Income Tax Appellate Tribunal - Hyderabad
Matrika Hospital, Hyderabad vs Assessee
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH 'B', HYDERABAD
BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER
AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER.
M.A. No. 172/Hyd/10
(in ITA No. 382 to 387/Hyd/2009) : Assessment year 2000-01
to 2005-06
M.A. No. 183/Hyd/10
(in ITA No. 383/Hyd/2009) : Assessment year 2001-02
M.A. No. 184/Hyd/10
(in ITA No. 384/Hyd/2009) : Assessment year 2002-03
M.A. No. 185/Hyd/10
(in ITA No. 385/Hyd/2009) : Assessment year 2003-04
M.A. No. 186/Hyd/10
(in ITA No. 386/Hyd/2009) : Assessment year 2004-05
M.A. No. 187/Hyd/104
(in ITA No. 387/Hyd/2009) : Assessment year 2005-06
M/s. Matrika Hospitals, V/s Dy. Commissioner of Income-
Hyderabad tax Circle 6(1), Hyderabad
(PAN: AAFFFM 6403 L)
(Applicant) (Respondent)
Applicant by : Shri C.P. Ramaswamy
Respondent by : Shri B. Nageswsar Rao
Date of Hearing 27 4.2012
Date of Pronouncement 18.5.2012
ORDER
Per Chandra Poojari, Accountant Member:
By these six applications under S.254(2) of the Income-tax Act, 19061, the applicant-assessee seeks rectification/recall of the order of this Tribunal dated 30.2010 in ITA Nos. 382 to 387/Hyd/2009 for the assessment year 2000-01 to 2005-06, on the ground that certain mistakes apparent from record have crept into the same. Initially, the assessee has preferred a single application, being M.A. No. 2 MA 172/Hyd/10 (in ITA No.382/Hyd/2009) and five others M/s. Matrika Hospital, Hyderabad 172/Hyd/2009, for all the assessment years under consideration, viz. 2000-01 to 2005-06, though subsequently, probably realizing its mistake, separate applications have come to be filed for the assessment years 2001-02 to 2005-06, being ITA Nos. 182 to 186/Hyd/2009. Since all these applications involve common averments/contentions and seek recall of a common order of the Tribunal dated 30.6.2010, these are being disposed of with this common order for the sake of convenience.
2. Reiterating the elaborate contentions urged in these applications, the learned counsel for the assessee submitted that eth Tribunal has proceeded on the presumption that this Tribunal has been consistently holding that CPWD rates have to be applied for properties in Hyderabad and PWD rates have to be applied for properties outside Hyderabad. Citing various decisions of the Tribunal, the learned counsel for the assessee disputed the correctness of the said presumption of the Tribunal. He submitted that the Tribunal has not held in any of its decisions that the CPWD rates should be applied when the construction takes place in Hyderabad and State PWD rates are not to be considered, and hence the observation of the Tribunal to that effect is not in accordance with the consistent orders passed by the Hyderabad Benches of the Tribunal. He invited our attention to para-5 of the order of the Tribunal, relating to the assessee's claim for deduction towards self supervision, wherein it has been observed more specifically as follows-
"In the repent case, as seen from the facts of the case, the assessee is a busy doctor working 16 hours a day for seven days in a week in her hospital and we cannot find any reason how she is able to devote any time in the construction of the building. More so, she is a doctor and having no technical competency to carry out supervision of construction building. Her visit to the construction plot once in a while in a week does not help any way in reduction of the cost of construction. For her personal satisfaction she might have visited the construction site few times in a week and that does not mean that she purchased herself all materials required for the construction of the building."
3 MA 172/Hyd/10 (in ITA No.382/Hyd/2009) and five others M/s. Matrika Hospital, Hyderabad Seriously disputing the above observations, it is submitted that the hospital construction was completed only in the financial year 2001-02 relevant to assessment year 2002-03, the same having started way back in the financial year 1995-96. The assessee was putting in long hours of work only after the completion of the construction of the hospital after March, 2002. Prior to this date, she was running a small clinic for only consultancy and was devoting substantial portion of her time for supervising construction during the years 1995-96 till March, 2002. She has made the purchases and also sent her people to make purchases whenever possible to economise on the cost. This factual position has not been considered while denying deduction for self supervision. Assessee has specifically submitted these facts in the course of arguments during appeal hearing. The construction took several years only because the assessee was supervising the same at her free times. It is submitted that the pleadings of the assessee in this behalf during the appeal hearing escaped the notice of the Tribunal while passing its order dated 30.6.2010.
