DR DINESH JAIN vs. DEPUTY COMMISSIONER OF INCOME TAX II(2) MUMBAI
What did the High Court hold?
The High Court consolidated questions (A) to (E) with similar questions from another appeal (ITXA No. 133 of 2014) for assessment year 2006-07, stating that these questions did not raise substantial questions of law and were not entertained. Regarding question (F), which concerned the extrapolation of findings for a part of the year to the whole year, the High Court noted that the Tribunal followed the Supreme Court's decision in CST vs. H.M. Esufali H.M. Abdulali. The assessee contended that this case was inapplicable as there was no evidence of continued unrecorded receipts post-survey. The Court found that this distinction needed consideration at the final hearing. Therefore, the appeal was admitted only with regard to question (F). The operative direction was to admit the appeal for further hearing on question (F).
What were the facts?
The assessee, Dr. Dinesh Jain, a practicing dentist, is in appeal before the High Court against an order of the Income Tax Appellate Tribunal (Tribunal) for assessment year 2007-08. A survey under Section 133A of the Income Tax Act, 1961, was conducted at his clinic on August 30, 2007. During the survey, diaries and loose documents were found, indicating discrepancies between recorded receipts in the books of account and actual receipts noted in diaries/notebooks. A loose paper, 'Page No. 17', showing monthly receipts from April 2003 to June 2006, was also found. The assessee initially agreed to offer additional receipts shown in 'Page No. 17' to tax but later explained it as inflated figures prepared by his financial consultant for bank funding. The Assessing Officer enhanced the taxable income based on suppressed receipts and unexplained cash credits. The CIT(A) partly allowed the appeal, deleting additions for cash credits but upholding the enhancement for suppressed receipts and the difference in stamp duty valuation for a shop purchase. The Tribunal upheld the extrapolation of income suppression for a part of the year to the whole year and remanded the issue of shop purchase valuation for fresh consideration.
What were the issues?
The High Court had to decide on several questions of law. (A) Whether the Tribunal erred in relying on a statement recorded under Section 133A during survey proceedings, ignoring the Supreme Court's ratio in CIT vs. S. Khadar Khan Son. (B) Whether the Tribunal erred by relying on a statement recorded after midnight during survey proceedings, ignoring the Gujarat High Court's ratio in Kailashben Manharlal Chokshi. (C) Whether the Tribunal failed to appreciate that the onus shifted to the revenue when the assessee explained 'Page No. 17', its author, origin, and purpose, and clarified an employee's statement. (D) Whether the Tribunal was justified in disregarding an affidavit by Shri Ramesh Shetty, the author of 'Page No. 17', ignoring the Supreme Court's judgment in Mehta Parikh. (E) Whether the Tribunal erred in treating receipts as income and arriving at an arbitrary net profit rate of 90% for a professional, ignoring prior year ratios. (F) Whether the Tribunal erred in upholding the estimation of professional receipts for the whole year based on figures from 'Page No. 17' for only part of the year. The assessee argued that the Tribunal erred in its findings on these issues. The revenue's contentions are not explicitly recorded for each issue, but the appeal is by the revenue challenging the Tribunal's order.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
JUDGMENT :( Per M.S.Sanklecha, J.) In this appeal by the revenue under Section 260A of the Income Tax Act,1961 (“the Act”), the appellant assessee has challenged the order dated 10 April 2012 passed by the Income Tax Appellate Tribunal (“the Tribunal”) for assessment year 200708. The impugned CNR No : HCBM020187682013 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 04:15:32
ASN 2/8 order dated 10 August 2012 of the Tribunal is a common order passed for assessment years 200405, 200506, 200607 and 200708. 2) Following questions of law have been raised for our consideration. A) Whether in the present facts and circumstances of the case and in law, the Tribunal erred in relying on the statement u/s.133A of the Act, recorded on oath, Khadar Khan Son (2012) 254 CTR (SC) 228? B) Whether in the present facts and circumstances of the case and in law, the Tribunal erred by relying on the statement u/s.133A recorded after midnight in the course of survey proceedings ignoring the ratio laid down in the case of Kailashben Manharlal Chokshi (2008) 220 CTR (Guj) 138? C) Whether in the present facts and circumstances and in law, the Tribunal failed to appreciate that the onus of evidence shifted to the respondent, when the appellant explained Page No.17, its author, its origin and purpose and the clarification of the statement of the employee of the appellant that is of Ms. Brenda? Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 04:15:32
ASN 3/8 D) Whether in the facts and circumstances of the case and in law, the Tribunal was justified in disregarding the crucial affidavit dated 12 December 2008, on record of the proceedings, by Shri.Ramesh Shetty, the author of the loose paper explaining Page No.17 thereby ignoring the Apex Court judgment in the case of Mehta Parikh 30 ITR 181 (SC)? E) Whether the Tribunal in the facts and circumstances, erred in treating receipts as income and further by arriving at an ad hoc/arbitrary net profit rate of 90%, on an incorrect premises, that in case of a professional, no cost is involved and ignoring net profit ratios and material to gross receipt ratios, of the prior years? F) Whether in the facts and circumstances of the case and in law, the Tribunal erred in upholding the action of the respondent, whereby he estimated the professional receipt of the appellant for the whole year based on the figures mentioned in the loose paper (Page No.17) for part of the year only? 3) Brief Facts: (a) The appellant assessee is a practicing Dentist. On 30 August 2007 a survey was conducted under Section 133A of the Act at the Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 04:15:32
