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TMI Blog2016 (1) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,63,365/- 3.1 The assessee had carried out surgery for the donors of kidney and correspondingly Dr. L. Srinivasan carried out surgery on the recipients of kidney. There was a search conducted u/s.132 on 10.12.2007 in the case of Dr. P. Ravichandran. Based on the statement given by Dr.P.Ravichandran, the assessing officer has estimated the number of cases the assessee would have operated on the donors of the Kidney from the period 2001 onwards. He has also estimated the amount which the assessee would have received based on the statement of Dr.P.Ravichandran on how much he has given to Dr. L. Srinivasan for performing the surgery on the donors of the Kidney as well as the recipients of Kidney. 3.2 Dr L.Srinivasan in his statement had indicated the number of cases which he and the assessee herein have carried out in the course of Kidney transplant in which Dr.P.Ravichandran was involved. Dr.L.Srinivasan had also indicated the approximate amount he had paid to the assessee herein for performing operation of the donors of Kidney. All these operations of the donors of the Kidney was performed in MIOT and Bharathi Raja Hospital and Research Centre. 3.3 Dr L. Srinivasan in his sworn s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rformed by the assessee as well as Dr. L. Srinivasan as 760 for the assessment year 2002-03 to 2008-09. It is not clear on what basis he has arrived at this figure. The Assessing officer has not made available to the assessee the basis of which he has arrived at number of operation he has performed as well as the statement of Dr. P. Ravichandran based on which he has arrived at the amount paid to the assessee for carrying out the operation. 3.7 The assessee was not given opportunity to rebut the figure adopted by the Assessing officer as also they have not given opportunity to cross examine Dr. P. Ravichandran. Further, the assessing officer has ignored the statement of the assessee that he has engaged two assistants to help him to carry out the operation and he should have appreciated that such intricate operations cannot be done by the surgeon independently without assistants. On the basis of these, he has estimated assessee's income from these operation purely on surmises and has arrived at the assessed income at Rs. 27,30,0001- for the assessment year 2004-05. 3.8 The assessee, before the CIT(Appeals) contended that the finding of the AO that the assessee is not in a posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Assessing Officer relied on a record from Bharathiraja Hospital, for computing the number of transplants and this appears at paper book at page Nos. 21 to 54. Except for a few cases the name Dr.PRC is mentioned against each patient. None of the parties have disputed that initial PRC is the abbreviation of Dr. P. Ravichandran. Case of the assessees is that 13 of the total 476 cases mentioned in the list were operations done by one Dr.Muthu Jayaraman. An examination of this list show that against serial os.2,12,13,14,38,40,45,55,60,62,66,105 & 112, considered by CIT(A) as transplants done by Dr.Muthu Jayaraman except Sl. Nos. 2,38,40,13 which show the initial 'NJ' overwritten over the initial 'PRC', all others are doubtful. Similar column against l.No.14 seems to be blank. Sl. No.12,45, 55, 60 & 62 have no mention of 'NJ', but only the initial 'Dr.PRC' appears. Name of doctors again in sl. No.66 is not clear whereas Sl. No.101 & 112 are missing. Therefore, out of 13 cases mentioned to have been done by Dr.Muthu Jayaraman, what can at the best, be accepted, is only eight, giving the full benefit of doubt the assessee. Contention of the assessee that u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) was justified in confirming the quantum of fees estimated made by the Assessing Officer in this regard. 24. However, vis-à-vis the relief given for the expenditure incurred on supporting staff, the statement given by the hospital authorities are very relevant. These statements find a mention in the assessment order of Dr.P.Ravichandran. One Smt. Arul Jothi who was the hospital-in-charge of Bharathiraja Hospital had in her statement mentioned, that a sum of Rs. 70,000/- to Rs. 75,000/- per patient was to be collected from Dr. P. Ravichandran for the procedures done in the said hospital. This is specifically mentioned in the assessment order of Dr. P. Ravichandran for Assessment Year 2007-08 dated 24.12.09, copy of which has been produced before us. She has also given a break-up of the expenditure in four heads namely, hospital expenses, medicines, diet expenses and blood charges. Similarly, Dr.Natesan, of Bharathiraja Hospital in a statement recorded on 04.02.08 had also mentioned that Dr. P. Ravichandran used to deposit Rs. 75,000/- in cash directly at the cash counter and this sum was against theatre charges, post operative charges, ventilator charges, cardiac monito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixed the number of surgeries conducted during the same period of 7 years i.e. from 2002-03 to 2008-09 at 570 and fee for surgery at Rs. 22,500/-. Based on the order of the Tribunal, the AO quantified the unaccounted income for the impugned assessment years and levied penalty u/s.271(1)(c) of the Act. According to the CIT(Appeals), the assessee has not proved that there is no concealed income with any cogent evidence so as to establish that no penalty could be levied and he confirmed the levy of penalty u/s.271(1)(c) of the Act for all these assessment years. Against this, the assessee is in appeal before us. 7. We have heard both the parties and perused the material on record. There was search action took place u/s.132 of the Act in the case of Dr. P. Ravichandran, who was associated with the assessee in conducting kidney transplantation operation by way of carrying out surgery on the donor's of the kidney. The assessment was framed in this case u/s.143(3) of the Act. In the course of search action, Dr. P. Ravichandran stated that he has paid surgical fees to the donor's surgeon, Dr. Deepal Lamech along with another surgeon, Dr. L. Srinivasan. The assessee has not maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evasion was found out. The AR pleaded before us that the assessee has not concealed the income and not furnished inaccurate particulars of income and the assessee was in a position to explain the deposits made into its bank accounts. But however, there was no positive efforts made by the assessee to explain the deposits into its bank accounts. There is no bona fide explanation from the side of the assessee and the addition made by the authorities cannot be considered unsustainable. Further, the addition made in the assessment is based on the seized material found during the course of search and these are not controverted by the ld. AR and it is not unproved that the income is not based on any positive material. The case law relied upon by the assessee only pertains to those instances where no evidence is available with the assessing officer and certain additions are made based on revised return and information submitted by the assessee during the course of assessment proceedings and therefore, there is no concealment of income and furnishing of inaccurate particulars of income as held by the Tribunal in the case of M/s. Om Automobiles in ITA Nos.948 to 952/Mds/2010 dated 16.5.2012. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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