WEST COAST DIAGNOSTIC CENTRE & NURSING HOME,PALGHAR vs. CIT(A), PUNE

Further, the learned officer and the same confirmed by the Hon'ble CIT(A) erred that, the survey was conducted on 08/03/2019 and as per the Tentative Profit & Loss Account Gross Receipt shown Rs. 62,24,650/- and after deducting expenses towards purchase and other direct expense, Net Profit was found Rs. 15,96,596/-.

However, the view considers by the learned officer and the same confirmed by the Hon'ble CIT(A) is not all acceptable because Tentative Profit and Loss is not the Final or Actual Profit and Loss. However, the actual expenses for the year were of Rs. 1,05,43,030.76/-however, the tentative expenses were Rs. 46,28,054/. Further Survey was conducted before completion of year and there were many expenses which are occurred after the date of survey and on or before

3 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home 31/03/2019 for which evidence copy has been submitted but the learned officer has not considered the same.

Some expenses which has been shown in the Audited Profit and Loss Account but the same were not in the Tentative Profit and Loss Account and the same has already been submitted in the assessment proceeding as well as CIT(A) but the same has not been considered.

However, Income Tax Department can tax assessee only on real Income earned by Assessee and not on tentative Income derived by Income Tax Department based on loose paper or without any corroborative evidence.

The Appellant craves, leave to add to, amend, alter or withdraw any of the above grounds of appeal before or at the time of hearing of the appeal, if necessary.”

3. The brief facts of the case are that in the Return of Income AY 2019-20, the assessee hasdeclaredgross receipt amount to Rs 1,13,08,880/- for the period which comprises of receipt collection from X Ray, CT scan, Other Collection and IPD wasstarted from January 19 onwards. All the items mentioned above are duly recorded in the books of account and books of account were duly audited under the Income tax Act.During course of Survey, the survey party relied onBrown loose dairy paper for which there was nocorroborative evidence available with the assessee exceptDairy paper. In this connection, the assessee explained as under: - “Our Explanation in respect of Brown Dairy Paper is as follows:- In respect of Brown Dairy paper which Survey party of Income tax Department treated as income is merely Tentative Projection of Gross Receipts whichAssessee has prepared for availing benefit of Loan from Various financialinstitutions. Assessee was planning to expand its Business by starting IPD, more X. Ray Machines, more Pathology testing Machine etc which requiresadditional working Capital and Fixed Capital for the purpose of New Beds.

4 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home New Machines, New Medical Staffs and other Supporting needs. Modus operandi while availing any Finances from Financial Instructionbasicrequirement is to produced Projection of Gross Earning ie Receipt.

Assessee currently availing LAP Loan facility from Kotak Bank which is dulyreflecting in Balance Sheet produced Before Income tax Department.

Survey Party of Income tax Department has impounded Day to Day ReceiptBooks which reflect Assessee actually Collection from its Business but the Department has never verified the said Day to day Receipt Books whichindicates the Actual Collection made by Assessee for the said period. FromReports Generated from CT scan and X ray Machine which is pre-seriallynumbered which cannot be altered or modified which can be verified for thepurpose of verification of Actual Receipt of Assessee.

Assessee hereby prove the Gross Receipt which Income Tax Department haverelied upon is incorrect and it's Tentative Projection.

Calculation of Actual and maximum Capacity of the same is as follows:- Actual as 31/03/2019 IF at Maximum Cap on 31/03/2019 Amount Capacity Per test Amount Capacity Per rate test Rate CT Scan 12,52,000 2 per 2000/- 18,78,000 3 per 2000/- day day X-ray 5,47,750 5 per 350/- 7,66,850 7 per 2350/- day day OPD collected and such 95,09,130 50 per Avg rate 96,66,437/- 60-70 Avg other receipts like ECG, day 608-/- per day rate Collection, Health 608/- checkup, Pathology, Ultrasound, IPD etc 1,13,08,880 1,26,11,287 In given Case of Assessee, West Coast Diagnostic Centre & Nursing Homewhich is situated In Dahanu Road being Rural and Adivasi Area, people of that area has low payment capacity and 5 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home low standard of living Sometimes Assessee has to assess such patients for Free of Cost or at discounted price.

