Dr. Mayur M.Shah, v. The Income tax Officer,S.K. Ward-4,, Modasa

ITA 2195/AHD/2008 | 2004-2005
Pronouncement Date: 31-01-2011 | Result: Dismissed

Appeal Details

RSA Number 219520514 RSA 2008
Assessee PAN AQCPS9324D
Bench Ahmedabad
Appeal Number ITA 2195/AHD/2008
Duration Of Justice 2 year(s) 7 month(s) 21 day(s)
Appellant Dr. Mayur M.Shah,
Respondent The Income tax Officer,S.K. Ward-4,, Modasa
Appeal Type Income Tax Appeal
Pronouncement Date 31-01-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 31-01-2011
Date Of Final Hearing 03-01-2011
Next Hearing Date 03-01-2011
Assessment Year 2004-2005
Appeal Filed On 09-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HON' BLE SHRI N.S. SAINI A.M. ) I.T.A. NO. 2195/AHD./2008 ASSESSMENT YEAR : 2004-2005 DR. MAYUR M. SHAH SABARKANTHA -VS.- INCOME TAX OFFICER SK WARD-4 MODASA (PAN : AQCPS 9324 D) (APPELLANT) (RESPONDENT) & I.T.A. NO. 2260/AHD/2008 ASSESSMENT YEAR : 2004-2005 INCOME TAX OFFICER WARD-4 MODASA -VS. DR. M AYUR M. SHAH BAYAD SABARKANTHA (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.N. DIVETIA DEPARTMENT BY : SHRI DILEEP KUMAR SR. D.R. O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THESE CROSS APPEALS ARE AGAINST THE ORDER DATED 31 .03.2008 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-X AHMEDABAD FOR THE ASSESSMEN T YEAR 2004-05. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S A GYNAECOLOGY DOCTOR AND RUNNING VATSALYA HOSPITAL AND SONOGRAPHY CLINIC AT BAYAD. A SURVEY WAS CARRIED OUT UNDER SECTION 133A OF THE INCOME TAX ACT IN THE BUSINESS PREMISES OF T HE ASSESSEE ON 10.11.2003 WHEREIN A STATEMENT OF THE ASSESSEE WAS RECORDED. IN THIS STA TEMENT IN REPLY TO QUESTION NO. 18 HE MADE VOLUNTARY DISCLOSURE OF RS.18 00 000/- STATING THAT ALL THE PROPERTIES HAVE BEEN INVESTED FROM HIS OWN INCOME AND AS THE DETAILS ARE COMPLICATED HE DI SCLOSED INCOME OF RS.18 00 000/- ON ACCOUNT OF UNDISCLOSED INCOME IN RESPECT OF INVESTMENT IN R ESIDENTIAL BUNGALOW VATSALYA HOSPITAL AND INVESTMENT IN FIXED DEPOSITS. SUBSEQUENTLY THE ASS ESSEE RETRACTED FROM THE AFORESAID DISCLOSURE MADE AT THE TIME OF SURVEY PROCEEDINGS BY FILING AN AFFIDAVIT DATED 29.10.2004. HE ALSO FILED AN AFFIDAVIT OF HIS WIFE DR. PRERNA M. SHAH DATED 01.1 1.2004. IN THE AFFIDAVIT IT WAS STATED THAT THE IMMOVABLE PROPERTY I.E. RESIDENTIAL BUNGALOW AND VA TSALYA HOSPITAL BELONGED TO HIS WIFE DR. PRERNA M. SHAH. THE ASSESSING OFFICER RELIED UPON T HE VARIOUS DECISIONS AND HELD THAT THE 2 ITA NOS . 2195-AHD-2008 & 2260-AHD-2008 ASSESSEES RETRACTION IS NOT VALID AND NOT CORRECT BECAUSE IT WAS MADE AFTER ONE YEAR OF THE DISCLOSURE AND THEREFORE IT WAS AN AFTERTHOUGHT. 