2015 (10) TMI 1763 - HC - Income Tax

Addition on undisclosed income - unexplained expenditure - evidence found during the course of search under Section 132 - ITAT deleted the addition - Held that - Assessing Officer has committed an error in calculation of income of the respondent and the additions have been made on the basis of presumption and surmises and without any evidences on record. In the registers, which were seized bearing No. TKS-1 to TKS-12, some amount has been mentioned, which is received by the respondent assessee. The Assessing Officer has presumed that still further amount must have been paid by the patients, in cash. There is no evidence taken by the Assessing Officer, by examining any of the patients that he has paid any amount, in cash, over and above what is stated in the register. Not a single patient has been examined by the appellant for any of the block years or for the broken period. Moreover, the Assessing Officer has presumed the number of patients also for two assessment years i.e. 1995-96 and 1996-97 as 1000. The Assessing Officer has also presumed the average rate of ₹ 2000/- per case, on the basis of cash memo seized for broken period running from 1st April, 1997 to 21st October, 1997. For this broken period the total receipt comes to ₹ 10,20,600/- and the total number of cases were 541 and, therefore, average comes to ₹ 2000/- per patient. Thus, the rate which was found out by the Assessing Officer in the year, 1997 has also been made applicable in the year 1988-89 and, that too, on the presumed number of patients. This is not permissible in the eyes of law. The total calculation of receipts of the respondent-assessee, which worked out at ₹ 11,48,600/- is absolutely a baseless calculation. - Decided in favour of assessee.

Summary

Issues:
- Appeal against judgment and order dated 13th April, 2006
- Addition of undisclosed income based on seized materials
- Deletion of other additions
- Restoration of matter back to the Assessing Officer
- Appreciation of meaning of "undisclosed income"
- Consideration of all additions based on seized materials
- Failure to apply mind by the ITAT
- Reliance on a specific judgment by the ITAT

Analysis:
1. Appeal against Judgment and Order:
The Commissioner of Income Tax appealed against the decision of the Income Tax Appellate Tribunal (ITAT) upholding the order of the Commissioner of Income Tax (Appeals) for the block assessment year. The dispute arose from a search conducted at a Nursing Home, leading to the seizure of registers and cash memos.

2. Addition of Undisclosed Income:
The Assessing Officer calculated undisclosed income based on seized registers and cash memos, presuming cash payments for medical treatments. The appellant argued that the additions were logical and in line with the Income Tax Act. However, the respondent contended that the calculations were baseless and lacked evidence to support the assumptions made by the Assessing Officer.

3. Deletion of Other Additions:
The CIT (Appeals) and ITAT deleted certain additions, emphasizing that the Assessing Officer's calculations were unfounded and lacked evidentiary support. The respondent argued that additions cannot be made on presumptions and surmises without concrete evidence.

4. Restoration of Matter to Assessing Officer:
The ITAT restored the matter back to the Assessing Officer regarding certain additions made under Section 69C of the Income Tax Act, emphasizing the need for proper evidence and adherence to legal provisions.

5. Appreciation of "Undisclosed Income":
The issue of appreciating the meaning of "undisclosed income" as defined under the Income Tax Act was raised, questioning the correctness of the calculations made by the Assessing Officer.

6. Consideration of Additions Based on Seized Materials:
The appellant argued that all additions were based on seized materials and evidence, highlighting the provisions of Section 132(4A) of the Income Tax Act, which the ITAT allegedly failed to consider.

7. Failure to Apply Mind by ITAT:
The ITAT was criticized for purportedly not applying its mind and perusing the seized materials, which formed the basis of the assessment order, raising doubts on the validity of the decision.

8. Reliance on Specific Judgment:
The appellant questioned the ITAT's failure to consider a specific judgment of the Supreme Court, suggesting that the ITAT should have relied on precedents to make a well-informed decision.

In conclusion, the High Court dismissed the Tax Appeal, emphasizing that the additions made by the Assessing Officer were baseless, lacking evidence, and rightly deleted by the CIT (Appeals) and ITAT. The judgment highlighted the importance of concrete evidence and proper adherence to legal provisions in determining undisclosed income, ultimately upholding the decisions of the lower authorities.