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TMI Blog2019 (9) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... tal cannot be compared with the salary paid by the private hospital to the private doctors. In the absence of necessary information with respect to that establishment of the hospital, the revenue collected by the hospital, the competence, experience and their ability to give result, it would not be safe use these as comparable instances with that of the assessee. Doctors who had passed out with the same degree in cardiology DM cannot be compared with experience doctor working in the field for the last ten years. No such fact and figure were brought on record by the AO in his order with respect to Dr. Viaks Goyal, Dr. R.K. Singh and Dr. Puneet Rastogi and Dr. Ram Kumar. In our view , intervention in heart by way angiography and surgical bypass and valve replacement needs different skills and expertise in the medical field. To day we are having specialists, super specialist and organ specialist in India and outside India with the same educational qualification. Dr. Ravi Shankar Dalmia having sufficient expertise in the field it is clear from the fact that from 2007 he was working with escort hospital Delhi and thereafter working with the assessee hospital with effect from F. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le only after bringing on record the comparison between two doctors not only on the basis of the medical degree but also on the basis of expertise etc as mentioned hereinabove. - Decided against revenue - ITA No. 147/Agra/2017 - - - Dated:- 20-9-2019 - Shri Laliet Kumar, Judicial Member and Dr. Mitha Lal Meena, Accountant Member Appellant by Shri Sunil Bajpai, CIT Dr Respondent by Shri Pankaj Gargh, Advocate ORDER This appeal is filed by the Revenue against the order dated 22.02.2017 passed by the ld. CIT(A), Gwalior for the assessment year 2012-13. The sole ground raised in this appeal is as under: 1. Whether the facts and in the circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of ₹ 7,34,12,020/- made by the Assessing Officer and allowing the benefits of exemption u/s 11 of the l.T. Act to the assessee, as the payments in excess of reasonable limits as supported by comparative instances quoted by Assessing officer, were made and Date of Hearing 08.08.2019 Date of Pronouncement 20.09.2019 treated by h benefits to the persons referred to in section 13(3) of the Act and especially when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wife of Shri S.K. Agrawal Trustee C-Arm Machine 5. Sunil Dalmia B.C OM Sr. Executive (Commercial) Nephew of Shri B.D. Dalmia President/executive Director Salary ₹ 4,56,000/- 4. In paragraph 5, it was mentioned by the AO that these persons are relative of the trustees and therefore, the payment made by these persons is prohibit u/s 13(2c) of the Act. The AO had given the show cause notice to the assessee trust and in the reply the assessee trust has submitted a reply on 12.03.2015 which was reproduced by the AO in the assessment order Page 51 to 54 as under: 5. The AO has mentioned in the assessment order that the salary paid to Dr. Ravi Shankar Dalmia was to the tune of ₹ 54.00 lakh during the financial year was excessive and was not in the tune with the salary paid to other professional namely D.M. (Cardiology) working in Gwalior and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that appellant has made payment to the persons who referred to in section 13(3) of the Act, The AO has made the disallowance because he was of the opinion that excessive payment has been made by the appellant to these persons. (ii) Payment to Dr. Ravishankar Dalmia- Dr. Dalmia is DM Cardiology and HOD of DMBIMR Heart Center. The gross receipts of this heart center in the financial year 2010-11 was ₹ 2,39,60,000/- and the appellant has paid as salary ₹ 36.15 lacs to Dr. Ravi Shankar Dalmia. In the financial year 2011-12 the gross receipts of heart center has increased to ₹ 3,37,14,000/- and the remuneration paid to Ravishankar Dalmia was increased to ₹ 54 lacs. In the assessment order the AO has given the detail of remuneration paid by the different medical institutes of Gwalior to the doctors who are DM Cardiologist. However during the assessment proceeding the AO has not informed about this inquiry to the appellant. The AO has also not mentioned in the assessment order the amount of fees collected by these medical institutes by availing the service of DM Cardiology and has also not stated whether these cardiologist are doing private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him. In the case of the Dr. Sunil Agrawal the appellant has paid as remuneration 40.36% of fees collected on the surgery done by him. As per the Id AR the appellant has made payment to DrAgrawalin similar manner in earlier assessment years. The Id AR further submitted that Shri S.K. Agrawalrelative of Dr. Sunil Agrawal was the trustee during the period from 13.02.2015 to 07.04.2015 i.e. Shri SK Agrawal was not the trustee of the appellant in the previous relevant to assessment year 2012-13 or earlier assessment year . Considering the totality of the fact, I am of the view that the remuneration paid to Dr. Sunil Agrawal is reasonable and