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TMI Blog2021 (9) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... brought on record any other evidence to support his finding that the assessee has received professional charges in cash from Apollo Hospitals. Hon'ble Supreme Court in the case of M/s.Andaman Timber Industries [ 2015 (10) TMI 442 - SUPREME COURT] as categorically held that not allowing assessee to cross examine witnesses by the adjudicating authority, though statements of those witnesses were made on the basis of impugned order is a serious flaw, which makes the order nullity, inasmuch as it amounted to violation of principles of natural justice, because of which the assessee was adversely affected. Assessing Officer has erred in making additions towards unaccounted professional charges received in cash from Apollo Hospitals on the basis of statement of a third party, without providing opportunity of cross-examination to the assessee. - Decided in favour of assessee. - I.T.A.No.852 & 853/Chny/2020 - - - Dated:- 8-9-2021 - Shri Duvvuru RL Reddy, Judicial Member And Shri G. Manjunatha, Accountant Member For the Appellant : Mrs. R.Maheswari, Advocate For the Respondent : Mr. G.Johnson, Addl.CIT ORDER PER G.MANJUNATHA, AM: These two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AY 2011-1 2, the CIT (Appeals) held the recording of sworn statement without notice to Appellant and opportunity to cross-examine is a serious flaw, wherein the Assessing Officer herein had relied upon the very same sworn statement of witness dated 05.01.2015 / 05.01.2016. These shortcomings constitutes serious flaw and the unilateral examination of witness does not hold good in law and is against the settled principles of law. 3. Brief facts of the case are that the assessee is a General Surgeon by profession practicing at M/s. Apollo Hospital, Chennai as consultant and receives consultancy fees . The consultancy fees charged on patients is included in Apollo Hospital billing system which also includes consultation charges on patients in master health checkup, surgery consultations, patients under insurance cover and postoperative care. The Apollo Hospital collects all fees directly from patients and after deducting applicable TDS on professional charges remits balance amount payable to the assessee vide cheque / RTGS . All registers required to be maintained under Rule 6F of I.T Rules, 1962, are maintained by Apollo Hospitals. The assessee has declared consultation charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is in appeal before us. 7. The learned A.R for the assessee submitted that the learned CIT(A) has erred in sustaining additions made by the Assessing Officer towards unaccounted professional charges received from Apollo Hospitals, without appreciating fact that the Assessing Officer has relied upon oral evidence given by one of the employees of Apollo Hospitals, without confronting those evidences and also an opportunity of cross examination to the assessee contrary to the principles of natural justice. The learned A.R further submitted that the Assessing Officer has made additions solely on the basis of statement of an employee recorded during the course of search in the case of Apollo Hospitals, but could not gather any other evidences to disprove claim of the assessee that he has not received professional charges in cash, other than what was received by cheque/ RTGS. The AR further referring to decision of learned CIT(A) for assessment year 2011-12 in ITA No.127/CIT(A)- 2/2018-19 dated 22.08.2019 submitted that when the CIT(A) has accepted fact that additions made by the Assessing Officer solely on the basis of statement a third party, without providing opportunity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his finding that the assessee has received professional charges in cash from Apollo Hospitals. We further noted that although, there is a difference in professional charges admitted by the assessee in return of income for impugned assessment years, when compared to professional charges quantified by the Assessing Officer on the basis of number of patients registered with the name of assessee in Apollo Hospitals, but the assessee has explained difference and submitted that he had treated certain patients without collecting charges and further, some of the patients though registered with Apollo Hospitals, but did not turn up for treatment. In our considered view, explanation given by the assessee that additions cannot be made on the basis of number of patients registered with Apollo Hospitals appears to be reasonable and bonafide. The Assessing Officer never disproved claim of the assessee with any evidences, but went on to make additions only on the basis of statement of a third party, that too without providing evidences and opportunity of cross examination to the assessee in violation of principles of natural justice. It is well settled principles of law by the decision of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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