9911796707
TMI Blog2012 (12) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... ke up both the disallowances separately, being separate and distinct, though clubbed together by the assessee per its Ground No.1. The disallowance for Rs. 16,497/- is in respect of electricity expense for an apartment in a building by the name `Heera Panna'. The assessee claims that the apartment, belonging to a close relative, is being used as a conference room, i.e., for meeting the patients, etc. and, thus, being used only for his business/professional purposes. However, as the assessee could not evidence the said claim, disallowance for Rs. 76,900/-, representing 10% of total expenditure claimed on electricity (Rs.7.69 lacs), which approximated the electricity expenditure in respect of the said apartment, was made. In appeal, the disallowance stood restricted to Rs. 16, 497/-, on the assessee leading evidence to the effect that the actual expenditure qua the said apartment had been wrongly assumed by the AO, and was in fact only at the said amount. Aggrieved, the assessee is in second appeal before us. 3. We have heard the parties, and perused the material on record. The assessee has not been able to improve its case in any manner before us, as was admittedly the case on bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of certain time period for effecting the payment is also necessary. The due date, which represents the last date for payment, though not clarified, would only be subsequent to the raising of the bill, which itself is in the second week of April, 2007. The Revenue's case is that, being a contractual liability, the relevant date would be the due date of payment in terms of the contract, whereat only the liability can be said to have crystallized. In any case, it cannot be prior to the date of the raising of the relevant bill. In our view, the services having been availed, and valued only at the contracted rate, the corresponding liability has arisen. 6.2 True, the liability can not be said to have become payable by the year-end, which it in fact would only on the due date, before which the same cannot be enforced, in terms of the relevant contract itself. However, the question is not whether the liability becomes due for payment by the year-end or not, but whether, the corresponding services having been availed of, has the assessee assumed or incurred a liability in its respect. With regard to the argument that the payment has not become due for payment, so that no contractual lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act. The brief facts in this regard are that the assessee is a proprietor of an opthomatical hospital & research centre by the name `Sahai Hospital and Research Centre' at Jaipur. The same is accredited by the National Board of Examinations, Ministry of Health and Family Welfare, Govt. of India, New Delhi, as an Institution for conducting various training courses leading to inter alia Diploma in Ophthamalic Techniques; DNB (Diplomate of National Board); House Officer in Ophthalmology. Stipend is paid to the students enrolled with the Institution. The same stands considered by the Revenue as being a fee for professional and technical services, liable for deduction of tax at source u/s. 194J of the Act. As no tax stood deducted thereon, the provision of section 40(a)(ia) was applied. 8. We have heard the parties, and perused the material on record. 8.1 The assessee's case is that the payee-students, who are allowed stipend, work as apprentices toward acquiring experience qua the clinical and practical aspects of their courses and, therefore, the same is not a fee for either professional or technical services. The Revenue's case, on the other hand, is that the payment of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary part of their program, and which they are obliged to undertake for the successful completion of their course. It is only when what charged is by way of a `fee' that the provision of section 194J would stand to be attracted. The payment to the doctors, irrespective of its nomenclature, which cannot be determinative though, would not thus qualify to be termed as a fee, which, by definition, is the amount that one pays or is to be paid to allow a person to do something. And, correspondingly, entitle the payer to a particular facility, viz. entrance fee, college fee, etc. Speaking in the context of the present case, it is rather the payment by the doctor-students, if any, to the Institute, for being allowed to undergo the academic and practical training, even if in pursuance to a recognized study program or professional course, that would qualify to be a fee. The payment allowed to the doctors, though fixed with reference to their professional qualification, including work experience, is, in our view, essentially not a charge against the services rendered by them, but only a stipend, by way of a living allowance, allowed thereto. 8.4 As such, no part of the impugned amount of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e apparent from the foregoing analysis, with the law in the matter being trite, is purely factual, i.e., whether the assessee has been able to prove its claim of having incurred the impugned expenditure and, further, only for the purposes of its business. The reliance on case law, de hors the facts, would thus be of little assistance. However, as no basis for quantification of the disallowance at 20% has been specified by the Revenue for us to ascertain the reasonability thereof, with no mention of the expenditure incurred in the past, we are inclined to restrict the same to 10%, as against 20% by the Revenue, which in our view would meet the ends of justice. We decide accordingly. 11. The last ground is against the sustenance of an addition in the sum of Rs. 5.03 lacs in respect of the discount allowed by the assessee, at Rs. 1 lac. The assessee's gross receipt of Rs. 201.21 lacs was found to be at net of discount allowed by it, which was found to be at about 5% of the billed amount. The assessee was required to furnish the total amount of discount allowed, and which was explained by him as not feasible in view of the voluminous record. The discount was thus considered as having ..... X X X X Extracts X X X X X X X X Extracts X X X X
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