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Dr. Nassar Yusuf Versus The Commissioner of Income Tax, Calicut

2015 (8) TMI 182 - KERALA HIGH COURT

Addition to income - whether the Hon'ble Income Tax Appellate Tribunal was right in disposing the appeal filed by the appellant without verifying records of the hospital company and order of assessment of the hospital company in spite of a specific directions by this Hon'ble Court? - according to the Tribunal the income assessed in the hands of the appellant herein was already assessed at the hands of the hospital - Held that:- This Court has in categorical terms disapproved the accounts maintai .....

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onsideration, the Tribunal was perfectly justified in doing so.

Counsel then referred us to the statements recorded during the course of survey and contended that there was no evidence of un-accounted payments made to the doctors. Reading of the assessment order and the Tribunal's order shows that there was sufficient indications in the statements recorded during the survey. These findings, being purely factual, we decline to undertake its appreciation afresh. One additional fact whic .....

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ate to upset those factual findings.Appeal dismissed. - ITA No. 239 of 2013 - Dated:- 15-7-2015 - Antony Dominic And Shaji P. Chaly, JJ. For the Petitioner : Sri K Srikumar, Sr. Adv, Sri K Manoj Chandran, Sri P R Ajithkumar For the Respondent : Sri P K R Menon, SC for Income Tax JUDGMENT Antony Dominic, J. In view of the common issues that were raised, the appeals were disposed of by a common order of the Income Tax Appellate Tribunal. For that reason itself, these appeals were heard together ad .....

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al as professional charges for operations performed by them. In so far as the appellant is concerned, the impounded documents showed that in the assessment year 2000-2001, he was paid ₹ 40,40,014/-, which was not shown in the return of income filed by the appellant. Accordingly, notice under section 148 was issued and the appellant filed his reply. Summons under Section 131 was issued and his statement on oath was also recorded. Sworn statements of Mrs.Anju, the Accounting Assistant, Sri.A .....

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eal by Annexure-1A order, partly modifying the assessment order. In the further appeal filed before the Tribunal, Annexure-2 order was passed. In its order, relying on the order of assessment passed in the case of Fathima Hospital, the Tribunal set aside Annexures 1 and 1A orders mentioned above. Thereupon, the Revenue filed appeal before this Court as ITA No.1144 of 2009. That appeal was heard along with the connected appeals and the appeals were disposed of by Annexure - 3, judgment. By this j .....

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the Tribunal disposed of the appeals upholding Annexure- 1 and Annexure -1A orders. It is in this background, these appeals are filed by the assessee, framing the following questions of law: A. On the facts and circumstances of the case, whether the Hon'ble Income Tax Appellate Tribunal was right in disposing the appeal filed by the appellant without verifying records of the hospital company and order of assessment of the hospital company in spite of a specific directions by this Hon'bl .....

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ding effect on the lower authorities especially when the law is well settled that the statement which are in the nature of obiter dicta are not authoritative and binding? E. Whether principles of natural justice violated by the Income Tax Appellate Tribunal in not providing an opportunity as directed by this Hon'ble Court especially when reasonable opportunity would take in verification of the records and order of assessment of the hospital company? F. The addition of income made to the decl .....

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f this Court. According to him, these observations, being in the nature of obiter dicta, were not binding on the Tribunal and as the Tribunal has relied upon these observations, the order passed by the Tribunal is untenable. In support of this contention, the learned Senior counsel placed reliance on judgment of the Apex Court in Arun Kumar Aggarwal v. State of Madhya Pradesh and Others [AIR 2011 SC 3056]. 7. In the judgment mentioned above, the principle of obiter dicta was explained as opinion .....

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by the case before him, but not arising in such a manner as to require decision by him. In the light of this principle, it has to be seen whether the observations made by the Division Bench in Annexure - 3 judgment in ITA No,820 of 2009 and connected cases are mere obiter dicta which should have been eschewed by the Tribunal when the appeals were re-considered. 8. This contention was raised in the context of the references made by the Tribunal to the findings of this Court regarding the assessm .....

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was already assessed at the hands of the hospital. While considering the legality of this conclusion of the Tribunal, this court necessarily had to make reference to the assessment order passed against the hospital. It was accordingly that in the judgment this Court referred to the assessment order and made the observations which are extracted by the Tribunal in paragraph 8 of its order. These observations and findings, were essential for the disposal of the appeals and therefore embody resolut .....

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ntention raised by the counsel deserves only to be rejected and we do so. 9. Counsel then complained that before the Tribunal, Annexure-6 and 7, affidavit of the Managing Director of the hospital, accounts of the hospital and the assessment order of the hospital for the assessment year 2000-2001 were produced and that the Tribunal did not even refer to these documents. Reading of the affidavit of the Managing Director shows that in the affidavit, he has explained about the accounts of the hospit .....

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he operative portion of Annexure- 3 judgment, requiring the Tribunal to re-consider the appeals after verifying the records and with opportunity to the appellant, the Tribunal did not do so, we have to necessarily examine whether there was any failure on the part of the Tribunal. 10. Reading of Annexure - 3 judgment of this Court shows that referring to the accounts of the hospital and the assessment order passed against it for the year 2000-2001, this Court held thus: "However, the case of .....

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all the contentions of the hospital treating the authorised representative's statement as gospel truth. In any case, we do not find any justification for the Tribunal to interfere with the assessment orders confirmed in appeal merely based on the finding of the assessing officer at Mumbai in the case of hospital. In fact, the amounts assessed in the hands of the respondents/assessees are not found to be genuine expenditure by the assessing officer in the assessment of the hospital. Further, .....

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Department had unearthed unaccounted collection and distribution of money among Doctors by the hospital." 11. The above findings in Annexure - 3 judgment, which have become final and binding on the appellant, shows that this Court has in categorical terms disapproved the accounts maintained by the hospital and also Annexure - 7 assessment order passed against the hospital. It was on that basis that the matter was remitted to the Tribunal, directing it to re-consider the appeals. Once the ac .....

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