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Income Tax Appellate Tribunal - Mumbai

Fauzia Hospital ( Prop Dr Mohd. Usman ... vs Acit 11(3), Mumbai on 18 November, 2016

                IN THE INCOME TAX APPELLATE TRIBUNAL,
                       MUMBAI BENCH "F", MUMBAI

          BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND
               SHRI SANJAY GARG, JUDICIAL MEMBER

                                  ITA No.826/M/2013
                               Assessment Year: 2008-09

                                  ITA No.827/M/2013
                               Assessment Year: 2009-10

        M/s. Fauzia Hospital (Prop. Dr.     ACIT 11(3),
        Mohd. Usman Shaikh),                R.No.445,
        209, Aero View CHS,             Vs. Aayakar Bhavan,
        LBS Marg, Kurla (West),             M.K. Road,
        Mumbai - 400 070                    Mumbai - 400020
        PAN: AKKPS1115Q
             (Appellant)                      (Respondent)


                                  ITA No.589/M/2013
                               Assessment Year: 2008-09

                                  ITA No.590/M/2013
                               Assessment Year: 2009-10

        ACIT 11(3),                           M/s. Fauzia Hospital (Prop. Dr.
        R.No.446, 4th Floor,                  Mohd. Usman Shaikh),
        Aayakar Bhavan,                   Vs. 209, Aero View CHS,
        M.K. Road,                            LBS Marg, Kurla (West),
        Mumbai - 400020                       Mumbai - 400 070
                                              PAN: AKKPS1115Q
             (Appellant)                        (Respondent)

      Present for:
      Assessee by                  : Shri K. Gopal, A.R.
      Revenue by                   : Shri E. Shreedhar, D.R.

      Date of Hearing              : 30.06.2016
      Date of Pronouncement        : 18.11.2016

                                     ORDER


Per Sanjay Garg, Judicial Member:

The present is a bunch of four appeals. Two appeals have been preferred by the assessee in relation to the additions made/confirmed for A.Y. 2008-09 and A.Y. 2009-10. The other two are corresponding cross appeals by 2 ITA No.826/M/2013, ITA No.827/M/2013 ITA No.589/M/2013 & ITA No.590/M/2013 M/s. Fauzia Hospital (Prop. Dr. Mohd. Usman Shaikh) the Revenue for the above stated assessment years. First we take up the assessee's appeal for A.Y. 2008-09.

2. The assessee in this appeal has taken as many as of six grounds of appeal. At the outset, the Ld. A.R. of the assessee has stated that ground No.3, 5 & 6 are not pressed. Ground Nos.3, 5 & 6 are therefore dismissed accordingly.

3. Now we have remained with ground Nos.1, 2 & 4. Vide ground Nos.1 & 2, the assessee has contested the action of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] in confirming the disallowance of Rs.11950669/- under section 40(a)(ia) on account of non deduction of tax at source on the payments made by the assessee hospital to the doctors and pathology laboratory in relation to inpatients.

4. The brief facts of the case are that the assessee hospital provides consultation services of specialist doctors as well as pathology laboratory to its in and out patients. During the year under consideration, assessee collected fees amounting to Rs.1,52,65,276/- on behalf of doctors and Rs.38,85,393/- for pathology lab totaling Rs.1,91,50,669/-. The collected payments were directly handed over to the respective doctors and pathology laboratories without debiting the same in the profit and loss account. The assessee's business premises was subjected to survey under section 133A of the Act on 29.09.09. During the survey the assessee made disclosure of income of Rs.2,57,36,044/-. During the assessment proceedings, the Assessing Officer (hereinafter referred to as the AO) asked the assessee as to why the TDS was not deducted in respect of payments made to doctors and pathology laboratory. The assessee explained that the assessee had not made any payment for professional fees to the doctors or to the pathology laboratory; the assessee had just acted as an agent for collecting the fees on behalf of doctors and pathology laboratory 3 ITA No.826/M/2013, ITA No.827/M/2013 ITA No.589/M/2013 & ITA No.590/M/2013 M/s. Fauzia Hospital (Prop. Dr. Mohd. Usman Shaikh) which after collection directly remitted to them. That the said amount was not debited to the profit and loss account. That the assessee had set up its premises for providing the facilities to the patients such as consulting rooms, operation theaters, beds and paramedical staff for which service charges were being recovered from the patients in the form of registration fees, bed charges and other hospital charges etc. The facilities for medical consultation, surgery and other professional services were provided by the doctors to the patients directly; only the premises of the hospital was used for the said purpose. Thus, the collection made from patients on behalf of doctors or pathology were not recorded in the books of account of the assessee. It was further pleaded that since no expenditure was claimed in P & L account in respect of the payments made to the doctors and pathology laboratory, hence there was no question of disallowance of expenditure under section 40(a)(ia) in respect of the above stated payments. The AO however observed that there was no written agreement available of the hospital with the said doctors and pathology laboratory that the assessee had collected fees from the patients on its own behalf and further the payment was remitted to the concerned doctors and pathology laboratory without deducting TDS. He, therefore, made the disallowance of the entire payment invoking the provisions of section 40(a)(ia) of the Act. Being aggrieved by the above disallowance the assessee preferred appeal before the Ld. CIT(A).