3. Further referring to para 8 of the order of the Tribunal dated 30.6.2010, wherein various contentions of the assessee numbering to 22 have been noted, and against Sl. No. 13, it is noted as follows-
"13. Further, the assessee's counsel made an argument that the suppressed case records are not at 60 Nos. instead of there are only 41 case records which are not recorded as receipts in the regular accounts."
It is submitted in this behalf that the above observation of the Tribunal at para 13 is not correct and this was never the submission of the assessee. The submission of the assessee, according to the learned counsel is that all the receipts tallied and in 41 cases it could be traced through the case sheets directly and for the remaining 19 cases, receipts included though 4 MA 172/Hyd/10 (in ITA No.382/Hyd/2009) and five others M/s. Matrika Hospital, Hyderabad the corresponding bills could not be found. It is stated by the learned counsel for the assessee that the case of the assessee all along was that there are no suppressed receipts as alleged, and the Tribunal has incorrectly noted the contention of the assessee and hence, needs rectification.
4. The learned counsel for the assessee taking us through the summary of submissions furnished in the context of appeal hearing, more specifically page 14 thereof, submitted that the assessee brought to the notice of the various distinguishing features in support of its contention that the decision of the Hon'ble A.P. High Court in the case of Rajnik & Co.(251 ITR 561) is not applicable to the facts of the present case. However, the Tribunal has not considered the same and decided the same in the light of the said decision of the Hon'ble A.P. High Court.
5. The learned counsel for the assessee submitted that in the present case all the records are verified for all the years and only those receipts which are not recorded are included in determining the income of the respective years, and that being so, the direction that such suppression has to be adopted as a basis to determine the income o the other assessment years would not arise for consideration as all the records for all the years have been verified. The direction of the Tribunal in this behalf are inconsistent and have to be amended suitably.
6. The Learned Departmental Representative opposing the above submissions of the assessee, submitted that there is no mistake apparent from record in the order of the Tribunal, and the present applications of the assessee are, therefore, liable to be rejected.
7. We have considered the rival submissions and perused the elaborate contentions/averments made in the present applications, in the 5 MA 172/Hyd/10 (in ITA No.382/Hyd/2009) and five others M/s. Matrika Hospital, Hyderabad light of the order of this Tribunal dated 30.6.2010, giving rise to these rectification proceedings. On a close examination of the matter, we find that the present applications of the assessee are devoid of merit, as the same fail bring out any specific mistake apparent from record in the order of the Tribunal. All that the assessee seeks through the elaborate submissions made in the present applications, is a mere review of the findings given in our order, by reappraisal of the evidence and reconsideration of the various contentions urged by the assessee during the course of hearing on the appeals. The observations of the Tribunal with regard to applicability of CPWD/State PWD rates to the constructions taken up within the metropolitan/outside the metropolitan areas are of general nature and they do not have much bearing on its ultimate conclusion that the construction in the present case, being within the city of Hyderabad, it is the CPWD rates which are more appropriate. In any event, the Tribunal conceded that certain adjustments have to be made to the cost of construction determined by the DVO, and accordingly addressed itself to the adjustments that are warranted in the present case. The Tribunal confirmed the findings of the CIT(A) that the valuation officer rejected the assessee's claim regarding application of PWD rate and also was of the opinion that the various judgements cited by the assessee cannot be applied. It was clarified that while applying the CPWD plinth area rate, cost of items not specified in the specification applicable to the standard plinth area rate adopted but provided in the structure had also been worked out and added separately based on the prevailing market rate. Similarly, the valuation officer had also given deduction for not providing items specified in the specification applicable to the standard plinth area rates adopted. It is also on record that suitable additions and deductions have been made for deviating from the standard specifications applicable to the plinth area rate adopted based on the prevailing local market rate/relevant standard schedule of rates for building works, published by the PWD, R&B, Hyderabad, Govt. of A.P. As 6 MA 172/Hyd/10 (in ITA No.382/Hyd/2009) and five others M/s. Matrika Hospital, Hyderabad against the observations and comments of the valuation officer the assessee did not come out with any explanation before the lower authorities. The assessee is not able to rebut reason for deviation from local PWD rate in her own case by furnishing any evidence or explanation. Under these circumstances the CIT(A) not considered the order of the Tribunal in the case of ACIT vs. Vinodkumar Agarwal (257 ITR 65 (AT) (Hyd) and also the order of the Tribunal, Jaipur Bench in the case of Smt. Rekha Devi vs. ACIT, 49 TTJ 530 (Jaipur). The position is similar even before the Tribunal. Even the other case-law relied on by assessee's counsel before us do not make any difference. Each case has to be decided on its own set of facts. Being so, the Tribunal confirmed the order of the CIT(A) on denying the assessee's claim for deduction towards self-supervision as well as PWD rate. In the present applications, except for disputing the conclusions of the Tribunal with regard to the deduction towards self supervision and application of CPWD rate by reiterating the contentions urged during the appeal hearings, which have already been considered, the assessee has not brought forward any mistake apparent from record in the order of the Tribunal.
