TaxTMI 
TaxTMI 
2016 (11) TMI 384
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....rst, we shall take ITA No. 7617/Mum/2013 for the assessment year 2002-03. 2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income Tax Appellate Tribunal, Mumbai (hereinafter called "the Tribunal") read as under:- "1. On the facts and in the circumstances of the case and in law the CIT (A) was not justified in allowing the claim of the appellant in respect of double addition made by the Assessing Officer to the extent of Rs. 7,56,955/- and Rs. 8,15,800/- amounting to Rs. 15,72,755/- only. 2. The appellant submits that the CIT(A) ought to have allowed relief in respect of the entire addition amounting to Rs. 27,91,810/- looking to the fact that the Assessing Officer has in the remand proceedings accepted the claim of double addition of the entire amount confirming that the "the total amount received by each has been shown in their return of income in the relevant year." 3. The appellant submits that having produced some patients even after a period of 10 years the Assessing Officer has not brought any material on record to show any error in the receipts maintained and declared by the appellant nor established that the appellant has rece....
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....amounts have been found to have come within the range of fees referred by the assessee in the book "How to have a Baby - Overcoming infertility" which book was authored by the assessee and her husband Dr. Aniruddha Malpani. It is mentioned in the book that the range of fees referred to in the chart are approximate costs for procedure , tests and treatments . Comparative rates were also obtained from the leading practitioners in the same field. The argument of the assessee that the amount written on the back of the receipt is the actual fees received by the all the three entities were accepted wherever these amounts have been found to be within the range of fees referred to by the assessee. It is the argument of the assessee that if the amount written at the back of receipt is taken as the actual receipt of fees in the hands of each of the three entities , it will lead to absurd situation according to rate card. The AO gave benefit of doubt in these cases. However, where they are coming within range of fees as given in the book, the argument of the assessee that she has received a lesser amount of fees was not accepted by the AO. For example, vide receipt no. 1402 dated 30-06-2001 ,....
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.... of Rs. 27,91,810/- which was added by the A.O. to the total income of the assessee as undisclosed income of the assessee , after rejecting books of accounts of the assessee vide assessment order dated 31-01-2005 passed by the AO u/s 143(3) of the Act. The assessment order dated 31-01-2005 was confirmed by learned CIT(A) wherein he upheld the action of AO in first round of litigation vide appellate orders dated 17-10-2005 passed by ld. CIT(A) . On appeal to the Tribunal in first round of litigation, the Tribunal set aside the matter in ITA No. 7546/Mum/2005 for the assessment year 2002-03 in the case of the assessee vide orders dated 30th July, 2008 by holding as under:- "11. We have considered the submissions made by both the parties, material on record and orders of the authorities below. It is noted that both the assessees are qualified Doctors in their individual capacity and they are also partners in one Partnership Firm that provides the infrastructure and the facilities for the treatment of the patients. It is also noted that in the cases of operation, the assessee avails the services of Anesthetist and the difference in the range of Rs. 1,000/- to 4,000/- in the amount r....
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....t of 127 cases could not be furnished to the AO for the reason that the receipts / vouchers were not with the assessee. Because the assessee could have reconciled the amounts in the intervening period. This contention is also not acceptable for the reason that in the Medical Profession, elaborate records are maintained in respect of patients which contain addresses, other particulars, treatment given to such patients, hence, this conduct of the assessee indicates that there is something to hide. At the same time, we find that the AO has also not mentioned instances of comparative cases neither in the assessment order nor in the remand proceedings. It is also noted that in the 2nd remand proceedings, the Ld.CIT(A) has specifically asked the AO to make necessary verification in respect of 55 patients whose particulars had been given to the AO and give report on the results thereof. However, the AO in the remand report has merely reported that it was an after-thought, hence, there is certainly non-compliance of the directions issued by the Ld.CIT(A), and, therefore, in respect of these 55 patients addition is apparently unjustified. We also find that the Ld.CIT(A) has also accepted th....
