M/s Bidar CT Scan Centre, Bidar v. Asst.C.I.T., Kalaburagi

ITA 53/BANG/2016 | 2012-2013
Pronouncement Date: 30-09-2016 | Result: Partly Allowed

Appeal Details

RSA Number 5321114 RSA 2016
Assessee PAN AAHFB8302R
Bench Bangalore
Appeal Number ITA 53/BANG/2016
Duration Of Justice 8 month(s) 9 day(s)
Appellant M/s Bidar CT Scan Centre, Bidar
Respondent Asst.C.I.T., Kalaburagi
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 30-09-2016
Assessment Year 2012-2013
Appeal Filed On 21-01-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C BEFORE SHRI A .K. GARODIA ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO JUDICIAL MEMBER I.T.A. NO. 53 /BANG/201 6 (ASSESSMENT YEAR : 20 12 - 13 ) M/S. BIDAR CT SCAN CENTRE 8 - 10 - 57 58 & 59 AKKAMAHADE VI COLONY BIDAR - 585 401 PAN AAHFB 8302R VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE 1 KALABURAGI KARNATAKA. APPELLANT RESPONDENT. APPELLANT BY : SHRI GVVS MURTHY ADVOCATE. RESPONDENT BY : SHRI S. SUNDAR RAJAN JCIT (D.R) DATE OF H EARI NG : 7.9. 2016. DATE OF P RONOUNCEMENT : 30 .09. 201 6 . O R D E R PER SHRI VIJAY P AL RAO J. M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DT.9.11.2015 OF COMMISSIONER OF INCOME TAX (APPEALS) GULBARGA FOR THE ASSESSMENT YEAR 2012 - 13. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS : 2 ITA NO S . 53 /BANG/ 201 6 3. AT THE TIME OF HEARING THE LEARNED AUTHORISED REPR ESENTATIVE OF THE ASSESSEE HAS STATED THAT THE ASSESSEE DOES NOT PRESS GROUND NO.7 AND SAME MAY BE DISMISSED AS NOT PR E SSED. THE LD. DR HAS NO OBJECTION IN DISMISSING THE GROUND. THE GROUND NO.7 IS DISMISSED AS PRAYED. 3 ITA NO S . 53 /BANG/ 201 6 4. GROUND NOS.1 TO 6 ARE RELATI NG TO DISALLOWANCE OF DEDUCTION UNDER SECTION 80 IB(11C) OF THE INCOME TAX ACT 1961 (IN SHORT 'THE ACT') . 5. THE ASSESSEE IS A PARTNERSHIP FIRM AND CARRIED OUT ACTIVITIES RELATING TO MEDICAL PROFESSION IN THE NAME AND STYLE OF M/S. BIDAR CITY SCAN CEN TRE. A SURVEY OPERATION UNDER SECTION 133 A OF THE ACT WAS CARRIED OUT ON 19.3.2012 IN THE BUSINESS PREMISES OF THE ASSESSEE. DURING THE COURSE OF SURVEY PROCEEDINGS THE STATEMENT OF DR. RAJSEKHAR SEDAMKAR PARTNER OF THE FIRM WAS RECORDED. IN HIS STATEM ENT AN INCOME OF RS.52 26 000 WAS DISCLOSED ON ACCOUNT OF OUTPATIENT CHARGES FEES COLLECTED. SUBSEQUENTLY THE ASSESSEE FILED RETURN OF INCOME ON 28.9.2012 ADMITTING TAXABLE INCOME AT NIL. AFTER CLAIMING THE DEDUCTION UNDER SECTION 80 IB(11C) THE ASSESS ING OFFICER DENIED THE CLAIM OF DEDUCTION ON THE AMOUNT OF RS.52 26 000 ON THE GROUND THAT THE SAID INCOME WAS ADMITTED AS UN ACCOUNTED INCOME AND VOLUNTARILY ADMITTED BY THE ASSESSEE OVER AND ABOVE THE REGULAR INCOME. THEREFORE THE ASSESSING OFFICER WAS OF THE VIEW THAT THE SAID ADDITION OF RS.52 26 000 IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80 IB (11C) OF THE ACT. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER BEFORE THE CIT (APPEALS) BUT COULD NOT SUCCEED. 4 ITA NO S . 53 /BANG/ 201 6 6. BEFORE US THE LEARN ED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS SUBMITTED THAT THE SAID INCOME ADMITTED BY THE ASSESSEE DURING THE CO URSE OF SURVEY WAS FROM THE OUT - PATIENTS RECEIPTS AND FEES AND THEREFORE WHEN THE ASSESSEE IS ENTITLED FOR THE DEDUCTION UNDER SECTION 80 IB (11C) OF THE ACT THEN THE SAID INCOME IS ALSO ELIGIBLE FOR DEDUCTION. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE FOLLOWING DECISIONS : A) ITA NO.7398/MUM/2010 DT.25.11.2014 (ITO VS. VANDANA PROPERTIES) (MUM - TRIBUNAL) B) CIT VS. RAM GOPAL MANDA ( 203) 35 TAXMANN.COM 229 (RAJ.) HE HAS FURTHER SUBMITTED THAT EVEN FOR THE ASSESSMENT YEAR 2013 - 14 THE ASSESSING OFFICER HAS ALLOWED THE DEDUCTION UNDER SECTION 80 IB (11C) OF THE ACT TO THE ASSESSEE AND THEREFORE THERE IS NO DISPUTE REGARDING THE ELIGIBI LITY OF DEDUCTION IN RESPECT OF INCOME FROM OPERATING AND MAINTAINING THE HOSPITAL. 