DR. SHAILESH KOTHALKAR,NAGPUR vs. ACIT-CENTRAL CIRCLE-3, NAGPUR

1Ro IN THE [NCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SF: G.D.AGRAWAL, HON'BLE PRESIDENT AND SH. MAHAVIR SINGH, JUDICIAL MEMBER IANo1QNAG/2014 (Axzeexment Yeari 2007_-081 Dr Shailesh Kothalkar; VS ACTT, Bkkardara Chowk, Central Cirele-3, Nagpur-440009. 3rd Floor Saraf Chambers, PAN-AHXPK13IZM Sadar_Nagpur 444001, [Apeellaat (Regpondent) Eepellant bY Sh,PRGandhi; Adv Respondeat by Dr Milind Bhuaani, CIT DR Date oIHearing 08.03.2018 Date of Pronouncement 08,03.2018 NAg7# ORDER PER BENCH This appeal by assessee is arising out of the arder of Ld,CITIA}-1, Nagpur vide Order No.CITIA}-1/677/2011-12 dated 26.12.2013. The asgessment wAs framed by ACIT, Circle-3, Nagpur u/s 143(3) r.W.8 263(1) of the Income Tax Act, 1961 (in short Act"| for A.Y. 2007-08 vide his order dated 26.12.2011, 2 The only issue in this appeal of a88e88ee'$ is against the order of Ld.CIT(A) confirming the addition made by the Assessing Officer on estimate basis on the receipts by him from indoor/outdoor patients 3 Brief facts relating to the issue are that the assessee is ENT Doctor and derives income from profession and income from other sourceg. A survey under section 1334 of the Act wa8 conducted on the hospitel of the assessee on 14.09.2006. During the course of survey, certain documents were found and examined by the Assessing Officer; The Assessing Oficer noted the details of OPD patients; indoor patients and estimated the total indoor and outdoor ITA No_ 101/NAG/2014 patients at Rsl9 lacs over and above declared by Ihe assessee: Aggrieved the before Ld.CIT(A) who restricted the addition by assessee prelerred appeal observing in para 6.3 to 6.5 a8 under:- 6.3 'Even during survey; no bills or vouchers were found to support the contention 0f the appellant On the other hand, A, a_ has also estimated In and circumstances Of the case and the receipl and nence fact considering the fact that doctor set up new practice and he may not get the usual market rate in comparison to older doctor, estimate made by A.O. i5 for old patient and Rs, 40/- for new patient instead restricted to Rs. 75/_ of Rs.100/ and Rs.50/ - respectively: 6.4 Coming to second issue of fee charged from indoor patients Again to support his figure %f receipt; Not appeliant has produced nothing single bill issued is available even in respect of these patients, who had deposited advance and copy of such forms are appellant could not produce 0 single bil before AO. Ax 2006-07 appellant has submitted that querage 6. 5. Int appeal for of 188 impounded by A.O. Comes to "advance 08 the 40 forms out ie; out 0f 188 total forims, 40 forms had Rs.2,625/ - [Annexure "AY total of these advance i5 Rs.1,05,500/ Now duance money and that this should be taken as standard for Qll other eppellant claimed patients as decided in appeal for AY 2006-07. do not find any logic in MagpD doing so as indoor patient may be having various degree of element and from I to 5 days atleast or even more may require hospitalization Hence no such average Can be depending on their medical conditions and moreover it is just an "advance" and final bill ha8 to be much accepted than the advance: Normally; 50% is taken as advance a5 tronm rent" more and 'doctor Disit" and "nursing churges" later and as per actual produced nothing to substantiate the claim that Appellant has charged from patients. A0. hs taken advance money was all the money the highest amount appearing as the final amount charged from some of to be an extreme position Since no the patients This also appears Pagc | 2 182 ITA No 101/NAG/2014 document are produced by the appellant which he was bound to maintain to support his claim and keeping in mind the fact that final bill is nearly twice the amount %f advance the estimation 0f receipt; made by A,O, is restricted to Rs 5,000/ - per case in cuse of 225 indoor patient received by appellant during the Year; Aggrieved, the assessee came in appeal before the Tribunal At the outset; Ld: Counsel for the assessee stated that the Tribunal in earlier years i.e_ Assessment Year 2006-07 in ITA no, 