the benefit of section 11 cannot be denied due to the payment of remuneration to Dr. Sunil Agrawal by the appellant. (iv) Payment to Dr PratishthaDalmia - As per the Id AR the appellant has paid a part of fees collected on the work of Doctors in Gaynic Department as remuneration to doctors. In the case of MohiniShrivastav the appellant has paid as remuneration 29.56% of fees collected on the surgery etc done by her. Similarly in the case of Dr, Sangeeta Singh the appellant has paid as remuneration 26.77% of fees co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT DR had submitted that the decision of the CIT(A) was based on the written submission filed by the AO where the assessee had relied upon the agreement of Dr. Navin Bhamari of MAX Super specialty Hospital and on the basis of that it was concluded by the ld. CIT(A) that the remuneration paid to Dr. Ravi Shankar Dalmia was a reasonable composition. It was submitted that the finding of the ld. CIT(A) is against the principle of natural justice and there is clear cut violation of Rule 46A by the ld. CIT(A) as report of AO was not called upon on the agreement of Dr Bhamri , during the appellate proceeding. 9.1 In rebuttal, it was submitted by the ld. AR that the Revenue has not filed any ground urging violation of principle of natural justice or challenging the consideration of the agreement by the CIT(A) in violation of Rule 46A. 9.2 Besides that it was submitted by AR that the AO at Page 13 had mentioned that for making the payments of salary of ₹ 54.00 lakh there should be revenue earned by the hospital should ₹ 2.00 crores. It was submitted that revenue received by the assessee for the assessment year under consideration was ₹ 3,37,14,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director Salary ₹ 4,56,000/- 10. It was further submitted by AR that in all the previous assessment year the case of the assessee wasexamined and the payment made by the assessee to the Doctors have been accepted by the AO. Our attention was also drawn to the assessment order based for the A.Y. 2010-11 where the similar payment of ₹ 36.15 lakh was allowed by the revenue collected for an amount of ₹ 2,39,60,000/-. It was submitted that the present appeal filed by the Revenue without any basis and the ld. AR relied upon the following judgment: 1. CIT(Exemption vs. Bhola Ram Educational Society , (SC) 2019 ITL 59 2. Pratap WahiniSamaj Kalyan vs. Dept. of Income Tax, ITA No. 301/Agra/2012 3. Pratap WahiniSamaj Kalyan vs. Dept. of Income Tax, ITA No. 242/Agra/2011 4. PNR Society for Society for Relief Rehabilitation of the Disabled Trust vs. The DDIT (Exemption), ITA No.2729/Ahd/2010 5. Indicula Trust Society vs. CIT (Exemption) ITA No.1216/Del/2013 6. Modern School Society vs. CIT (Exemption) ITA No.1118/JP/2016 7. CIT Exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsultants, pathologist s, laboratories, nursing home, general practitioner and others. IX. The medical practitioner also gets lot of unethical fees from the medicine companies in the form of parties, air tickets and conferences. X. Un-ethical situation of medical profession further aggravatesif it is learned that patient bill taken care of the medical insurance or by employer of the patient and bills of patient. The patient connivance and conclusion with the doctors, inflate the bills and share the bill on the inflated amount. 12. In our view, the fees of the doctor is not only determined by the college from which he had passed out but also dependent upon a. with whom Dr. has done the internship b. his seniority c. competence d. Expertise e. qualification and f. Ability to give results in complicated and difficult cases g. Further, the fees is also determined based on the establishment and equipment on which the doctors is working h. The time involved in the procedure/surgery i. locality where the hospital and working center is situated. 12.1 In the present case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th escort hospital Delhi and thereafter working with the assessee hospital with effect from F.Y. 2009-10. The contribution of doctor is clear from the fact that revenue collected from the A.Y. 2009-10 was 183.26 lakh whereas the revenue collected from the F.Y. 2011-12 was 337.14. The revenue has increased two times in from 2009-10 to 2011-12 and same with the same ration it increased for Dr. Ravi Shankar Dalmia. 12.6 Further we are of the opinion that the finding recorded by the AO based on the comparable instances is wholly incorrect. In our view, the comparable instances brought on by the AO are not at all comparable as the services rendered by the professional like Dr. Ravi Shankar Dalmia cannot be compared with the other DM (Cardiologists) or assistant professional or professor in some medical college or working in other hospital. It is expected from the AO to bring on record the comparable only after bringing on record the comparison between two doctors not only on the basis of the medical degree but also on the basis of expertise etc as mentioned hereinabove. 12.7 In view of above and we also on account of comparable instance of Dr. Navin Bhamar of MAX Hospi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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