5. The Ld. CIT(A), after considering the relevant submissions, held that so far as the out patients were concerned (OPD), the payments were made by the patients for the consultation obtained from the doctors and that the hospital had not provided consultation services to the patients. He therefore held that the receipts collected from out patients were payments by the patients to the doctors only. The hospital had acted just as an agent to collect the fees on behalf of doctors and paid the same to the doctors. The doctors had not done 4 ITA No.826/M/2013, ITA No.827/M/2013 ITA No.589/M/2013 & ITA No.590/M/2013 M/s. Fauzia Hospital (Prop. Dr. Mohd. Usman Shaikh) any consultation services to the hospital. He, therefore, held that the hospital was not liable to deduct any TDS on that account.

6. However, so far as inpatients were concerned, the Ld. CIT(A) observed that the said inpatients get admitted into the hospital and the hospital had agreed to provide all the medical services to the inpatients. In case any specialist doctor's services were required, then it was the responsibility of the hospital to arrange for the services of the specialist. In this process the hospital had availed the professional services of the doctors and had been paying the fees for such professional services to the doctors. He observed that such payment made by the hospital to the doctors was the fees for professional services done by the doctors to the hospital. He accordingly upheld the disallowance made by the AO under section 40(a)(ia) of the Act for non deduction of TDS in relation to the payment made by the hospital to the doctors and pathology laboratory in respect of inpatients. Being aggrieved by the above order of the Ld. CIT(A), the assessee has come in appeal before us.

7. The Revenue has also come in appeal agitating the relief granted by the Ld. CIT(A) on payments remitted to doctors in respect of out patients. The Revenue has also agitated the action of the Ld. CIT(A) in relying upon the decision of the special Bench of the Tribunal in the case of "Merling Shipping and Transports vs. ACIT" 136 ITD (Visakhapatnam) (23) with regard to the applicability of section 40(a)(ia) wherein the Tribunal has held that the provisions of section 40(a)(ia) are not applicable to payments actually made during the accounting period and that the provisions of section 40(a)(ia) would be applicable only to payments pending as on 31st March of the accounting year to which no TDS was done.

8. We have heard the rival contentions and have also gone through the records. The issue involved before us is as to whether the services given by the doctors to the patients were on principle to principle basis i.e. the services were 5 ITA No.826/M/2013, ITA No.827/M/2013 ITA No.589/M/2013 & ITA No.590/M/2013 M/s. Fauzia Hospital (Prop. Dr. Mohd. Usman Shaikh) given by the doctors directly to the patients or the services of doctors were obtained by the hospital. If the services were given by the doctors directly to the patients and the same cannot be said to be obtained by the hospital from the doctors and further provided to the patients, then in that event, the amount collected by the hospital cannot be termed as the income of the hospital, nor the said remittance of payment by the hospital to the doctors can be said to be an expenditure at the hands of hospital. However, in case of vice-a-versa i.e. if the services were said to be obtained by the hospital from the doctors and pathology laboratory and further provided to the patients by the hospital, in that event any payment collected by the hospital from the patients will be the income of the hospital and any payment made by the hospital to the doctors or the lab will be the expenditure at the hands of the hospital at which the hospital will be liable to deduct TDS. Admittedly, neither the AO nor the Ld. CIT(A) have added the amount collected by the hospital from the patients on behalf of the doctors as income of the hospital. What has been disallowed is the expenditure; that too on account of non deduction of TDS as per the provisions of section 194J of the Act. The disallowance has been made accordingly under section 40(a)(ia) of the Act. Admittedly, the assessee hospital has not debited the said expenditure to its P & L account. Once the amount paid has not been claimed as expenditure, there cannot be any question of disallowance of the same. When an expenditure has not been claimed at all, how can the same be disallowed. Without going into further aspects of the matter, the disallowance in this case under section 40(a)(ia) of the Act, is not attracted at all. The same is accordingly ordered to be deleted.

9. Vide ground No.4, the assessee has agitated the addition of Bisi payment of Rs.8,00,000/- under section 69C of the Act.