In case Case of Assessee, part of OPD Collection are the receipts pertainingto Mr&MrsPoonawala Dr Mr&MrsPoonawala individually in its Return ofincome have shown OPD Income of Rs 6,97,053/-& 8,67,975/- respectively soit is not included in West Coast Gross Receipt.”

Dr Mr&MrsPoonawalaaredelivering Lectures at Vedantaa Institute Medical College in Dahanu Road and earns Salary Income which duly reflecting in its Return Income, Dr Mr&MrsPoonawala also looks into day to day operation of Kety Medicare center and also look into Finance management of both Kety Medicare and West coast. West Coast has only one Professional Doctor for OPD& IPD (which started from January 2019), this Professional Fees is duly Reflecting in Profit and Loss Account. From the above Explanation it is clear that if Assessee works for 100% capacity (24X7) it is not possible for Generate such huge Gross Receipt in give Location and Place of Operation X DEPAN In Show Cause Notice, your Honor is Comparing Tentative Profit and Loss Accounts as per Statement u/s 131 which is incorrect, and which give unrealistic review of operation of Business of Assessee.

The Dictionary Meaning of words "Tentative" means unsure; uncertain; not definite, done as a trial, experiment which itself says that Profit and Loss Accounts relied by your honor is Tentative means uncertain and unrealistic so comparing the figure of with Tentative P&L is not Possible. Actual audited Profit and Loss Account reflects and shows true and Correct Figure.

Assessees hereby explain Reconciliation Statement between Tentative(uncertain) vis Audit Profit and Loss Account As per Show Cause Notice and as per Tentative P&L profit is determined Rs15,96,597/- upto 08/03/2019 in which many entries such as Depreciation, Interest on Loan, Payment of Professional Fees, Remuneration to Partners etc was accounted on 31/03/2019 when books of Accounts was finalized.

We hereby enclosed chart with Reconciliation with Tentative P&L which your honor has not taken in consideration while issuing Show Cause Notice.

6 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home 1. Actual Depreciation of Rs 20,36,750/- was not taken into consideration tentative Profit and Loss Accounts we hereby Enclosed Proof of Depreciation which Audited under Income Tax Act.

2. Actual Electricity Expenses for the period is Rs 5,54,220/- but as per Tentative Profit and Loss Accounts is only Rs 369140/- we hereby Enclosed Proof of electricity bill to Prove Assessee claim.

1. Professional Fees of Rs 9,63,070/- paid to Dr Bhavesh Kansara but as per Tentative Profit and Loss Accounts is only Nil, we hereby Enclosed Proof of Form 15A to Prove Assessee claim.

5. Actual Salary Expenses for the period are Rs 20,41,854/ but as per Tentative Profit and Loss Accounts is only Rs 12,69,572/- we hereby Enclosed Proof of Salary paid for the period to Prove Assessee claim.

6. Actual Interest on Loan for the period is Rs 29,75,780/- but as per Tentative Profit and Loss Accounts is only NIL, we hereby Enclosed Proof of Interest payment to Kotak bank for the period to Prove Assessee claim.

7. Remuneration paid to Partners of Rs 6,14,854/- is as per Audited Profit and loss Accounts with limit specified u/s 40(b)(v) of Income Tax Act.

For the above Assessee hereby provide Reconciliation which is enclosed in Annex -1 (All supporting Document will be submitted in Next Letter)

From the above explanation it clearly proves that Expenses considered by Income tax Department from Tentative Profit and Loss is incorrect as compared with Audited Profit and Loss account. Audit Profit and Loss Accounts show correct and real Income earned by Assessee. As per Supreme Court in Poona Electric Supply, this reasoning postulates that "Income-tax is a tar on the real income. ie, the profits arrived at on commercial principles subject to the provisions of the Income-tax Act Subsequently, the Orissa High Court in Prafulla Kumar Malik17 emphasized that income tax is Imposed only on profits he actually receives and not on the profits he might have, but has not received. Income Tax Department can tax assessee on real Income earned by assessee and not on tentative income derived by Income Tax Department based on loose paper or without any corroborative evidence.

In this case as per Show Cause Notice Net Profit considered by your honor of Rs 1,01,85,136/-not real Income earned by Assessee as your honor has not considered Actual Expenses Incurred by 7 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home Assesse for the purpose of Business andhave also not consider the real receipt earned by assessee. Merely relying on one page of Brown Diary which is tentative projection for future Expansion for applying Finance for future. Your honour can independently verify the same from Day to day Collection book Impounded which show total receipt earned since year 2012. Therefore, the Question of Making addition of the tentative Income based on loose paper and without corroborative evidence and without considering assessee claim and proof is against the Natural justices Principal of Assessee Kindly accept the same & acknowledge the receipt.”