3. FOR THE ASSESSMENT YEAR UNDER APPEAL THE ASSESS EE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.2 81 550/- ON 01.11.2004. THEREA FTER THE ASSESSEE FILED REVISED RETURN ON 18.05.2005 DECLARING TOTAL INCOME OF RS.3 58 550/-. THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 143(3) AT TOTAL INCOME OF RS.21 63 215/-. IN THIS ASSESSMENT ORDER THE ASSESSING OFFICER MADE ADDITION OF RS.18 04 668/- A S UNDER :- (A) REJECTION OF BOOKS OF ACCOUNTS (PARA NO. 7 OF THE ASSESSMENT ORDER) RS.13 88 635/- (B) COST OF CONSTRUCTION OF VATSALYA HOSPITAL (PAR A NO. 8 OF ASST. ORDER)- RS. 8 181/- (C) ON ACCOUNT OF UNDISCLOSED INCOME (PARA NO. 9 O F ASSESSMENT ORDER) - RS. 4 03 184/- (D) PETROL ETC. EXPENSES (PARA NO. 10 OF THE ASSE SSMENT ORDER) - RS. 4 668/- TOTAL : RS.18 04 668/ - 4. ON APPEAL IN THE IMPUGNED ORDER THE LEARNED COM MISSIONER OF INCOME TAX (APPEALS) ALLOWED THE PARTIAL RELIEF TO THE ASSESSEE. AGGRIEV ED WITH THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BOTH THE SIDES ARE IN APPEALS BEFORE THE TRIBUNAL. 5. VARIOUS GROUNDS RAISED BY THE ASSESSEE IN HIS AP PEAL ARE AS UNDER :- (1.1). THE ORDER PASSED U/S. 250 OF THE ACT ON 31.0 3.2008 FOR AY 2004- 05 BY CIT(A.)-X AHMEDABAD PARTLY UPHOLDING THE ORD ER OF ASSESSMENT PASSED BY A.O. IS WHOLLY ILLEGAL UNLAWFUL AND AGAI NST THE PRINCIPLES OF NATURAL JUSTICE. ADDITION ON ACCOUNT OF DHARTI MEDICAL STORE 2.1. THE LD.CIT(A.) HAS GRIEVOUSLY ERRED IN LAW AND /OR ON FACTS IN REJECTING THE AFFIDAVIT FILED BY THE APPELLANT AS W ELL AS THE PROPRIETOR OF DHARTI MEDICAL STORES. 2.2. THE LD. CIT(A.) HAS GRIEVOUSLY ERRED IN LAW AN D /OR ON FACTS IN UPHOLDING THAT THE APPELLANT HAD EXAMINED THE PATIE NTS AS NOTED BY THE PROPRIETOR OF DHARTI MEDICAL STORES IN HIS BILL BOO K AND THEREBY UPHOLDING THE ADDITION IN RESPECT OF ALLEGED SAID P ATIENTS. 2.3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW THE LD. CIT(A.) OUGHT NOT TO HAVE RELIED UPON THE STATE MENT OF THE PROPRIETOR OF DHARTI MEDICAL STORES AS WELL AS THE NOTINGS MAD E BY HIM IN HIS 3 ITA NOS . 2195-AHD-2008 & 2260-AHD-2008 RECORD AND THEREFORE THE CONCLUSION ARRIVED AT BY A.O. ON THE BASIS OF SUCH MATERIAL WAS VITIATED AND LIABLE TO BE STRUCK DOWN. 2.4. THE LD. CIT(A.) OUGHT NOT TO HAVE CONFIRMED TH E ADDITION OF RS.37 295/- OUT OF THE ADDITION MADE BY A.O. RELYIN G UPON THE STATEMENT OF THE PROPRIETOR OF DHARTI MEDICAL STORE. ADDITION OF SONOGRAPHY RECEIPTS 3.1. THE LD. CIT(A.) HAS GRIEVOUSLY ERRED IN LAW AN D ON FACTS IN CONFIRMING THE ADDITION TO THE EXTENT OF RS.69 497/ - AS UNACCOUNTED SONOGRAPHY RECEIPTS. 3.2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E THE LD. CIT(A.) OUGHT NOT TO HAVE CONFIRMED THAT THE APPELLANT HAD NOT FULLY DISCLOSED SONOGRAPHY RECEIPTS ESPECIALLY WITH REGARD TO THE A LLEGED PATIENTS AS PER DHARTI MEDICAL STORES. 3.3. THAT THE OBSERVATIONS MADE AND CONCLUSION REAC HED BY THE CIT(A.) FOR THE PURPOSE OF CONFIRMING THE ADDITION TO THE E XTENT OF RS.69 497/- AS UNACCOUNTED RECEIPTS OF SONOGRAPHY ARE WHOLLY UNJUS TIFIED AND UNWARRANTED. INDOOR RECEIPTS : 4.1. THE LD. CIT(A.) HAS GRIEVOUSLY ERRED IN LAW AN D ON FACTS IN CONFIRMING THE ADDITION TO THE EXTENT OF RS.2 80 10 0/- AS UNACCOUNTED INDOOR RECEIPTS. 4.2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW THE LD. CIT(A.) OUGHT NOT TO HAVE UPHELD THAT THE APPELLANT HAD NOT DISCLOSED FULLY THE INDOOR RECEIPTS. 