TMI Blog2023 (11) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... h additions were deleted [ 2022 (12) TMI 1472 - ITAT SURAT] - Decided in favour of assessee. - Shri Pawan Singh, Judicial Member And Dr Arjun Lal Saini, Accountant Member For the Assessee : Shri Hiren M. Diwan, C.A And Shri Dhruvang H. Diwan, C.A For the Revenue : Shri Vinod Kumar, Sr-DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeal assessee are directed against common orders of ld. Commissioner of Income-tax (Appeals)-4 Surat [for short to as Ld. CIT(A) ] dated 18.03.2021 passed under section 154 of Income Tax Act, 1961 ( the Act ) for the assessment years 2013-14 2014-15. The facts related to passing order under section 154 in both the years are common, therefore, with the consent of parties, both the appeals were clubbed, heard together and are decided by consolidated order to avoid conflicting decision. For appreciation of facts, facts in assessment year 2013-14 in ITA No.355/SRT/2023 is treated as lead case. The assessee in its appeal has raised the following grounds of appeal: - 1) The ld. CIT(A) has erred in law and on facts in confirming the addition of Rs. 2,28,015/- made on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee submits copy of statement of fact filed along with regular appeal, is placed on record. Since, no show cause notice issued before making such addition, therefore basis of addition itself is wrong and liable to be deleted. In alternative submission, Ld. AR for the assessee submits that assessing officer also made similar addition on account of Zero Patient-IPD , which was also challenged by the assessee. the ld CIT(A) partly allowed relief to the assessee in his order dated 23.02.2021. however, on further appeal by assessee before Tribunal entire additions were deleted by the combination of this Bench in order dated 30.12.2022 in ITD(SS)A Nos.11-16/SRT/2021, IT(SS)A Nos.17-22/SRT/2021 ITA Nos.40-41/SRT/2021. This bench while granting relief to the assessee on similar addition of IPD patient has held the finding of Assessing Officer on probable reason is certainly a presumption. The Ld. AR for the assessee submits that it was a search case and no addition can be sustained on mere presumption, if the same is not based on seized material, however, Ld. CIT(A) while rectifying his order, restricted the addition to the extent of 30% on suppressed receipt and taxed only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the computers of assessee by search team without being certified by a requisite certificate as required under section 65B(4) of Evidence Act, which is a condition precedent for admissibility of evidence of electronic record. As obtaining a certificate under section 65B(4), is not a mere formality, but it is mandatory for reliance of such electronic evidence. The Assessing Officer is relying on such electronic record without obtaining a certificate under section 65B(4). To support his view, Ld. AR for the assessee relied on Hon ble Apex Court in Anvar P.V. vs. P.K. Basheer Others 2014 (3) ECS (1) (SC) and in the case of Ravinder Singh @ Kaku Vs State of Punjab (2022 Live Law (SC) 461). The ld AR for the assessee also relied on the Investigation Manual about digital evidence circulated by Central Board of Direct Taxes (CBDT). 7. We have considered the rival submissions of both the parties and have gone through the order of lower authorities carefully. We find that Assessing Officer made addition of Rs. 7,60,050/- on account of Zero Patient-OPD by taking view that assessee has recorded zero receipt again such total patients of 5797 in OPD category. The zero receipt cases ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r find that the Assessing Officer made additions in all years on the basis of information gathered under section 133(6), though such patient, namely, Prabha B Bhalla relates to assessment year 2013-14, whereas the Assessing Officer made addition in all assessment years, which is not tenable. Even otherwise, Assessing Officer has not confronted the information gathered from such patient to the assessee. The assessing officer also incorrectly took her view that assessee-hospital never provided free-of- cost services to the admitted patients. Such observation of Assessing Officer is contrary to the finding of Assessing Officer in case of Dr. Pregna H. Pathak (PAN No.AGRPP 5765A), whose assessment was also completed by same Assessing Officer and allowed to patients at zero patient per/day for AYs 2008-09, 2009-10 and 2010-11. We further find that though the Assessing Officer recorded that there was 28 patients whose aggregate of Rs. 148,000 was added as suppress receipt, however, total number of patients in the Annexure-A is 26. 19. We find that the Ld.CIT(A) restricted the addition to the extent of 30% of alleged suppressed receipt by taking view that only profit element of reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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