8. Even with regard to addition on account of suppressed receipts, the Tribunal has examined the contentions of the assessee before it, in the light of the material on record and the impugned orders of the lower authorities and passed a speaking order. We find that the Tribunal has taken note of, in para 11 of its order dated 30.6.2010, the assessee's contention with regard to inapplicability of the decision of the jurisdictional High Court in the case of Rajnik & Co. (supra). The CIT(A) has discussed in depth the points of distinction argued by the assessee before him, with regard to that case, in his impugned order dated 13.2.2009, and ultimately found no merit in the same. The Tribunal, concurring with the view taken by the CIT(A) in that behalf, did not elaborate on that aspect over again, and has proceeded to consider the 7 MA 172/Hyd/10 (in ITA No.382/Hyd/2009) and five others M/s. Matrika Hospital, Hyderabad matter in the light of that decision and also the decision of the Hon'ble Supreme Court in the case of Commissioner of Sales Tax V/s. H.M. Esufali HM Abdulali (90 ITR 271), and ultimately directed the assessing officer to consider only those case records which are not recorded in the books of account for the purposes of determining the income of the assessee and thereafter to use that suppression as a basis to determine the income of the other assessment years as held by the jurisdictional High Court tint eh case of Raj V/s. ACIT (251 ITR 561). As far as the alleged suppression for the assessment year 2000-01 is concerned, since the Tribunal has merely restored the matter to the file of the assessing officer, for re- examination, the assessee can have no grievance against that direction of the Tribunal. As far as application of that suppression for determining the incomes of the other years, the direction of the Tribunal is in accordance with the ratio of the Hon'ble jurisdictional High Court and the Apex Court in the case of H.M. Esufali HM Abdulali (supra), after considering the argument of the assessee with regard to inapplicability of the decision of the High Court in the case of Rajnik and Co. (supra) to the facts of the present case. In that view of the matter, we find no mistake apparent from record in the order of the Tribunal. We accordingly reject the same.
9. Even if there is any mistake in the finding of the Tribunal as alleged by the assessee in the present application, it is not an obvious or patent mistake apparent from record, it is so projected by the assessee, only by disputing the findings of the Tribunal, and seeking rectification of the same by reviewing our order by reappraising the evidences and contentions of the parties before us, Since such a review is not permissible in these proceedings under S.254(2) of the Act, these applications of the assessee are devoid of merit, and the same are accordingly rejected.
8 MA 172/Hyd/10 (in ITA No.382/Hyd/2009) and five others M/s. Matrika Hospital, Hyderabad
10. In the result, all the six applications of the assessee are rejected.
Order pronounced in the court on 18th May, 2012
Sd/- Sd/-
(Saktijit Dey) (Chandra Poojari)
Judicial Member. Accountant Member.
Hyderabad, dated the 18th May, 2012
Copy forwarded to:
1. M/s. Matrika Hospitals, Dr. No. 6-3-1100/2, Somajiguda, Hyderabad
2. Dy. Commissioner of Income-tax 6(1), Hyderabad
3. Commissioner of Income-tax(Appeals)-IV Hyderabad
4. Commissioner of Income-tax Central III Hyderabad
5. The Departmental Representative, ITAT Hyderabad B.V.S.