5.1. THE REVENUE IN ITS APPEAL HAS RAISED THE FOLLO WING GROUNDS :- (1) THE LD. CIT(A.) HAS ERRED IN LAW AND ON THE FAC TS OF THE CASE IN RESTRICTING THE ADDITION OF RS.88 130/- BEING UNACC OUNTED INCOME RELATED TO PATIENTS OF DHARATI MEDICAL STORES TO RS.37 295/ -. (2) THE LD. CIT(A.) HAS ERRED IN LAW AND ON THE FAC TS OF THE CASE IN RESTRICTING THE ADDITION OF RS.1 15 235/- BEING UNA CCOUNTED RECEIPTS FROM SONOGRAPHY TO RS.69 497/-. (3) THE LD. CIT(A.) HAS ERRED IN LAW AND ON THE FAC TS OF THE CASE IN RESTRICTING THE ADDITION OF RS.9 84 259/- MADE BY T HE A.O. ON ACCOUNT OF SUPPRESSION OF INDOOR RECEIPTS TO RS.2 80 100/-. 4 ITA NOS . 2195-AHD-2008 & 2260-AHD-2008 (4) THE LD CIT(A.) HAS ERRED IN LAW AND ON THE FAC TS OF THE CASE IN DELETING THE ADDITION OF RS.2 01 011/- MADE BY THE A.O. ON ACCOUNT OF SUPPRESSION OF INDOOR RECEIPTS. (5) THE LD. CIT(A.) HAS ERRED IN LAW AND ON THE FAC TS OF THE CASE IN DELETING THE ADDITION OF RS.8 181/- MADE ON ACCOUNT OF DIFFERENCE IN THE COST OF CONSTRUCTION OF VATSAYLA HOSPITAL. (6) THE LD. CIT(A.) HAS ERRED IN LAW AND ON THE FAC TS OF THE CASE IN DELETING THE ADDITION OF RS.4 03 184/- MADE ON ACCO UNT OF UNDISCLOSED INCOME. 6. AT THE TIME OF HEARING BEFORE US ON BEHALF OF A SSESSEE SHRI S.N. DIVETIA LD. COUNSEL APPEARED AND CONTENDED THAT GROUND NO. 1 OF ASSESSE ES APPEAL IS GENERAL IN NATURE AND NEEDS NO ADJUDICATION. 7. THE FACTS RELATING TO CONTROVERSY INVOLVED IN GR OUND NO. 2 OF ASSESSEES APPEAL AND GROUND NO. 1 OF REVENUES APPEAL ARE THAT IN THE AS SESSMENT ORDER THE ASSESSING OFFICER MADE ADDITION OF RS.88 130/- ON ACCOUNT OF OPD RECEIPTS BASED ON BILL OF DHARTI MEDICAL STORES WHEREIN NAME OF THE ASSESSEE WAS WRITTEN IN 1904 BI LLS AS REFERRING DOCTOR. ON THIS BASIS THE ASSESSING OFFICER ESTIMATED THE NEW PATIENTS AT 52% ON THE BASIS OF PERCENTAGE OF NEW PATIENTS AS PER BOOKS OF ACCOUNTS. ON APPEAL IN THE IMPUGNE D ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) RESTRICTED THE SAID ADDITION TO RS.37 295/- FOR THE DETAILED REASONS GIVEN IN PARA 4.9 OF THE IMPUGNED ORDER WHICH READS AS UNDE R :- 4.9. I HAVE CONSIDERED THE SUBMISSIONS OF THE A R . CAREFULLY AND THE REMAND REPORT OF THE A.O. AND THE COUNTER REPLY OF THE A.R . I REJECT THE AFFIDAVIT FILED BY THE APPELLANT AND THE AFFIDAVIT FILED BY PROPRIETOR OF DHARTI MEDICAL STORES AS THESE RETRACTIONS ARE NOT SUBSTANTIATED BY ANY REAS ON OR EVIDENCE. AS PER THE 3 C REGISTER MAINTAINED BY THE APPELLANT THE A.O. FOUN D THAT TOTAL PATIENTS EXAMINED BY THE APPELLANT DURING THE YEAR WERE 3929 PATIENTS INCLUDING 1994 OLD OPD PATIENTS AND 2035 NEW OPD PATIENTS. THUS THE NEW O PD PATIENTS FORMED 52% OF TOTAL PATIENTS. ACCORDINGLY HE ADOPTED THE SAID RA TIO FOR THE 1904 PATIENTS FOUND AS PER THE BILLS ISSUED BY M/S. DHARTI MEDICAL SCOR E WHICH HAD NOT BEEN ACCOUNTED BY THE APPELLANT AND HE CALCULATED THE OL D OPD CASES AS 914 AND THE NEW OPD CASES AS 990. (I) ADDITION OF RS.L8.280/- + RS.49 500/- FOR 914 OLD PATIENTS THE CHARGE RECEIVED BY DOCTOR WAS @ RS.20/- PER OLD OPD CASE SO TOTAL AMOUNT NOT ACCOUNTED BY THE APPELLANT WAS CALCULATED AS 914 X 20 = RS.L8 280/- AND FOR 990 NEW PATIENTS THE CHARGE PER PATIENT BEING RS.50/- THE AMOUNT NOT ACCOUNTED WAS CALCULATED AS RS.49 500/- AND ADDITION OF RS.49 500 /-WAS MADE. 5 ITA NOS . 