Commissioner Of Income Tax, Bikaner v. M/S. Chalana Hospital & Research Centre D.b. Income Tax Appeal

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR :: JUDGMENT Commissioner of Income Tax, Bikaner. Vs.M/s. Chalana Hospital & Research Centre D.B. Income Tax Appeal No.30/2009against the judgment dated 20.8.2008passed by the Income Tax AppellateTribunal, Jodhpur Bench Jodhpur in ITANo.584/JU/2005 for the Assessment Year2003-04. Date of judgment ::14.1.2011 PRESENTHON'BLE THE CHIEF JUSTICE SH. ARUN MISHRA'HONBLE JUSTICE SH. PRAKASH TATIA. Mr. KK Bissa, for the appellant. [Per Hon'ble Tatia, J.] <><><> The appellant has challenged the order dated20.8.2008 passed by the Income Tax Appellate Tribunal,Jodhpur Bench, Jodhpur whereby the appeal of theappellant was dismissed, which was preferred to challengethe order dated 29.8.2006 passed by the CIT(A)-II, Bikanerin relation to the assessment year 2003-04 for therespondent-assessee as CIT (A)-II, Bikaner partly allowedthe assessee's appeal. According to the appellant, the assessee submitted itsreturn of Income Tax at NIL income alongwith C/Funabsorbed depreciation of Rs.38,06,296/-. Theassessment under Section 143(3) was completed on24.3.2006 at income of Rs.4,98,415/- after adjusting unabsorbed depreciation of Rs.38,06,296/-. The AO madevarious additions, details of which are given in para no.1 ofthe appeal in total Rs.43,04,711/-. The said assessmentorder dated 24.3.2006 was challenged by the assessee inappeal before the Commissioner of Income Tax (Appeals),Bikaner. The CIT (Appeals) vide order dated 29.8.2006allowed the appeal of the assessee and deleted theadditions made by the AO of Rs.40,07,711/-. The appellantbeing aggrieved preferred further appeal before the IncomeTax Appellate Tribunal, Jodhpur Bench, Jodhpur, but theappellant's said appeal was dismissed by the tribunal videorder dated 20.8.2008, hence, this appeal has beenpreferred by the department under Section 260A of theIncome Tax Act, 1961 to challenge the above 2 orders. Learned counsel for the appellant submitted that thetribunal grossly erred in dismissing the appeal. We considered the submissions of learned counsel forthe appellant and are of the considered view that CIT(Appeal) and the tribunal after considering the factualaspect of the matter regarding addition of Rs.35,97,002/-made by the AO on account of receipts from OT chargesobserved that “...the issue of estimation of OT charges, it isundisputed fact that the Doctors of the assessee havecategorically observed in the statement before theAssessing Officer that the expenditure incurred by thehospital out of collection of operation theatre expenses will be around 10-15%...” After examining the factual aspect,the tribunal came to the conclusion that assessing authorityhas taken the average of these two percentages but appliedthe wrong amount of operation theatre expenses claimed bythe assessee at Rs.7,36,664/-, and the opening stock ofoperation theatre, medicines as well as closing stock of thesame are necessarily to be taken into account for arriving atthe net amount of OT expenses incurred by the assesseeduring the year under consideration. It will be worthwhileto mention here that the assessee has shown the OTreceipts of much more than the amount of Rs.38,27,182/-and in view of the above fact and after appreciation of theevidence, the contention of the appellant was rejected. We are of the considered view that the present appealinvolves no question of law and the finding given by the CIT(Appeals) and the order passed by the Tribunal are basedon evidence and involves question of fact and satisfaction ofthe above two authorities is on the basis of the relevantmaterial. Therefore, we do not find any merit in this appeal andthe same is hereby dismissed. , J. , CJ.