2.1 The explanation offered by the assessee was not found acceptable by the Ld. Assessing Officer for the following reasons: a. The assessee contended that the survey team had relied upon a brown loose-leaf diary, which, according to him, does not constitute corroborative evidence. However, this contention is not tenable, as the diary reflects actual receipts from CT scans, X-rays, and OPD services. There exists a discrepancy of Rs.85,88,540 between the figures recorded in the diary and those reflected in the books of accounts produced during the survey. b. Examination of the regular books of account clearly indicates that the assessee failed to disclose income amounting to Rs.85,88,540. c. Furthermore, the partner of the assessee’s firm admitted under oath during the survey proceedings that the amount of Rs.85,88,540 represented undisclosed business income. d. The assessee also claimed that the figures noted in the brown diary were merely tentative projections of gross receipts prepared for the purpose of availing loans from various financial institutions. The assessee intended to expand the business by introducing an IPD unit, additional X-ray machines, and pathology testing equipment, all requiring increased working and fixed capital. It was submitted that the assessee was already availing a LAP loan facility from Kotak Bank, which is reflected in the balance sheet. Based on 8 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home this, the assessee argued that the projections had a valid basis and should not be treated as actual income. e. This argument was also rejected. The assessee had admitted under oath that the income of Rs.85,88,540/- was calculated after accounting for all expenses. Moreover, the assessee failed to furnish any bank statements to substantiate that major expenses were incurred post-survey date, i.e., after 08.03.2019. Hence, it is evident that the assessee had suppressed income. The computation of business income is as follows: Particulars Amount (Rs.) Net profit declared by the assessee up to survey date 15,96,596/- Additional income admitted during survey 85,88,540/- Income declared in return of income (ROI) 8,77,963/- Income not offered in ROI 93,07,173/- In light of the above, it is clear that the assessee failed to disclose income amounting to Rs.93,07,173. Accordingly, this amount is added to the total income of the assessee.

3. Aggrieved by the assessment order, the assessee filed an appeal before the Ld. CIT(A). After considering the assessee's submissions, the Ld. CIT(A) deleted the addition of Rs.17,18,663, representing the difference between the business income as per the Profit & Loss Account submitted during the survey and the income declared in the return. However, the addition of Rs.85,88,540, admitted during the survey, was upheld. The assessee, still aggrieved, has now filed an appeal before this Tribunal.

9 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home 4. The Ld.AR filed a written submission which is kept in the record. The Ld.AR filed the submission containing pages 1 to 14. During the argument it is stated that the assessee during the time of survey accepted difference by a statement on oath amount of Rws.85,88,540/- but that is an incomplete account and after that the accounts were completed and the assessee found that the total turnover will come to Rs.1,13,08,880/- whereas during the time of survey, it was found that in the incomplete P&L Account, the total receipt comes to Rs.1,48,13,190/-. The Ld.AR placed that during the time assessee declared the income of Rs.85,88,540/- which was totally from incomplete accounts. The Ld.AR further accepted that the difference of total receipts as per the survey and as per the final P&L accounts is duly offered for taxation at NP ratio. The Ld.AR further relied on that the expenses were not properly taken care of during the survey. The declared survey amount is included in both expenses and gross receipts. Here, the assessee enclosed the re-conciliation with tentative P&L Account and the addition made on the assessment order, the details of which are as under: - “We hereby enclosed chart with Reconciliation with Tentative P&L. AO has stated in his Assessment order that we have replied to his show cause Notice on which AO relied on for addition of Income as under as mentioned in Assessment order as under

10 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home 3. Actual Oxygen Gas expenses for the period is Rs. 105600/- but as per Tentative Profit and Loss Account is only NIL we hereby Enclosed proof of Oxygen gas bill to prove Assessee claim.

5. Actual Salary Expenses for the period is Rs 20,41,854/ but as per Tentative Profit and Loss Accounts is only Rs 12,69,572/- we hereby Enclosed Proof of Salary paid for the period to Prove Assessee claim.