7. ON THE OTHER HAND THE LD. DR HAS HEAVILY RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT BUT FOR THE SURVEY CARRIED OUT AT THE BUSINESS PREMISE S OF THE ASSESSEE THIS INCOME COULD NOT HAVE BEEN DISCLOSED BY THE ASSESSEE. SINCE THIS INCOME WAS NOT RECORDED IN THE BOOKS OF ACCOUNT THEREFORE THE ADDITION MADE BY THE ASSESSING OFFICER AS UNDISCLOSED INCOME 5 ITA NO S . 53 /BANG/ 201 6 DETECTED DURING THE SURVEY IS NOT ELIGIBLE FOR DEDUCTION UNDER SEC TION 80 IB (11C) OF THE ACT. IT IS SUBMITTED THAT THE ADDITION MADE UNDER THOSE PROVISIONS AR E SPECIFICALLY EXCLUDED FROM THE BENEFIT OF DEDUCTION. THUS THE LD. DR HAS SUBMITTED THAT IN THIS CASE WHEN THIS INCOME WAS NOT RECORDED I N THE BOOKS OF ACCOUNT THEN THE SAME IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80 IB (11C) OF THE ACT. 8. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND RELEVANT MATERIAL ON RECORD WE NOTE THAT A SURVEY WAS CARRIED OUT ON 19.3.2012 PRIOR TO THE CLOSIN G OF THE F.Y. RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. IN THE STATEMENT RECORDED DURING THE SURVEY THE PARTNER OF THE ASSESSEE - FIRM ADMITTED AN INCOME OF RS.52 26 000 OUT OF THE BOOKS OF ACCOUNT BUT ON THE ACCOUNT OF OUTPATIENT CHARGES AND FE ES COLLECTED. THE ASSESSEE ACCORDINGLY ADMITTED THE SAID INCOME IN THE RETURN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION AND CLAIMED THE DEDUCTION UNDER SECTION 80 IB (11C) OF THE ACT. THERE IS NO DISPUTE THAT THE INCOME WAS DISCLOSED IN THE RETURN OF INCOME AND THE DEDUCTION WAS ALSO CLAIMED IN THE RETURN OF INCOME. THE ASSESSING OFFICER HAS ACCEPTED THE SAID INCOME OF RS.52 26 000 THOUGH IT WAS TREATED AS UNDISCLOSED INCOME. WE FIND THAT THE ASSESSING OFFICER HAS NOT DISPUTED THE FACT THAT THE ADDITIONAL 6 ITA NO S . 53 /BANG/ 201 6 INCOME DISCLOSED BY THE ASSESSEE DURING THE SURVEY PER TAINS TO THE RECEIPTS FROM OUT - DOOR PATIENT. THEREFORE ONCE THE ASSESSING OFFICER HAS ACCEPTED THE SOURCE OF INCOME FROM THE OPERATION OF THE HOSPITAL THEN THE DEDUCTION UNDER SECTION 80 IB (11C) OF THE ACT CANNOT BE DENIED ON SUCH INCOME MERELY BECAUSE AT THE TIME OF SURVEY THIS INCOME WAS NOT FOUND RECORDED IN THE BOOKS OF ACCOUNT. IT IS PERTAINING TO NOTE THAT WHEN THE SURVEY WAS CONDUCTED PRIOR TO THE CLOSURE OF THE F.Y. AND SUBSEQUENT LY THE ASSESSEE HAS ADMITTED THE INCOME IN THE RETURN OF INCOME THEN THE DEDUCTION UNDER SECTION 80 IB (11C) OF THE ACT CANNOT BE DENIED ON SUCH INCOME ONCE THE SOURCE OF THE INCOME IS FROM OPERATION OF HOSPITAL. HOWEVER WE FIND THAT NEITHER THE ASSESSING OFFICER NOR THE CIT (APPEALS) HAS EXAMINED THE ELIGIBILITY OF THE ASSESSEE OF DEDUCTION UNDER SECTION 80 IB (11C) OF THE ACT BY CONSIDERING THE VARIOUS CONDITIONS AS PROVIDED UNDER THE SECTION. THEREFORE FULFILLING OF O THE R CONDITION S AS PROVIDED UNDER SECTION 80 IB (11C) OF THE ACT HAS NOT BEEN EXAMINED BY THE AUTHORITIES BELOW. ACCORDINGLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE SET ASIDE THIS ISSUE TO THE RECORD OF THE ASSESSING OFFICER FOR LIMITED PURPOSE OF VERIFYING THE FACT WHETHER THE AS SESSEE HAS OTHERWISE SATISFIED THE CONDITION OF SECTION 7 ITA NO S . 53 /BANG/ 201 6 80 IB (11C) OF THE ACT FOR THE CLAIM OF DEDUCTION. NEEDLESS TO SAY THE ASSESSEE BE GIVEN A PROPER OPPORTUNITY OF BEING HEARD. 9. IN THE RESULT THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPO SE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPT. 201 6 . SD/ - (A .K. GARODIA ) ACCOUNTANT MEMBER SD/ - (VIJAY PAL RAO) JUDICIAL M EMBER *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR ITAT BANGALORE. 6. GUARD FILE. BY ORDER ASST. REGISTRAR ITAT BANGALORE