GURVINDER SINGH RANDHAWA vs. COMMISIONER OF INCOME TAX

-1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ITA No. 135 of 2012 (O&M) Date of decision: 30.01.2013 Dr. Gurvinder Singh Randhawa ...Appellant versus Commissioner of Income Tax, Patiala ...Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Pankaj Jain, Advocate and Mr. Devender Goyal, Advocate for the appellant. HEMANT GUPTA, J.(Oral) The present appeal under Section 260A of the Income Tax Act, 1961 (for short 'the Act') is against the order dated 17.11.2011 passed by the Income Tax Appellate Tribunal Bench “B” Chandigarh (for short 'the Tribunal) in ITA No. 157/Chandi/2011 for the assessment year 2006-07. The Assessee has claimed the following substantial question of law in the present appeal: “Whether under the facts and circumstances of the case and on the true & correct interpretation for the provisions of Section 29, 145, while arriving at the 'chargeable income', the action is sustainable in concluding the 'proceedings on presumption' ignoring 'material fact' containing 'material particulars' on record?” The Assessing Officer during the course of assessment made addition of Rs.25,13,016/- on account of undisclosed 247 surgeries @ Rs.10,174 per surgery on the basis of receipts for 1008 operations in a year at the average rate basis. The said order was affirmed by the Commissioner of Income Tax (Appeals) Patiala vide order dated -2- 13.12.2010 (Annexure A-20). However, in appeal, the learned Tribunal reduced the quantum of addition @ Rs.8000/- per surgery. The learned Tribunal recorded the following findings:- “During the appellate proceedings wherein numerous opportunities were allowed to the assessee to present his case vis-a-vis addition made by the Assessing Officer after rejecting the books of account. The assessee is not in appeal (amended grounds of appeal) against the rejection of books of account and objection raised is against the addition made on account of unaccounted surgeries. The Assessing Officer had made an addition of Rs.25,13,016/- on account of 247 surgeries @ Rs.10,147/- per surgery. The learned counsel for the assessee without prejudice admitted to the aforesaid discrepancies but had objected to the rates of non-foldable surgeries to be applied i.e Rs.6,000/- per surgery, as per which the shortage works out to Rs.14,82,000/-. In view of the admission of the assessee what discrepancies have crept in the books of account, we are conformity of unaccounted surgeries merits to be made in the hands of the assessee. The assessee claims the average rate of surgery at Rs.6,000/- per surgery, whereas the Assessing Officer has applied the average rate of surgery at Rs.10,174/-. No basis has been filed by the assessee to establish its case whereas the Assessing Officer had applied the average rate of surgery vis-a- vis total receipts declared for the year under consideration. In the entirety of facts and circumstances of the case we direct the Assessing Officer at apply the rate of Rs.8000/- per surgery to compute the income of the assessee for 247 surgeries carried out during the year. Thus ground No.2 raised by the assessee is party accepted.” Learned counsel for the appellant has vehemently argued that the average rate on which assessment was framed by the Tribunal @ Rs.8000/- is not reasonable, as it is not possible that all surgeries would give rise to income at the said scale. He relies upon the judgment of Hon'ble the Supreme Court reported as CST vs. H.M. Esufali H.M -3- income, whereas the Tribunal has reduced the rate of addition @ Rs.10,147/- applied by the Assessing Officer to Rs.8000/- per surgery. We find that once the assessee has himself stated before the Tribunal that the average rate of the surgery be reduced to Rs.6000/- per surgery, then now it is not open to the appellant to dispute that that the flat rate applied by the Tribunal is arbitrary. In fact, the average rate of surgery @ Rs.10,147/- was based upon the number of surgeries performed by the appellant in one year and the income earned therefrom. The addition made by the Assessing Officer were based upon reasonable grounds, which may not be said to be arbitrary. In fact, the Tribunal was indulgent to the appellant in reducing the average rate to Rs.8000/- per surgery. Learned counsel for the appellant has further argued that a specific ground was raised before the Tribunal that the rejection of books of accounts is wholly unjustified and that the Tribunal has wrongly recorded in the order that the rejections of books of account was not disputed by the assessee. We do not find any merit in the said argument as well. Mere -4- fact that in the grounds of appeal, the appellant has raised a ground to assert that rejection of books of account is incorrect, is not sufficient to accept the argument of the appellant. The Tribunal has recorded the concession on the basis of argument raised during the course of hearing. Therefore, the finding has been recorded by the Tribunal on the basis of proceedings at the time of hearing. The concession recorded during the course of hearing cannot be permitted to be disputed in appeal. In view of the said fact, we do not find that any substantial question of law arises for consideration by this Court. Dismissed. (HEMANT GUPTA) JUDGE ( RITU BAHRI )

JUDGE January 30, 2013 G.Arora/Vimal