2005-VIL-370-ITAT-JDP

Equivalent Citation: TTJ 104, 504, [2007] 16 SOT 32 (JODH.) (URO)

Income Tax Appellate Tribunal JODHPUR

IT APPEAL NO. 48 (JD.) OF 1999

Date: 28.10.2005

DR. PRAKASH RAATHI.

Vs

INCOME-TAX OFFICER.

BENCH

Member(s)  : HARI OM MARATHA.

JUDGMENT

This appeal has been filed by the assessee for asst. yr. 1994-95 against the order dt. 2nd Nov., 1998.

2. The first effective issue raised in the appeal pertains to sustained trading addition of Rs. 24,000.

3. The assessee is a practising doctor and is the proprietor of Rathi Nursing Home, Sujangarh. As a result of a survey conducted under s. 133A on 14th Sept., 1993, trading addition of Rs. 35,880 was made by applying GP rate of 13.65 per cent as against the rate of 11.4 per cent declared by the assessee. The learned CIT(A), however, reduced this addition to Rs. 24,000. The Department had also come in appeal before this Bench in relation to the relief of Rs. 11,880 granted to the assessee by the learned CIT(A). This Bench while deciding the appeal of the Department on this point has already confirmed the findings of the learned CIT(A). Therefore, this issue stands covered by the decision of this Bench in ITA No. 47/Jd/1998; asst. yr. 1994-95 order dt. 24th Sept., 2004, a copy of which is placed on the file. Following the above Tribunal order, I confirm the findings of the learned CIT(A) and dismiss the ground of appeal taken by the assessee on the basis of the identical reasoning.

4. The next issue raised by the assessee pertains to confirmation of an addition of Rs. 75,148 made in the laboratory receipts accounts.

5. The facts relating to this ground are that the assessee had declared GP from the laboratory at Rs. 32,264. During the course of survey, it was noticed that the total actual receipt from laboratory were not entered into the books of account and after comparison of the entries in laboratory receipt register and the regular cash book, it was noted that only receipt amounting to Rs. 23,095 were found in the cash book against the actual receipts amounting to Rs. 44,755. The AO estimated receipts for the entire year on the basis of the actual receipts as noted above, from April, 1993 to August, 1993 and made an addition of Rs. 75,148 in this account. The explanation of the assessee (is) that the laboratory technician was indulging in performing tests on behalf of other doctors also and that those receipts did not belong to this assessee, who was primarily a surgeon, and was busy in his professional work. The assessee also filed an affidavit of the technician to the effect that the laboratory technician had also done tests for other doctors. The AO did not believe on this affidavit, being a self-serving document.

6. I have heard the rival submissions and perused the evidence on record.

7. The learned Authorised Representative has vehemently argued in support of the averments contained in the affidavit of the technician, namely, Shri Sunny Joseph and has asserted that the duly sworn affidavit has to be given credence unless the same is controverted. For that matter, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of Mehta Parikh & Company vs. CIT (1956) 30 ITR 181 (SC). On the other hand, the learned Departmental Representative, has placed reliance on the orders of the learned CIT(A) as well as that of the learned AO.

8. I agree with the learned Authorised Representative, Shri Suresh Ojha, to the extent that the averments of an affidavit, which is duly sworn in, are to be accepted as truthful until the same is rebutted by way of evidence brought on record. The Hon'ble Supreme Court has reiterated many a time, the above proposition of law. It is also true that in (this) case, the affidavit of the technician, Shri Sunny Joseph, remained unrebutted. The AO simply opined that it appeared that Shri Sunny Joseph was still working with the assessee on the day of filing of the affidavit, i.e., 15th July, 1998. The AO did not ascertain as to whether the technician, Shri Sunny Joseph, was really working any more with the assessee or not. The technician has thrown open his credential to jeopardy by such a declaration in his affidavit. The affidavit has to be accepted as a truthful version of the maker in the absence of any counter evidence. Therefore, the impugned addition has to be deleted. I would like to add that it is not something very unusual when a technician may also perform certain laboratory tests for other doctors. Therefore, the impugned addition is hereby deleted.

9. The next issue pertains to partly sustained addition made on account of alleged unexplained investment in the construction. of the house. Again this issue stands covered by the decision of this Bench. While dealing with the appeal of the Department for this very year it has been held (that) the PWD rates are to be applied for valuation of the property. Therefore, this issue is disposed of in the same way. The AO has to apply local PWD rates to calculate the investment in the relevant year.

10. The next ground of appeal pertains to disallowance of Rs. 5,200 out of total claim of telephone, electricity expenditure, etc., on account of personal user.

11. The learned CIT(A) has disposed of this issue in one sentence without giving any details of the facts relating to this issue. Therefore, this issue is restored back to the file of the learned CIT(A) with the direction to pass a speaking order on this issue. Obviously, the assessee has to be heard before passing an order as per law. This ground is accepted for statistical purposes.

12. In the result, the appeal is partly allowed.

 

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