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TMI Blog2017 (8) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... medicine. A search was conducted in the respondent Clinic on 23.1.2003. Consequent to the search, the following facts have come to light: (i) Suppression of Receipts (ii) Inflation of expenses in the purchase of medicine (iii) Investing the unaccounted income generated, by suppressing collection (iv) Bogus sundry debtors (v) Omission to account advertisement expenses (vi) No accounting of income received on lodging house. Cash ₹ 18,25,450/- was found and seized, gold jewellery weighing 1522.6 grams were found, but not seized. Hence, for the block period 1996-97 to 2002-2003 and for the period 1.4.2002 to 23.1.2003 assessment was framed under Section 158 BC read with Section 143 of the Act and notice under Section 158 BC of the Act was issued on 3.11.2003 and the assessment was completed u/s.158 BC read with Section 143(3) of the Act on 31.3.2005 and determined the total undisclosed income as ₹ 2,59,57,634/- as against the income returns submitted by the respondent/Assessee of ₹ 69,40,422/-. 3. Aggrieved by the Block Assessment order, the Assessee preferred an appeal before the Commissioner of Income Tax (Appeals) in I.T.A.No.27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) confirmed all the additions but deleted a sum of ₹ 24,48,242/- on purchase of medicines. Against the said portion of the order, the appellant/Revenue has filed an appeal before the Income Tax Appellate Tribunal in IT (SS) A.No.156/ Mds/2006. The Assessee has preferred an appeal in IT (SS) A.No.94/ Mds/2006. 8. The learned Standing counsel for the appellant contended that the Income Tax Appellate Tribunal has held that the Assessee has been suppressing the professional receipts on the basis of consultation register. Further, the tribunal has held that initially the Assessee had submitted that 20% of the money was not received and lateron submitted that upto 30% of the money was not received. The tribunal has accepted the contention of the Assessee by pointing out that the Assessing Officer himself estimated the cost of medicines about 42% in the assessment year 2001-02. Thus, the total cost for purchase of medicines admitted by the Assessing Officer is ₹ 73,57,878/- as against the total collection including the unaccounted collection of ₹ 1,74,05,435/- which comes to 42.27%. But the cost of purchase gone down to 26.46% and 18.82% for assessment year 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be nowhere near realities. Atleast 30% of the gross total thus arrived at is not collected or realised. Even the totalling made by the Department arriving at the figure of ₹ 5,50,82,680/- was done in haste and it needs rechecking. Even admitting such total as correct, 30% has to be deducted as not collected and realised. This will further reduce the collection figures by ₹ 96,35,673/-. Further, the amount collected as per Books works out to ₹ 2,71,58,856/- and the figure adopted for this in your above letter is not correct.'' 11. The learned counsel for the respondent/Assessee would content that Net wealth of the Assessee did not match the income estimated by the Assessing Officer and the wealth of the respondent/ Assessee stood as ₹ 59 lakhs as against ₹ 2.55 Crores and further submitted that there was no evidence in the hands of the department indicating the receipt of the above estimated income at ₹ 2.55 Crores. Further, it is the case of the respondent/Assessee that the Assessing Officer himself had allowed the cost of purchase of medicine for the Assessment year 2001-02 at 42.27% of the total estimated collections. On the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undisclosed receipts. 16. There is no dispute that undisclosed receipts and unaccounted purchase of medicines were found during assessment. The Commissioner has come to the conclusion that a separate addition has been made towards inflation of purchase to the tune of ₹ 24,48,242/-. In so far as the unaccounted purchase of medicine to the tune of the above said amount, has been disallowed as ordered by the Assessing Officer and in so far as the other addition is concerned, the Commissioner has upheld the order of the Assessing Officer. In the light of the above, the Commissioner has allowed deduction of ₹ 24,48,242/- towards cost of medicines. In so far as the other dispute is concerned, the order of the Assessing Officer has been sustained. 17. Assailing the said order, the Assessee/respondent has preferred an appeal in IT (SS) No.94/Mds/2006 before the Income Tax Appellate Tribunal, Chennai on the ground that the assessment should be framed on net asset method and estimation of professional receipts including discount on non-realisation of such purchases and deduction for purchase on medicines etc. and other grounds were also raised, in respect of other issues. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the respondent/ Assessee is not entitled for the deduction of 42% from the gross receipts towards non receipt of fees and cost of medicines. The Commissioner of Income Tax (Appeals) has granted deduction only for the purchase of medicines and not for the non receipt of fees by the respondent/ Assessee. There is no discussion or any evidence, to come to such conclusion by the tribunal, for granting deduction of 42% towards cost of medicines and non receipt of fees. 22 The Full Bench of the Kerala High Court in N.K.Dharmadas vs. State Transport Appellate Tribunal (AIR 1963 Ker 73) has held that as under: The power to remand was incidental to and implicit in the appellate jurisidiction. This is what the Full Bench observed in paras 16, 17, 18, and 19 of the said judgment: ''16. An appeal is a complaint to a superior body of an injustice done or error committed by an inferior one with a view to its correction or reversal. It is creature of statute, not a constitutional or inherent right. But, as pointed out by Maxwell, where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.260A ibid to remand the case to Tribunal for deciding the appeal afresh on merits if we find that finding of fact recorded by the Tribunal for reversing the decision of CIT(A) was based on no evidence no non-consideration of evidence led. It then becomes a case of improper appreciation of oral evidence calling for interference. It is for this reason, we have formed an opinion to remand the case to Tribunal. In our view, the remand if made would not cause any prejudice to either of the parties as both will get an opportunity to put forth their submission again before the Tribunal in appeal.'' 25. In our view, there are no materials or guidelines or discussion of evidence with regard to deduction of 42% granted by the tribunal towards non receipt of fees and cost of medicines, in the light of the decisions cited supra, this Court is inclined to set aside the order passed by the tribunal. The substantial questions of law framed in this appeal are answered accordingly. 26. In the facts and circumstances of the case and the decisions cited supra, the appeal is allowed. The impugned order of the tribunal is set aside and the matter is remanded to the tribunal to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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