2195-AHD-2008 & 2260-AHD-2008 (II) ADDITION OF RS.20 350/- FOR THE NEW OPD CASES OF 2035 IN NUMBER BASED ON THE 3C REGISTER MAINTAINED BY THE APPELLANT THE A.O WAS OF THE CONCLUSION THAT THE APPELLANT HAS ACCOUNTED RS.40/- AS CONSULT ANCY CHARGES AS AGAINST RS.50/- CHARGED BY HIM THEREFORE HE MADE AN ADDITI ON OF RS.20 350/- (2035 X 10). THE A.R. HAS STRONGLY CONTENDED THAT SOME OF THE PATIENTS' NAMES IN THE BILLS ISSUED BY M/S. DHARTI MEDICAL STORE ARE REPETITIONS AS CAN BE SEEN FROM THE ANNEXURE-A AND THEREFORE ADDITION SHOULD NOT BE MAD E FOR THE ENTIRE NUMBER OF (1904) PATIENTS. IT HAS ALSO BEEN CONTENDED THAT TH ERE WERE THREE OTHER DOCTORS IN THE SAME AREA APART FROM THE APPELLANT THEREFORE THE ENTIRE BILLS OF DHARTI MEDICAL STORES CAN NOT BE PRESUMED LO HAVE BEEN REF ERRED BY THE APPELLANT ALONE AND THEREFORE IT IS THE CONTENTION OF THE A.R . THA T ONLY L/4 LH OF (1904) BILLS SHOULD BE CONSIDERED IN THE HANDS OF THE APPELLANT. I FIND THE CONTENTION OF THE A.R. IS ACCEPTABLE AS THE APPELLANT HAS CLEARLY STATED THAT THERE WERE THREE OTHER DOCTORS IN THE AREA I.E. DR.MUKESHBHAI J SHAH DR. MAHENDRA BHAI S.PATEL & DR. NANDINI WHO ARE SENIOR AND ESTABLISHED DOCTORS CONSIDERIN G THE SAID FACTS AS IT IS QUITE LIKELY THAT M/S.DHARTI MEDICAL STORE HAS NOT MENTIO NED THE NAMES OF THE OTHER DOCTORS AND CONSIDERING THE FACT THAT THERE IS REPE TITION OF NAMES OF THE PATIENTS IT IS REASONABLE TO ESTIMATE THAT 1/4 TH OF 1904 PATIENTS HAS NOT BEEN ACCOUNTED BY THE APPELLANT AND FROM THEM THE RECEIPTS HAVE NOT BEEN ACCOUNTED THEREFORE INSTEAD OF ADDITION OF RS.L8 280/- AND RS.49 500/- I.E. TOT AL RS.67 780/- THE ADDITION IS REDUCED TO 1/4 TH OF THE SAME WHICH COMES TO RS.16 945/- AS AGAINST RS.67 780/- AS REGARDS THE ADDITION OF RS.20 350/- WHICH HAH BEEN MADE ON THE ASSUMPTION THAT RS.50/- WAS COLLECTED PER PATIENT AS AGAINST RS.40/ -RECORDED IN THE REGISTER THE ADDITION IS FOUND TO BE CORRECT THEREFORE THE ADDI TION OF RS.20 350/- IS SUSTAINED INNS THE ADDITION SUSTAINED IS (RS.20 350 + RS.16 9 45) TO RS.37 295/- AS AGAINST RS.88 130/-. AGGRIEVED WITH THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BOTH THE SIDES ARE IN APPEALS BEFORE THE TRIBUNAL. 8. AT THE TIME OF HEARING ON BEHALF OF ASSESSEE SH RI S.N. DIVETIA LD. COUNSEL APPEARED AND CONTENDED THAT THE ENTIRE ADDITION OF RS.88 130/- W AS MADE ON DOUBTS AND SUSPICION THEREFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUG HT TO HAVE DELETED THE ENTIRE ADDITION. 9. ON THE OTHER HAND SHRI DILEEP KUMAR LD. SR. D. R. APPEARING ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE REASONING GIVEN BY THE ASS ESSING OFFICER. HE FURTHER SUBMITTED THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OU GHT TO HAVE CONFIRMED THE ADDITION OF RS.88 130/- MADE BY THE ASSESSING OFFICER. 