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....ndergone treatment in F/Ys 2001-02. Confirmation of amount paid towards treatment Rs. 1,25,000/-. (copy of receipts disposed off) 2 Suruchi A Choksi served Undergone treatment in F/Ys 2001-02. Confirmation of amount paid to .. Dr. Aniruddha Malpani- Rs. 8,000/- Dr. Anjali Malpani- Rs. 8,000/- 3 Lata Radhakrishnan Served Undergone treatment in F/Ys 2001-02. Confirmation of amount paid to .. Dr. Aniruddha Malpani- Rs. 7,200/-. Dr. Anjali Malpani- Rs. 7,200/- Amount in Malpani Infertility clinic - Rs. 19,360/-. 4 Jayshree M/ Shah unserved Unclaimed 5 Madhumati H unserved Not known 6 Niti S. Sharma unserved Addressee left 7 Pallavi Jain unserved Not known 8 Pramilas Jain unserved Inspectors report 9 Falguni K. Salija unserved Inspectors report 10 Harshita N. Thakar unserved Undergone treatment in F/Ys 2001-02. Amount paid and made of payment could not be remembered 11 Palavi S. Jhingrani unserved Unclaimed 12 Sangeeta Lahate unserved Not known 13 Manju M. Jain served No reply from party, assessee directly brought confirmation 14 Naffesa B....
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....er the inspectors report he had visited the location Nivesia Road, and could not find the building "Prathiba". The building actually stands on A K Vaidya Rood, and not on Nevesia Road. A photograph of the building is attached. However inquiries revealed that she has shifted out from this place and had present whereabouts are not known. f) Falguni Saluja - the inspector could not find the location at the address given. g) Pallavi Jingrani - the summons could not be served. Inquiries revealed that the flat has been rented in the patient has shifted to Hyderabad. However the photograph of the nameplate in the building revealed the name of Mr. Sunil Jingrani her husband and therefore the claim of the appellant stands fortified that she did in fact live there. h) Sangeeta Lohate - the summons could not be served. Inquiries revealed that she had shifted residence and after contacting her at the new residence, the appellant had been able to obtain a confirmation from her. The same is attached herewith. The new address of the patient is as follows:- 204, second floor, Rashmi Avenue Cooperative Housing Society Ltd. Kandivali East, Mumbai. i) Nafissa Begum - inquiries revealed th....
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....1.2013 Mrs. Geetanjali B. Vyas held that since the details called for pertain to matter more than 10 years, she is not in a position to trace any records. Vide noting dated 25.4.2013 and 2.5.2013 assessee was granted opportunity to provide further submission or produce parties in order to prove the claim. Since no further submission or parties have been produced, it is submitted that the issue may be decided on merits. As far as double addition is concerned, assessee produced the chart showing how receipts have been distributed among Aniruddha N. Malpani, Anjali A. Malpani and Malpani Infertility Clinic/MNH. It is seen that total amount received by each has been shown in their return of income in relevant financial years. Moreover many of the entries in chart were reconciled on test check basis with the bill/receipt books impounded during survey. It was found that amount which has been written behind the receipt is the cumulative figure which has been further distributed among Aniruddha Malpani, Anjali Malpani & Malpani Infertility clinic and same amount is getting reflected in receipts in their name. Hence the some may be decided on merits." Against the above remand re....
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....esidence as there is no such provision in income tax act requiring the same. If a patient does not give the correct address in order to hide her identity looking to the fact that the nature of treatment she has come for is not only sensitive and highly confidential, the burden should not be shifted to the assessee to produce the patient for examination. Further many patients come from outstation cities and have a temporary place of residence in Mumbai which is the only address available with the assessee. In fact there is no reason for the assessee to maintain addresses of the patient because the assessee does not need to contact them any time and on the contrary they have to contact the doctors in case they have any further consultation to do. (g) The appellant has relied upon the following decisions: 1. 87 ITD 69 (Mum) (TM) Kumar Agencies 2. C1T v . Calcutta Discount Co. Ltd. [1973]91 ITR 8 (SC) 3. Marghabai Kishabai Patel & Co. v. CIT [1977] 108 ITR 54 (Guj) (h) The appellant has objected to relying upon the rate list published in his book, on the grounds, that the same was only indicative." The assessee also filed before learned CIT(A) a comp....
