RECORD IN THE SAID ORDER OF THE TRIBUNAL TO RECTIFY THE SAME UNDER THE PROVISIONS LAID DOWN U/S. 254(2) OF THE ACT. THE CONTENTION OF THE LD. A.R. IN SUPPORT OF THE APPLICATION, AS DISCUSSED ABOVE REMAINED THAT THE TRIBUNAL WHILE DE CIDING THE ISSUE RAISED IN GROUND NO.7 HAS FAILED TO APPRECIATE THE RELEVANT M ANDATORY STATUTORY PROVISIONS AND THE RELEVANT LAW FILED BY THE ASSESSEE IN ITS P APER BOOK AT PAGE NOS. 16, 17 AND 19 AS WELL AS LETTER DT. 7.3.2005 WRITTEN BY THE ME DICAL OFFICER OF HEALTH, PUNE MUNICIPAL CORPORATION, TO THE ASSESSEE IN SUPPORT. HAVING GONE THROUGH THESE DOCUMENTS, WE DO NOT FIND ANY STRENGTH TO SUPPORT T HE ARGUMENT OF THE LD. A.R. THAT ACCORDING TO THE RULES FRAMED BY THE PMC, PUNE , UNDER THE BOMBAY NURSING HOME REGISTRATION ACT 1949, IT IS MANDATORY FOR A G YNAC HOSPITAL TO HAVE RESIDENTIAL UNIT OF A DOCTOR THEREIN. THE ONLY REQUIREMENT AS PER THESE ACT AND PROVISIONS IS THAT THERE MUST BE TWENTY FOUR HOURS PRESENCE OF A RESIDENT DOCTOR TO FACILITATE THE REGISTRATION OF SUCH HOSPITAL. IT DOES NOT SAY THA T FOR GETTING A GYNAC HOSPITAL M.A. NO. 67/PN/2010 (ARISING OUT OF ITA NO. 1005/PN/2004) SURESH GAJANAN THATTE (A.Y. 2001-02 ) . 3 REGISTERED, THERE MUST BE A RESIDENTIAL UNIT WITH A HOSPITAL. THE REQUIREMENT OF TWENTY FOUR HOUSE PRESENCE OF RESIDENT DOCTOR CAN B E ACHIEVED WITHOUT HAVING A RESIDENTIAL UNIT IN THE HOSPITAL ITSELF. RESIDENTI AL UNIT IS PROVIDED ONLY TO FACILITATE COMFORT OF SUCH RESIDENT DOCTOR. HAVING A RESIDEN TIAL UNIT IN SUCH A HOSPITAL, DOES NOT GIVE A POSITIVE INFERENCE THAT A DOCTOR RESIDIN G THEREIN IS AVAILABLE FOR TWENTY FOUR HOURS TO THE PATIENTS IN THE HOSPITAL, UNLESS THE SAID DOCTOR RESIDING THEREIN IS AVAILABLE AND ATTENDING THE PATIENTS OF THE HOSPITA L FOR TWENTY FOUR HOURS. NO DOCUMENTS, COPIES WHEREOF HAVE BEEN MADE AVAILABLE AT PAGE NUMBERS 16,17 AND 19 OF PAPER BOOK I.E. MEDICAL COUNCIL OF INDIA TAL KING ABOUT MEDICAL ETHICS OUT OF PHYSICIANS TO THEIR PATIENTS ETC., SAY SO. THE SOL E REQUIREMENT OF SUCH HOSPITAL IS TO PROVIDE TWENTY FOUR HOUR AVAILABILITY OF A RESIDENT DOCTOR. IT DOES NOT SAY THAT THERE MUST BE RESIDENTIAL UNIT CONSTRUCTED FOR SUCH RESID ENT DOCTORS IN THE PREMISES OF THE HOSPITAL, AS ITS INTEGRAL PART TO FACILITATE REGIST RATION OF SUCH HOSPITAL WITH THE PUNE MUNICIPAL CORPORATION. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND ANY MISTAKE APPARENT FROM RECORD IN PARA NO. 9 OF THE ORDER DT. 29 TH MARCH 2005 OF THE TRIBUNAL. THE APPLICATION IS ACCORDINGLY DISMISSED AS NOT MAI NTAINABLE WITHIN THE MEANING OF THE PROVISIONS OF SECTION 254(2) OF THE ACT. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED ON 8TH SEPTEMBER, 2010 . SD/- SD/- (D. KARUNAKARA RAO) (I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED THE 8 TH SEPTEMBER , 2010 US COPY OF THE ORDER IS FORWARDED TO : 1. APPLICANT 2. RESPONDENT 3. CIT(A)- II, PUNE 4. CIT III, PUNE 5. D.R. ITAT A PUNE BENCH 6. GUARD FILE M.A. NO. 67/PN/2010 (ARISING OUT OF ITA NO. 1005/PN/2004) SURESH GAJANAN THATTE (A.Y. 2001-02 ) . 4 BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE