Income Tax Appellate Tribunal - Kolkata
Pramathes Das Mahapatra, Kolkata vs Assessee on 8 July, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH: KOLKATA
[Before Shri N. V. Vasudevan, JM & Shri M. Balaganesh, AM]
I.T.A No.1793/Kol/2013
Assessment Year: 2008-09
Pramathes Das Mahapatra Vs. Deputy Commissioner of Income-tax,
(PAN: ADQPD6037R) Circle-55, Kolkata.
(Appellant) (Respondent)
Date of hearing: 06.06.2016
Date of pronouncement: 08.07.2016
For the Appellant: S/Shri S. L. Kochar & Anil Kochar, ARs
For the Respondent: Shri Tanuj Kr. Neogi, JCIT, Sr. DR
ORDER
Per Shri M. Balaganesh, AM:
This appeal by assessee is arising out of order of CIT(A)-XXXVI, Kolkata vide Appeal No. 315/CIT(A)-XXXVI/Kol/Cir-55/10-11/42 dated 26.03.2013. Assessment was framed by DCIT, Circle-55, Kolkata u/s. 143(3) of the Income tax Act, 1961 (hereinafter referred to as the "Act") for AY 2008-09 vide his order dated 31.12.2010.
2. The only issue to be decided in this appeal is as to whether the Ld. CIT(A) is justified in upholding the addition made in the sum of Rs.11,25,500/- towards professional income of the assessee in the facts and circumstances of the case.
3. The brief facts of this issue are that the assessee is in the Medical profession and carries on his professional activities as a surgeon since past several years. The assessee runs a Nursing Home in the name & style of Spectrum Clinic and Endoscopy Research Institute at 6A & 6F, Neelamber, 28B, Shakespeare Sarani, Kolkata - 700017. Return of income was submitted by the assessee on 29.09.2008 declaring total income of Rs.70,87,349/-. The assessee maintains books of accounts and has all relevant records along with Audited statements of accounts. On requisition made by the A.O., the assessee instructed his accountant to prepare detailed statements as required by the A.O. and the same were submitted to the A.O. who upon receipt of the same issued notices u/s 133 (6) of the Act to Bellevue Clinics, Woodlands etc. from where the assessee had received professional fees. Compliance was received by the A.O. from Belle Vue Clinic and Woodlands Medical Centre Ltd. who had given information 2 ITA No.1793/K/2013 Pramathes Das Mahapatra, AY 2008-09 about performing of surgical operations at their clinics. As per Belle Vue Clinic there was performance of surgical operations in 49 cases in the whole year and as per Woodlands Medical Centre there were 36 such cases of operation. The A.O. noted that the assessee had shown 23 cases and 23 cases respectively in the above mentioned two Nursing Homes as per details furnished. The discrepancy which has been noted by the A.O. was intimated to the assessee for necessary explanation with supporting documents. The assessee submitted explanation giving information about No. of patients operated and corresponding receipt of fees. The A/R also submitted one written brief wherein it was stated that receipts from Park Clinic was Rs.90,000/- and not Rs.30,000/- as reported earlier. Further, it was pointed out that there have been some inadvertent errors by the Accountant who had prepared the details of the professional fees and that a fresh list was prepared which was submitted stating all relevant particulars. Receipt from Tata Motors amounting to Rs.67,875/- was included in the Receipts of Spectrum Clinic and Endoscopy Research Institute. Payments were received by cheques and deposited in the Bank account. The A.O. has observed that the assessee's Accountant Sri Samik Dey who wrote the accounts during the relevant year, became terminally ill and had been sent to Bangalore for treatment. The new incumbent Sri Indrajit Mitra was not conversant/familiar with the set of accounts written by the ex-accountant and prepared the details on the balancing system and without taking care to conclude the workshop free cases as well as free and complimentary cases conducted at Spectrum Clinic & Endoscopy which is assessee's own Unit. The assessee submitted to the A.O. a fresh list of professional fees in the format submitted earlier. The A.O. examined the matter with reference to the submissions made by the assessee relating to the earlier break up and the fresh one and the details submitted. The case of the A.O. is that there were total receipts of Rs.l,19,93,568/- from 438 patients which was at an average of Rs.27,382/- in his own clinic. However, in the revised statement No. of patients operated is shown 457 and amount received is shown as Rs.77,80,168/- at an average of Rs.17,024/-. The assessee has shown 23 operations conducted under Belle Vue Clinic for which the assessee received Rs.9,31,000/- but in the later statement the assessee has shown 34 operative cases with receipt of Rs.1l ,83,000/- and 15 workshop free cases totaling to 49 cases matching with the report sent by Belle Vue Clinic authority. The A.O. observed that 3 ITA No.1793/K/2013 Pramathes Das Mahapatra, AY 2008-09 the assessee is silent as, to how 11 operative cases of Belle Vue clinic has escaped. It is also observed by the A.O. that the assessee is silent as to how Mrs. Rita Ghosh can claim to have paid to the assessee Rs.8,000/- on 5th June, 2007 as the cost of medicine + consultation in the free workshop case of Belle Vue Clinic. The A.O. also observed that the assessee has acknowledged the number of operation case was 36 in lieu of 23 in the Woodlands Medical Centre. Accordingly, the receipt also was revised/enhanced from Rs.9,07,000/- to Rs. 12,83,000/-. So the A.O. says that how 73 cases of operation in Woodlands Medical Centre could escape. The A.O. who examined cash book has observed that no cash receipt is found to have been received from operative cases of Saraswati Devi Sikaria & Sumali Das. Further, the A.O. observed that from the reply received from Sohini Pal it was seen that operation charge was around Rs.50,000/- to Rs.52,000/- and was paid by cash and proper receipt was issued to her but it is seen from the revised statement that the amount is shown at Rs.42,000/-. The A.O., therefore, concluded that the additional amount shown in the revised statement under Belle Vue, Woodland, Park Clinic, Bhagirathi Neotia totaling to Rs.11,25,500/- is to be treated as income that have escaped assessment under the above heads which is adjusted later against income from Spectrum Clinic but the same is not allowable and hence Rs.11,25,500/- is treated as escaped income by the A.O.
4. The assessee before the Ld. CIT(A) explained by way of a detailed written submission the facts of the case. The Ld. CIT(A) observed that the Ld. AO in his order had noted that the assessee had failed to reconcile the discrepancies pointed out by him. He further observed that in the circumstances, the fresh recasted break up of professional fees cannot be relied on for the reasons mentioned by the Ld. AO. Finally, he observed that the books of account maintained by the assessee cannot be said to be correctly drawn and accordingly, upheld the addition made in the sum of Rs.11,25,500/- by the Ld. AO. Aggrieved, assessee is in appeal before us.
5. The Ld. AR argued that the assessee had filed a detailed written submission before the Ld. CIT(A) vide para 1 to 20 in 14 pages and whereas the ld. CIT(A) had only considered upto page 14 of the said submissions as could be evident from the Ld. CIT(A)'s order itself. He argued that had the Ld. CIT(A) considered the remaining paragraphs, he could have taken a reasoned decision in the matter. Accordingly, he 4 ITA No.1793/K/2013 Pramathes Das Mahapatra, AY 2008-09 prayed for setting aside this issue to the file of the AO to decide the entire issue by way of the written submissions filed by him before the Ld. CIT(A) for which Ld. DR also fairly agreed to the same.
6. We have heard rival submissions and gone through facts and circumstances of the case. We find that the Ld. CIT(A) had only considered the part of the written submissions of the AR filed before him, which is also reproduced in the appellate order. Copy of the written submission filed before the Ld. CIT(A) was also placed on record. We find that the Ld. AR had filed the details of receipts of the assessee from each of the clinic and hospitals which requires re-verification by the Ld. AO. In the facts and circumstances of the case, we deem it fit and proper to set aside this issue to the file of the Ld. AO for de novo adjudication, in the light of the written submission filed by the assessee before the Ld. CIT(A). We also appreciate the fairness exhibited by the Ld. DR in this regard agreeing for the setting aside of this issue in the interest of justice and fair play. The assessee is at liberty to adduce fresh evidence in this regard before the Ld. AO for better appreciation of the facts and accordingly, the grounds raised by the assessee are allowed for statistical purposes.
7. In the result, the appeal of the assessee is allowed for statistical purposes.
Order is pronounced in the open court on 08.07.2016
Sd/- Sd/-
(N. V. Vasudevan) (M. Balaganesh)
Judicial Member Accountant Member
Dated : 8th July, 2016
Jd.(Sr.P.S.)
Copy of the order forwarded to:
1. APPELLANT - Shri Pramathes Das Mahapatra, C/o S. L. Kochar, Advocate, 86, Canning Street, Kol-1.
2 Respondent -DCIT, Circle-55, Kolkata.
3. The CIT(A), Kolkata
4. CIT , Kolkata
5. DR, Kolkata Benches, Kolkata /True Copy, By order, Asstt. Registrar.