10. HAVING HEARD BOTH THE SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT IN THE STATEMEN T RECORDED AT THE TIME OF SURVEY PROCEEDINGS UNDER SECTION 133A THE ASSESSEE HAS STATED THAT AB OUT 5% MAY HAVE PURCHASED FROM DHARTI 6 ITA NOS . 2195-AHD-2008 & 2260-AHD-2008 MEDICAL STORES. PRIMA FACIE WE ARE OF THE VIEW THA T NO MEDICAL STORES WILL WRITE THE NAME OF ANY DOCTOR AS REFERRING DOCTOR WITHOUT EXAMINE THE PR ESCRIPTION. AT THE SAME TIME POSSIBILITY OF MENTIONING THE NAME OF THE DOCTOR WITHOUT PRESCRIPT ION CANNOT BE RULED OUT. WE ARE THEREFORE OF THE VIEW THAT IT WILL MEET THE ENDS OF JUSTICE IF T HE ADDITION MADE BY THE ASSESSING OFFICER IS RESTRICTED TO RS.50 000/- AS AGAINST RS.88 130/- MA DE BY THE ASSESSING OFFICER. WE DIRECT THE ASSESSING OFFICER ACCORDINGLY. RESULTANTLY GROUND NO. 2 OF ASSESSEES APPEAL IS REJECTED AND GROUND NO. 1 OF REVENUES APPEAL IS PARTLY ALLOWED. 11. FACTS RELATING TO CONTROVERSY INVOLVED IN GROUN D NO. 3 OF ASSESSEES APPEAL AND GROUND NO. 2 OF REVENUES APPEAL ARE THAT IN THE ASSESSMEN T ORDER THE ASSESSING OFFICER MADE ADDITION OF RS.1 15 235/- ON ACCOUNT OF UNACCOUNTED RECEIPTS SHOWN FROM SONOGRAPHY. IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) RESTRICTED THE SAME TO RS.69 497/- FOR THE DETAILED REASONS GIVEN IN PARA 5.3 TO 5.5 WHIC H READS AS UNDER :- 5 3 I HAVE CONSIDERED THE SUBMISSIONS OF T HE A.R. CAREFULLY. THE FINDINGS ARE GIVEN ON ITEM-WISE ADDITIONS AS UNDER :- ADDITION OF RS.57 000/- CONSIDERING THE SAID SUBMISSIONS AND THE CHART FIL ED AT PAGE 79 OF PAPER BOOK AND CONSIDERING THE FACT THAT (190 4) PATIENTS AS PER THE BILLS OF M/S.DHARTI MEDICAL STORE WOULD NOT HAVE BEEN REFERR ED BY THE APPELLANT DOCTOR ALONE ONLY 1/4 TH OF BILLS CAN BE PRESUMED TO BE PATIENTS REFERRED B Y [HE APPELLANT DOCTOR AND ASSUMING 20% PATIENTS HAVE UNDERGONE SON OGRAPHY TEST I.E. 380 FOR L/4 TH OF 330 CASES I.E. 95 CASES ARE CONSIDERED AS AGAINS T 380 AND CONSIDERING THE AVERAGE AMOUNT OF RS.125/- AS SONOGRAPHY CHARGE PER PATIENT AS IN SOME CASES THE APPELLANT HAS CHARGED RS.100/- AND IN SOME CASES RS.150/- TH E ADDITION IS SUSTAINED FOR 95 PATIENTS @ 125/- AS SONOGRAPHY RECEIPT WHICH COMES TO RS.11 875/- AS AGAINST RS.57 000/-. 5.4. ADDITION OF RS.5L 809/- OUT OF 6 CASES FOR WHICH SONOGRAPHY HAS BEEN CAR RIED OUT OF 15 PATIENTS EXAMINED AS PER PAGE 79 OF PAPER BOOK WHICH IS ANNEXURE-P THE APPELLANT HAS NOT SHOWN RECEIPTS IN RESPECT OF 4 PA TIENTS AND HAS SHOWN RECEIPTS FOR ONLY 2 PATIENTS AS PER ANNEXURE P WHICH SHOWS THAT THE APPELLANT HAS NOT ACCOUNTED FOR 4 PATIENTS OUT OF 6 PATIENTS WHICH COMES TO 66% . THEREFORE THE ADDITION IS REDUCED TO 66% OF RECEIPTS OF RS.59 550/- FROM SONO GRAPHY ACCOUNTED BY THE APPELLANT WHICH COMES TO RS.39 303/- INSTEAD OF RS 51 809/-. SO ADDITION OF RS.5 1 809/- IS REDUCED TO RS.39 303/-. 