ASN 4/8 appellantassessee's clinic. During the course of survey, some diaries and loose documents were found. One such diary was marked as “A1 Fantasy”. In this diary, professional receipts from 6 August 2007 to 30 August 2007 were recorded but the pages before 6 August 2007 were torn therefrom. The receptionist of the appellant one Ms. D'Souza made a statement during the course of survey pointing out that the receipts from each patient is recorded in diary and note book which are handed over by her to the appellantassessee. From the perusal of the fees recorded in the diary and note book compared to that recorded in the regular Books of Account, it is found that the Books of Account record much lower amounts as receipts then the amounts actually received as recorded in the diary and note book. The discrepancies noticed between the alleged actual receipts and that shown in books of account were pointed out to the appellantassessee as under: Date Amount recorded in Note book Amount recorded in the books of accounts. 1.8.2007 13,100 1,100 4.8.2007 18,000 12,300 7.8.2007 7,200 1,150 9.8.2007 26,500 4,300 17.8.2007 29,600 11,500 28.8.2007 15,800 1,900 15,700 The appellantassessee in the course of his statement admitted that the amounts collected by the receptionist from patients were being entered in the diary /note book. Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 04:15:32
ASN 5/8 (b) Besides a loose paper titled “"Page No.17"” was found during the survey. This loose paper “"Page No.17"” recorded the monthly receipts from April 2003 to June 2006. On being confronted with "Page No.17" appellantassessee agreed to offer additional receipts shown in the loose paper “Page No.17” to tax. However, thereafter the appellant assessee sought to explain “"Page No.17"” by stating that this page had been prepared by his financial consultant one Mr. Ramesh Shetty who was preparing a project report to obtain funds from Bank for purchase of equipments. Therefore, it was stated that monthly receipts were inflated so as to enable larger finance from the bankers. (c) On 31 October 2007, the appellant assessee filed return of income declaring a total income of Rs.10.87 lacs. Thereafter, on 14 October 2008 a revised return of income was filed for assessment year 200708 declaring income at Rs.20.15 lacs. On 30 December 2009 the Assessing officer passed an assessment order enhancing petitioner's taxable income from Rs.20.15 lacs to Rs.64.35 lacs. This was essentially on the basis of suppression of receipts and unexplained cash credits. The suppression of receipts was on the basis the loose sheet Page No.17 showed receipts for the period April 2006 to June 2006 at Rs.18.82 lacs whereas the books of account show the receipt at Rs.11.27 lacs. Therefore, the percentage of suppression worked out for the above period was applied to the entire year from that disclosed in the books of account. On the above basis the suppressed income was determined at Rs.34.32 lacs for the entire year. However, the entire cash receipts were subjected to tax without any deductions on account of expenditure Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 04:15:32
ASN 6/8 incurred there from. Similarly an amount of Rs.9.28 lacs and Rs.60,000/ was added on the basis of loose sheet Page Nos. 66 and
In the assessment order, in view of the findings that the appellant assessee has purchased a shop at Rs.21.50 lacs when the stamp duty valuation is Rs.48.86 lacs, referred the issue of valuation to departmental Valuation Officer and reserved its rights to take remedial action on receipt of the report of the Valuation officer. 4) Being aggrieved the appellant filed an appeal to Commissioner of Income Tax (Appeals)(CIT(A)). By an order dated 1 November 2010 the CIT(A)partly allowed the assessee's appeal. The CIT(A) held that in view of order dated 15 October 2010 passed in rectification under Section 154 of the Act the addition of cash credits of Rs.9.28 lacs and Rs.60,000/ is no longer sustainable. Moreover, the CIT(A) also held that income be enhanced by the difference between stamp duty valuation and purchase price of the shop. Save and except the above, the CIT (Appeal) dismissed the appellantassessee's appeal. 5) Being aggrieved the appellantassessee preferred an appeal to the Tribunal. The appeal for assessment year 200708 was heard by the Tribunal along with the appeals for assessment year 200405, 2005 06 and 200607. The additional issues raised by the appellantassessee in this appeal before the Tribunal were as under: a) Addition of amount of Rs.34.32 lacs on account of suppressed receipt during the survey was not sustainable and Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 04:15:32
ASN 7/8 b) Enhancement of income on account of understated consideration on purchase of shop was not sustainable. So far as first issue was concerned, the Tribunal by impugned order upheld that findings of the lower authority of extrapolating the income suppressed for the part of the year to the whole year. So far as the second issue is concerned, the Tribunal by the impugned order set aside the order of CIT(A) with regard to enhancement of income on account of the difference between the stamp duty valuation at Rs.48.86 and the purchase price of the shop at Rs.22.50 lacs. However, the Tribunal by the impugned order remanded the above issue to CIT (Appeals) for fresh consideration. All other issues were common to the other appeals for assessment year 200506 and 200607 which are not entertained by the impugned order dated 10 April 2012 of the Tribunal. 6) In the appeal before us the appellant assessee has framed various questions of law. Questions (A) to (E) are identical to the questions raised in Income Tax Appeal No.133 of 2014. Therefore, Question (A) to (E) are being disposed of by our order passed today in Income Tax Appeal No.133 of 2014 for assessment year 200607. Therefore, questions (A) to (E) do not raise any substantial questions of law and are not being entertained. 7) So far as Question (F) is concerned, it deals with the first Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 04:15:32
ASN 8/8 issue raised before the Tribunal i.e. extrapolating the findings in respect made by the appellantassessee needs to be considered at the stage of final hearing. Therefore, appeal is admitted with regard to question (F) only. CHIEF JUSTICE
(M.S. SANKLECHA, J.) Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 04:15:32 Powered by TCPDF (www.tcpdf.org)
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