The brief facts relating to the issue are that the assessee had invested a sum of Rs.8 lakh in Bisi payment as an investment. The assessee had not claimed the Bisi payment as expenses. The assessee has claimed that the said 6 ITA No.826/M/2013, ITA No.827/M/2013 ITA No.589/M/2013 & ITA No.590/M/2013 M/s. Fauzia Hospital (Prop. Dr. Mohd. Usman Shaikh) investment was made out of its income which was declared during the survey action. It has been claimed that once the income was declared and tax paid separately, then the investment made out of the said declared income cannot be taxed twice.

10. The issue has been discussed by the Ld. CIT(A) at page 37 in para 3.3 of his order. The Ld. CIT(A) has rejected the contention of the assessee observing as under:

"3.3. I have gone through the issue. It is an accepted fact that the Bisi payments were made from the unaccounted money. The appellant submits that since the appellant has already admitted Rs.27,03,620/- as additional income, the Bisi payments should be considered as payments made out of this Rs.27,03,620/-. I could not agree with the appellant. I have gone through the revised P & L account and balance sheet filed by the appellant while filing the return of income consequent to the survey conducted u/s 133A of the Income-tax Act. The Bisi payments are not reflected in the capital accounts as separate drawings and it is not shown as an i n v e s t m e n t i n t h e b a l a n c e s h e e t . S o w h a t e v e r t h e a m o u n t declared by the appellant in the revised return is already m e reflecting as assets disclosed (which doesn't contain Bisi payments) in the revised balance sheet. In view of this, it c a n n o t b e considered that the additional income offered of Rs.27,03,620/- is used for Bisi payments. The appellant's contentions are not accepted. Addition is upheld."

11. We have heard the rival contentions and have also gone through the records. In our view, this issue requires re-examination at the hands of the AO. If the assessee will be able to prove that the Bisi payments were out of the income declared during survey action then the same cannot be taxed twice. We therefore restore this issue to the file of the AO with a direction to decide the same afresh. Needless to say that the AO will give proper opportunity to the assessee to explain his case and then the AO will pass a speaking order in accordance with law on this issue. This appeal of the assessee is therefore treated as partly allowed for statistical purposes.

12. Now coming to the Revenue's appeal i.e. ITA No.589/M/2013 for Assessment Year: 2008-09.

M/s. Fauzia Hospital (Prop. Dr. Mohd. Usman Shaikh) ITA No.589/M/2013 for A.Y. 2008-09 (Revenue's Appeal)

13. In view of our findings given above, since we have held that no disallowance under section 40(a)(ia) is attracted in respect of payments made to the doctors and pathology laboratory as the same has never been claimed as an expenditure, hence there is no merit in the appeal of the Revenue and the same is accordingly dismissed.

14. The assessee has taken as many as 7 grounds of appeal. The Ld. A.R. has stated at bar that except ground Nos.1, 2 & 4 the other grounds are not pressed. The ground Nos.3, 5, 6 & 7 are therefore dismissed as not processed.

15. So far as ground Nos.1 & 2 are concerned, the issue involved therein is identical to that involved in ground No.1 & 2 of assessee's appeal for A.Y. 2008-09. In view of our observations made above, while deciding the assessee's appeal for A.Y. 2008-09, the ground Nos.1 & 2 of this appeal are allowed accordingly.

16. Ground No.4 of this appeal is identical to that of ground No.4 of assessee's appeal for A.Y. 2008-09. In view of our observations made above this issue is restored to the file of the AO on the same line as per our directions given above while deciding the identical issue in the appeal of the assessee for A.Y. 2008-09.

17. So far as the appeal of the Revenue for A.Y. 2009-10 is concerned, the issues taken are exactly identical to that taken in assessee's appeal for A.Y. 2008-09. In view of our observations made above, this appeal of the Revenue is accordingly dismissed.

M/s. Fauzia Hospital (Prop. Dr. Mohd. Usman Shaikh)

18. In the result, appeals of the assessee are treated as allowed for statistical purposes whereas appeals of the Revenue are hereby dismissed.

Order pronounced in the open court on 18.11.2016.

         Sd/-                                                    Sd/-
    (G.S. Pannu)                                            (Sanjay Garg)
ACCOUNTANT MEMBER                                       JUDICIAL MEMBER

Mumbai, Dated: 18.11.2016.
* Kishore, Sr. P.S.

Copy to: The Appellant
        The Respondent
        The CIT, Concerned, Mumbai
        The CIT (A) Concerned, Mumbai
        The DR Concerned Bench
//True Copy//                             [




                                                  By Order



                                 Dy/Asstt. Registrar, ITAT, Mumbai.