5.5. ADDITION OF RS.6 426/- THE A.O. OBSERVED THAT THE APPELLANT HAS SHOWN LES S SONOGRAPHY CHARGE @ RS.50/- INSTEAD OF RS.150/- IN 13% OF THE CASES.. AS I HAVE FOUND THAT THE AVERAGE RATE OF SONOGRAPHY CHARGED I S RS.L25/- AND THE APPELLANT HAS SHOWN SONOGRAPHY RECEIPTS IN 2 OUT OF 6 CASES AS PE R ANNEXURE P WHICH COMES TO 33% 33 % OF RECEIPTS OF RS.59 500/- ARE CONSIDERE D AND THE RECEIPTS SHOWN LESS WORK OUT TO RS.19 635/- AS AGAINST WHICH THE APPELL ANT HAS SHOWN RS.1 316/- 7 ITA NOS . 2195-AHD-2008 & 2260-AHD-2008 THEREFORE THE DIFFERENCE OF (RS.19 635/- (-) RS. 1 316/-) WHICH COMES TO RS 18 319/- IS TO BE ADDED AS AGAINST RS.6 426/-. THUS INSTEAD OF THE TOTAL ADDITION OF RS.1 15 235/- AS SONOGRAPHY RECEIPTS UNACCOUNTED THE ADDITION IS SUSTAINED TO THE TUNE OF (RS.11 875/- + RS 39 303/- + RS.18 319/-) = RS.69 4 97/-. AGGRIEVED WITH THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BOTH THE SIDES ARE IN APPEALS BEFORE THE TRIBUNAL. 12. AT THE TIME OF HEARING BEFORE US THE LD. D.R. RELYING ON THE REASONING GIVEN BY THE ASSESSING OFFICER CONTENDED THAT THE ADDITION OF RS .1 15 235/- ON ACCOUNT OF UNACCOUNTED RECEIPTS FROM SONOGRAPHY WAS RIGHTLY MADE BY THE AS SESSING OFFICER AND THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS NOT JUSTIFIE D IN RESTRICTING THE SAME TO RS.69 497/-. THE LD. COUNSEL OF THE ASSESSEE POINTED OUT THAT THE AD DITION TO THE EXTENT OF RS.69 497/- SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS ON THE HIGHER SIDE. 13. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF LEA RNED COMMISSIONER OF INCOME TAX (APPEALS). IN OUR OPINION THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS GIVEN COGENT REASON FOR RESTRICTING THE UNACCOUNTED SONOGRAPHY R ECEIPTS AMOUNTING TO RS.69 497/-. WE THEREFORE INCLINE TO UPHOLD THE ORDER OF LEARNED C OMMISSIONER OF INCOME TAX (APPEALS). RESULTANTLY GROUND NO. 3 OF ASSESSEES APPEAL AND GROUND NO. 2 OF REVENUES APPEAL ARE DISMISSED. 14. FACTS RELATING TO CONTROVERSY INVOLVED IN GROUN D NO. 4 OF ASSESSEES APPEAL AND GROUNDS NO. 3 & 4 OF REVENUES APPEAL ARE THAT IN THE ASSES SMENT ORDER THE ASSESSING OFFICER MADE ADDITION OF RS.2 80 100/- ON ACCOUNT OF UNACCOUNTED INDOOR RECEIPTS. IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) RESTRI CTED THE SAME TO RS.2 01 011/- FOR THE REASONS GIVEN IN PARA 6.3 BY MENTIONING THAT THE AR HAS CONTENTED THAT THE AR HAS CALCULATED 29% AS EXCESS FEES DECLARED BY THE ASSESSEE MORE TH AN WHAT HAS BEEN STATED BY THE PATIENTS. AS THE ASSESSEE HAS DISCLOSED HIGHER RECEIPTS THAN WHA T HAS BEEN STATED BY THE PATIENTS THERE IS NO NEED FOR MAKING FURTHER ADDITION THEREFORE THIS A DDITION AS HELD IS NOT JUSTIFIED AND DELETED THE SAME. AGGRIEVED WITH THE ORDER OF LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) BOTH SIDES ARE IN APPEALS BEFORE THE TRIBUNAL. 8 ITA NOS . 2195-AHD-2008 & 2260-AHD-2008 15. WE HAVE HEARD BOTH THE SIDES. IT IS PERTINENT T O NOTE THAT THE ESTIMATE MADE BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS FAI R AND REASONABLE. WE THEREFORE INCLINE TO UPHOLD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS). RESULTANTLY GROUND NO. 4 OF ASSESSEES APPEAL AND GROUNDS NO 3 & 4 OF REVENU ES APPEAL ARE DISMISSED. 