6. Actual Interest on Loan for the period is Rs 29,75,780/- but as per Tentative Profit and Loss Accounts is only NIL we hereby Enclosed Proof of Interest payment to Kotak bank for the period to Prove Assessee claim. As we submitted at the time of Assessment the proof of expenses claimed by us and not mentioned in tentative property account.

• While Filing of Income Tax Return for Assessment 18-19 we carried forward the loss of Rs. 17,45,881 out of which Rs. 2,63,109 is adjusted in Return of Income for AY 19-20 balance of Rs. 14,35,988 is next year (carried forward) but while determining AO has not considered loss claimed by Assessee in Return of Income Rs. 2,63,109 and balance loss Rs 14,35,988 is to be adjusted by AO while passing the Assessment order. Rs. 1,01,85,136(Rs.15,96,596 Rs. 85,88,540) is added income as per survey statements. (We enclose herewith survey statements).

11 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home Thusstatements include professional fees of Mr. Poonawala & MrsPoonawala Total Rs.15,65,028 (Rs 6.97,053+ Rs. 8,67,975) which is included in income Tax return of Both the persons Thus there is a double addition AO has not considered remuneration paid to partners Mr & Mrs Poonawala Rs. 3,07,427 each, thus there is a double addition in personal return also they have received remuneration from partnership firm. AO has not stated about loss claimed in return as well as carried forward loss and he has not adjusted in computation while doing assessment. AO has also not considered carried forward loss of up to Rs. 17,45,881 (2,63,109+14,35,988) determined by the income. The assessee has filling return of Income after remuneration of partners Rs. (6,14,854) is taxable income out of which assessee has claimed carried loss of Rs.17,45,881 Enclose here with copy of Return of Income which shows carried forward loss of Rs.17,45,881 which is Claiming Return of Income for A.Y. 17-18.”

“Conclusion In light of the above facts, law, and judicial guidance, the Revenue submits that the addition of Rs.85,88,540/- on account of suppressed receipts has been rightly made by the Assessing Officer and justly upheld by the first appellate authority. The case against the assessee is compelling on evidence the assessee was found maintaining parallel records of income and knowingly failed to report a substantial portion of its earnings. The assesse's own contemporaneous admissions, buttressed by documentary proof, leave little room for doubt that this amount represents its unaccounted income for Α.Υ. 2019-20.

The attempt by the assessee to wriggle out of the admission after a considerable lapse of time is neither credible nor supported by any evidence. Both the tax authorities below have recorded

12 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home findings that expose the assesse's shifting stand and reinforce the conclusion of undisclosed income. There is no material on record that rebuts the evidence gathered during the survey on the contrary, all presumptions of law (per Section 292C) and burden of proof principles work against the assessee here. The assessee has been unable to substantiate any of its grounds of appeal.

Legally, the Revenue's position is fortified by the explicit provisions of the Act (Sections 69A, 1331, etc.) and is on all fours with multiple High Court rulings which uphold additions in similar circumstances. The fear that survey admissions are unreliable is allayed in this case by the presence of unimpeachable corroborative evidence and the absence of any genuine coercion. Taxation is ultimately based on truth and substance; here the truth as admitted by the assessee and evidenced by the diary is that 85.88 lakh of income was suppressed. To allow the assessee to escape tax on this amount would be a travesty of both fact and law, and would send the wrong signal that one can confess, evade and later retract without consequence.

The CIT(A) has written a well-reasoned order confirming the addition, after addressing all of the assesse's contentions fairly. The Revenue fully aligns with CIT(A)'s findings. We respectfully emphasize that no infirmity has been shown in the CIT(A)'s decision. In fact, the CIT(A) gave partial relief on issues where the assessee's explanation had some merit (the profit difference and loss set-off, demonstrating an unbiased application of mind. But on the core issue of suppressed receipts, the CIT(A) rightly found the facts and law to decisively favor the Revenue's stand.

To conclude, the addition of Rs.85,88,540/- is accurate and valid. The assessee's grounds of appeal are baseless and contradict its own prior admissions and the evidence on record. We respectfully pray that the Hon'ble ITAT dismiss the assessee's appeal on this issue and uphold the assessment of the said amount as the assessee's income. This would be in the interest of justice, revenue, and parity with numerous precedents dealing with tax evasion uncovered in surveys.”

13 ITA 148/Mum/2024 West Coast Diagnostic and Nursing Home