D.b. Income Tax Appeal v. Dr. Suresh Sharma

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : D.B. INCOME TAX APPEAL NO.49/2012CIT, Udaipur Vs. Dr. Suresn Sharma Date of Judgment 14[th] January, 2013 PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARIHON'BLE MR. JUSTICE ARUN BHANSALI Mr. K.K. Bissa, for the appellant. ---- BY THE COURT:(PER HON'BLE BHANSALI),J. The present appeal under Section 260A of the Income TaxAct, 1961 ['the Act'] has been filed by the Revenue seeking toquestion the order dated 09.12.2011 passed by the Income TaxAppellate Tribunal, Jodhpur Bench, Jodhpur ['the Tribunal'] inITA No.251/JODH/09 for the assessment year 2005-2006,whereby, the Tribunal has affirmed the order dated 26.02.2009passed by the Commissioner of Income Tax (Appeals), Udaipur['the CIT(A)'] partly allowing the appeal preferred by theassessee and deleting the additions of Rs.8,66,316/- on accountof fees, Rs.1,34,545/- as unaccounted expenditure andRs.4,75,000/- on account of operation receipts as made by theAssessing Officer ['the AO'] in the assessment order dated 31.12.2007. Having heard the learned counsel for the appellant andhaving perused the material placed on record, we are clearly ofthe view that the present appeal essentially raises issues relatingto appreciation of evidence resulting in finding on facts; and nosubstantial question of law is involved. The facts of the case may be noted thus: The assesseeruns a nursing home and also owns a marble cutting plant. Theassessee filed his original return of income for the assessmentyear 2005-2006 on 27.02.2006 declaring total income ofRs.66,500/-. It appears that a survey under Section 133A of theAct was undertaken on 29.11.2006 at the business premises ofthe assessee and on the basis of material found during thecourse of survey, while notice under Section 148 of the Act wasissued relating to assessment years 2002-2003 and 2003-2004and for the said assessment years assessments were completedunder Section 143(3)/148 of the Act and assessment for theyear 2005-2006 was completed under Section 143(3) of the Act.The AO, inter alia, made the additions, three of which weredeleted by the CIT(A) as noticed hereinbefore. The appealsarising out of assessment years 2002-2003 to 2006-2007 filedby revenue were decided by the Tribunal by a common order. For the assessment year 2005-2006 the Tribunal hasobserved as under:- (i)Addition to the total income on account of fees: “The facts of the case are similar to that for the assessmentyear 2004-05. During the year the receipts ofRs.11,87,585/- appears to be on lower side, however,addition of Rs.4,67,202/- has been sustained against whichno appeal/cross objection is filed by the assessee. Thiscovers the possibility of underestimation of the sales.Accordingly, in view of the detailed findings above in theorder for the Assessment Year 2002-03 and 2004-05, weupheld the findings given by the CIT (A). The ground ofappeal is accordingly rejected.” (ii)Addition as unaccounted expenditure: “As the facts and circumstances of the case are similar, inview of our findings above in the order for assessment year2004-05, we uphold the order of the ld. CIT (A) on thisground also. The ground of appeal is accordingly rejected.” (iii)Addition on account of operation receipts: (ii)Addition as unaccounted expenditure: “As the facts and circumstances of the case are similar, inview of our findings above in the order for assessment year2004-05, we uphold the order of the ld. CIT (A) on thisground also. The ground of appeal is accordingly rejected.” (iii)Addition on account of operation receipts: “Therefore, we are of the opinion that the revenue ofoperations cannot be spread over the year on the basis ofcertain papers for few days found during the course ofsurvey. Further, as the operations are conducted by theson and daughter in law of the assessee and not by theassessee. In such circumstances, it is not appropriate toassess any part of income in the hands of the assessee.Moreover, in order for ground no.1 above, we have foundthat the addition made for Rs.4,67,202/- covers allpossibilities of leakages in the revenue. Accordingly, nofurther addition on this account is sustainable and weupheld the order of CIT(A) on this ground. The ground ofappeal is accordingly rejected.” While dealing with the assessment year 2004-2005 theTribunal has followed its findings given for the assessment year2002-2003. This Court while considering the appeal filed by theRevenue for the assessment year 2002-2003 being D.B. Income Tax Appeal No.47/2012 (CIT, Udaipur Vs. Dr. Suresh Sharma)has held as under:- “In our view, the submissions do not make out anysubstantial question of law for consideration by this Court inthis appeal. The grounds as urged and the questions as suggested essentially relate to the matters of appreciationof evidence for factual enquiry and rendering findings onfacts about the expenditure on purchase of medicines,receipt of consultation fees and expenditure at factory andhospital. Though the AO made the additions with referenceto his opinion on the material found and impounded duringthe course of survey proceedings, however, the CIT(A)disagreed with the findings of the AO after thoroughlyanalyzing the material on record and after referring to theinconsistencies in the assessment order on accountingaspects and the fact that the trading additions had alreadybeen made in the original assessment. Thereafter, theTribunal found no reason to interfere while scrutinizing thefindings recorded by the CIT(A) on relevant considerations. In an overall view of the matter, we are satisfied thatthe findings on facts have been rendered by the twoappellate authorities in accordance with law; and the ordersimpugned do not suffer from any perversity or wrongapplication of any principle of law so as to raise anysubstantial question of law. Consequently and in view of the above, the appealfails and the same is, therefore, dismissed summarily.” The reasons foregoing, on all the relevant and materialaspects, equally apply to the present appeal too, which is basedon self-same grounds. Thus, following the decision aforesaidand in the same terms, this appeal also stands dismissedsummarily. (ARUN BHANSALI), J. (DINESH MAHESHWARI), J.