16. IN GROUND NO. 5 OF REVENUES APPEAL IS AGAINST ADDITION FOR COST OF CONSTRUCTION OF VATSALYA HOSPITAL AMOUNTING TO RS.8 181/-. DURING T HE COURSE OF SURVEY PROCEEDINGS THE ASSESSEE HAS VOLUNTARILY DISCLOSED RS.18 LAKHS FOR UNDISCLOSED INCOME IN RESPECT OF RESIDENTIAL BUNGALOW VATSALYA HOSPITAL & FIXED DEPOSITS INVEST MENT BY STATING THAT ALL THE PROPERTIES HAVE BEEN MADE FROM HIS OWN INCOME WHICH HE RETRACTED A LMOST AFTER ONE YEAR BY STATING THAT ALL THESE PROPERTIES BELONGS TO HIS WIFE SMT. PRERNA M. SHAH WHO IS ONLY A SALARIED PERSON OF VATSALYA HOSPITAL. THE ASSESSING OFFICER OBSERVED T HAT THERE WAS DIFFERENT IN COST OF CONSTRUCTION OF VATSALYA HOSPITAL BUILDING ON THE B ASIS OF DVOS REPORT. THE DVO HAS ESTIMATED THE COST OF CONSTRUCTION OF BUILDING AT RS.31 532/- FOR THE YEAR UNDER CONSIDERATION AGAINST DECLARED COST OF CONSTRUCTION OF RS.23 451/- THERE FORE THERE WAS DIFFERENCE IN COST OF CONSTRUCTION OF RS.8 181/-. THE ASSESSING OFFICER T REATED THE SAME AS UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE INCOME TAX ACT 1961. 16.1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) DELETED THE AFORESAID ADDITION BY OBSERVING IN PARA 7.2 OF HIS IMPUGNED ORDER AS UNDE R :- I HAVE CONSIDERED THE SUBMISSIONS OF THE A.R. CARE FULLY. AS REGARDS THE CONSIDERATION OF UNEXPLAINED INVESTMENT THE WIFE O F THE APPELLANT HAS SHOWN THE SAME IN THE BOOKS OF ACCOUNTS MAINTAINED BY HER SO THE PROPERTY VATSALYA HOSPITAL SHOULD BE CONSIDERED IN THE HANDS OF HIS W IFE. FURTHER SHE HAS SHOWN COST OF CONSTRUCTION AT THE AVERAGE RATE OF RS.2 65 0/- PER SQ. METRE WHICH IS COMPARABLE WITH THE STATE GOVERNMENT RATE. AS COMPA RED TO RS.2 650/- PER SQ. METRE THE DVO HAS ADOPTED THE RATE OF RS.3 442/- P ER SQ. METRE AS CPWD RATES APPLICABLE TO DELHI AND HE HAS NOT MADE ANY ADJUSTM ENT IN RATES FOR CONSTRUCTION IN HIMATNAGAR DISTRICT WHERE LABOUR IS CHEAP AND QU ALITY OF CONSTRUCTION IS LOWER. IN VIEW OF THE ABOVE FACTS AND SUBMISSIONS THE ADDITION MADE BY THE A.O. WHICH HAS BEEN MADE WITHOUT ANY MATERIAL EVIDENCE A ND WITHOUT POINTING DEFECTS FROM THE VOUCHERS AND BOOKS OF ACCOUNTS MAINTAINED BY THE APPELLANT CANNOT BE SUSTAINED AND THE SAME IS THEREFORE DELETED. THE A DDITION IS DELETED FOLLOWING MY FINDING IN AY 2003-04 IN THE CASE OF THE APPELLANT VIDE ORDER DATED 31.03.2008. 9 ITA NOS . 2195-AHD-2008 & 2260-AHD-2008 17. AT THE TIME OF HEARING BEFORE US THE LD. D.R. RELYING ON THE REASONING GIVEN BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER CONTENDED THAT THE ADDITION WAS RIGHTLY MADE AND THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS NOT JUSTIFIED IN DELETING THE SAME. IN OUR OPINION AFTER CONSIDERING ALL THE RELEVANT FACTORS IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE AD DITION. WE THEREFORE INCLINE TO UPHOLD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (AP PEALS). RESULTANTLY GROUND NO. 5 OF REVENUES APPEAL IS REJECTED. 