349/NAG/2012 in the case of Dr. Shailesh M.Kathelkar v/s ITO vide order dated 08.08.2017 which is referred by the Assessing Officer a8 well &8 Ld.CIT(A) in this year, ha: deleted the addition by observing in para 3 and 4 A8 under:- 3 "All the issues are in connection with estimation Of income received Trom indoor outdoor patient Tne @ssessee furnished the consolidated figure of patient and also shown the income The assessee Was mnointaining the cash book; Ledger ond other details 0f expenses; The Assessing Officer did not reject the books cf account maintained and produced by lhe assessee. The assessee produced the consolidated figure of indoor outdoor patient The contention of the assessee was that the assessee is an ENT Doctor, therefore, indoor patients Were Very less. Na doubt it is incumbent upon the assessee to prove his case by adducing sufficient evidence on record Consolidated figure has been given which has been taken into consideration by the Assessing Officer to bifurcate the income from indoor/outdoor patient there i5 no specific parameter on record to which it con be assumed that the income assessed by the Assessing Officer is justifiable or unjustifiable. The Assessing Ofjicer made the addition on the basis of estimation while he was not having any tangible material with him to enhance the income of the assessee_ Subsequently; before the learned Commissioner (Appeals} some relief wns given by considering estimation of number of patients in outdopr and indoor and also assessed the income on estimation basis Since the books Paze 3 TTA No_ 101/NAG/2014 Of account of the assessee have nat been rejected before estimation %f the income 0f the assessee, therefore, we are of the view that the estimation of income by the Assessing Officer is not justifiable and in accordance with law. In this regard; we also_ find support of law settled by the Hon'hle P&H in CIT us RK. Rice Mill Pvt: Lta , 319 ITR 173 (P&H} and CIT vS High Court 315 ITR 185 (PBsH} However, the assessee also took M s. OM Overseas, that the material produced before the Assessing Officer was not the plea consideration for enhancement of the income Therefore, in the taken into said circumstances, the addition is not justifiable because nn opportunity not glven to confront the material relied upon by the Assessing Officer was and in this regard, reliance placed upon the Iaw settled in the following decisions: CIT vs Indo Nippon Chemnicals Co Ltd 261 ITR 775 (SC}; [ id CIT vs Ashwani Gupta; 322 ITR 396 (Del}; and iii) CIT' vs SMC Share Brokers Ltd , 288 ITR 345 (Del:} to supply the material used 4 The assessee took the genuine plea grant an opportunity to Cross examine the person against him and to was relied upon by the Assessing Officer. Anyhow, whose statement enhancement 0f the income on the basis 0f material If any: which was not to the assessee and assessing the income Of the assessee on the #pplied asis %f estimation cannot be said to be justifiable in accordance with law. into note of these facts and circumstances, we are 0f the view that Taking against [aw the finding of the learned Commissioner (Appeals} is wrong and is not liable to be sustained in the eyes 0f law, therefore, we set aside Commissioner (Appeals) on this issue and the finding of the leared deleted the addition estimated on the basis of estimation Accordingly all these issues are decided in favour of the assessee has already been deliberated by the Tribunal in earlier years 5 As the issue following the same, we delete the exactly on identical facts; respectfully addition restricted by Ld.CIT(A) and allow this appeal of the assessee: Pagc | 4 185 ITA Nq 101/NAC/2014 6 In the result; the appeal filed by the assessee i8 allowed Order pronounced in the open court on O84h March, 2018. sdl (G.D_AGRAwAL) (MAHAVIR SINGH) JUDICIAL MEMBER HON'BLE PRESIDENT Dated: QBth MARCH, 2018 #Amit Kumart Wagrun Copy _to; 1_ The Appellant 2. The Respondent 3, The CITIAJ; Nagpur 4, The CIT , Nagpur 5. The DR, Bench, ITAT; Nagpur 6_(uctd Fl? Order Vey #RaslRejatar ITAT; Ne dle EenejcNitgpur 27R? _it*9 Incone Tax Appellate Trlbunal TTYR t / Nagpur Bonch