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....learned CIT(A) gave relief of Rs. 7,56,955/- to the assessee being 50% of the double addition w.r.t. 77 patients. It was further observed by learned CIT(A) that the Tribunal has given direction to afford opportunity to the assessee to reconcile the differences between the rate list and the amounts charged in the receipts. The learned CIT(A) observed that the assessee had filed a complete reconciliation chart with addresses and reasons for differences. The AO observed to the said reconciliation chat as under : "Moreover many of the entries in the chart were reconciled on test check basis with the bill/receipt books impounded during the survey . It was found that amounts which has been written behind the receipt is the cumulative figure which has been further distributed among Aniruddha Malpani, Anjali Malpani & Malpani infertility clinic and same amount is getting reflected in receipts in their name. Hence the same may be decided on merits." The assessee filed three charts to reconcile the differences. The first chart comprises double additions. Second chart comprises the cases where the amount credited to the books is more than the rate list. The third list shows list of t....
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....gation. 5. The ld. Counsel for the assessee submitted that there is no discrepancy in the amount recorded behind the receipt book and the amount recorded in the books of account as the said amount represented consolidated amount received which has been accounted for in the books of accounts of four entities namely the assessee, assessee's husband Dr Aniruddha Malpani, Malpani Fertility Clinic and anesthetist . The ld. Counsel for the assessee submitted that the assessee and her husband are Doctors being infertility specialists. There was a survey u/s 133 A of the Act conducted by the Revenue on 17.01.2002 in the premises of the assessee. No incriminating material was found and seized. No statement was recorded by the Revenue. The ld. Counsel submitted that the books of account were produced before the Revenue during the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act. The receipts books were produced during the course of assessment proceedings which were impounded by the AO on 21.12.2004 during the course of assessment proceedings on the grounds that the amount inscribed at the back of the receipt is not tallying with books of accounts while the f....
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....a as well outside India. The assessee did not know them and keep their details in normal course of business without verifying their details.The treatment of curing infertility is also confidential and sensitive and some time patients does not reveal their true details and there is no mechanism available with the assessee to verify their details and also there is no requirement under law also to do so. The said patients who come from outside Mumbai have their temporary addresses in Mumbai while getting treatment from the assessee and thereafter they move to their places. Many patients with the lapse of time had changed their addresses in this interim period and it is virtually now impossible for both Revenue and the assessee to trace them to get their confirmation / verification of fees paid. It was submitted that an honest attempt was made by the assesssee to seek confirmations from the patients which is borne out from the records. The Tribunal directed to get confirmations from the patients and also to reconcile the fee as stated at the back of receipt book and books of accounts of all the four entities for which the consolidated fees was received by the assessee. It is submitted ....
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....d a detailed reconciliation chart which is placed in the file. It is also the say of the Revenue that the assessee has charged lower amount of fees from patients as compared to the rate list in the book "How to have a Baby - Overcoming infertility" which book was authored by the assessee and her husband Dr. Aniruddha Malpani and hence to that extent income has not been recorded in the books of accounts and hence the undisclosed income which is brought to tax as confirmed by learned CIT(A). Now this is the second round of litigation before the Tribunal. The Tribunal in first round of litigation has , inter-alia, directed to get these amounts confirmed/verified from patients. The Revenue and the assessee both made an attempt to get the amount confirmed but the same could not be confirmed from all the patients as the patients after a long gap of period are now not available/traceable. The patients from whom confirmation was received confirmed the amount which is recorded in books of accounts by these four entities and nothing incriminating has come on record as their confirmation did not reflect any discrepancies in the amount paid by them and the amounts recorded in the books of acco....
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....s sustained by us within 60 days of the receipt of this order. We order accordingly. ITA No. 7618/Mum/2013 for the assessment year 2002-03. 8. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income Tax Appellate Tribunal, Mumbai (hereinafter called "the Tribunal") read as under:- "1. On the facts and in the circumstances of the case and in law the CIT (A) was not justified in allowing the claim of the appellant in respect of double addition made by the Assessing Officer to the extent of Rs. 7,56,955/- and Rs. 76,400/- amounting to Rs. 8,33,355/- only. 2. The appellant submits that the CIT(A) ought to have allowed relief in respect of the entire addition amounting to Rs. 17,56,110/- looking to the fact that the Assessing Officer has in the remand proceedings accepted the claim of double addition of the entire amount confirming that the "the total amount received by each has been shown in their return of income in the relevant year." 3. The appellant submits that having produced some patients even after' a period of 10 years the Assessing Officer has not brought any material on record to show any error in the receipts maintained an....