18. GROUND NO. 6 OF REVENUES APPEAL IS AGAINST ADD ITION ON ACCOUNT OF UNDISCLOSED INCOME OF RS.4 03 184/-. THE ASSESSING OFFICER IN HIS ASSE SSMENT ORDER OBSERVED THAT ADDITIONS HAVE BEEN MADE IN THE ASSESSMENT AS UNDISCLOSED INCOME T O THE TUNE OF RS.13 96 816/- AND THE ASSESSEE HAD DISCLOSED AN AMOUNT OF RS.18 LAKHS AS UNDISCLOSED INCOME AT THE TIME OF SURVEY HENCE FOR THE BALANCE AMOUNT OF RS.4 03 184/- THE ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF UNDISCLOSED INCOME ON THE GROUND THAT THE ASSESS EE HAS NOT OFFERED ANY SATISFACTORY EXPLANATION ABOUT THE SOURCE AND NATURE OF INVESTME NT. 19. ON APPEAL IN THE IMPUGNED ORDER THE LEARNED C OMMISSIONER OF INCOME TAX (APPEALS) DELETED THE SAME FOR THE DETAILED REASONS GIVEN IN PARA 8.2 WHICH READS AS UNDER :- 8.2. I HAVE CONSIDERED THE SUBMISSIONS OF THE AR C AREFULLY. THE AR HAS CONTENDED THAT FOR THIS ADDITION THERE IS NO EVIDE NCE WITH THE A.O. AND THE A.O. HAS MADE ADDITION SIMPLY ON THE BASIS OF STATEMENT RECORDED AT THE TIME OF SURVEY WHICH HAS BEEN RETRACTED BY THE APPELLANT. THE AR H AS ALSO REFERRED TO THE DECISION IN THE CASE OF ASHOK MANILAL THAKKAR VS.- ACIT REPORTED IN 97 ITD 361 (AHD) WHEREIN IT HAS BEEN HELD AS UNDER :- THUS IT CANNOT BE SAID THAT ONLY ON THE BASIS OF STATEMENT GIVEN BY THE ASSESSEE THE DISCLOSED INCOME WAS ASSE SSABLE AS LAWFUL INCOME OF THE ASSESSEE. THERE BEING NO EVIDE NCE/ MATERIAL AVAILABLE ON RECORD TO PROVE THE EXISTENCE OF SUCH DISCLOSED INCOME OR EARNING OF SUCH INCOME IN THE H ANDS OF ASSESSEE IT CANNOT BE SAID THAT THE TAX WAS LAWFUL LY PAYABLE BY ASSESSEE IN HIS HAND ON THE DISCLOSED INCOME. FURTHER IN THE CASE OF SMT. RANJANABEN MANSUKHLAL SHAH VS.- ACIT REPORTED IN 83 TTJ 369 (RAJKOT) IT HAS BEEN HELD THAT ADDITION MADE ONLY ON THE BASIS OF DISCLOSURE STATEMENT NORMALLY SHOULD NOT BE CONFIRM ED IN ABSENCE OF CORROBORATION. RELYING ON THE ABOVE CASE LAWS AND S UBMISSIONS OF THE AR AND CONSIDERING THE FACTS OF THE CASE AS THE ADDITION IS NOT SUPPORTED BY ANY MATERIAL 10 ITA NOS . 2195-AHD-2008 & 2260-AHD-2008 OR EVIDENCE THE ADDITION OF RS.4 03 184/- IS HELD TO BE NOT JUSTIFIED AND SAME IS DELETED. 20. WE HAVE HEARD BOTH THE SIDES. IT IS PERTINENT T O NOTE THAT IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS MADE VARIOUS ADDITIONS ON THE BASIS OF EVIDENCES ETC. FOUND AT THE TIME OF SURVEY PROCEEDINGS UNDER SECTION 133 OF THE INCOME TAX ACT 1961. HAVING MADE THE ADDITIONS IN RESPECT OF VARIOUS ITEMS IN OUR OPINION THERE WAS NO NECESSITY FOR MAKING SEPARATE ADDITION OF RS.4 03 184/-. WE THEREFORE DECLINE TO INTERFERE. RESULTANTLY GROUND NO. 6 OF REVENUES APPEAL IS REJECTED. 21. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AND THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED AS INDICATED ABOVE. THE ORDER WAS PRONOUNCED IN THE COURT ON 31.01.201 1 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 31/ 01 / 2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A.) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR ITAT AHMEDABAD LAHA/SR.P.S.