Tatia, J. - (1.) THE appellant has challenged the order dated 20.8.2008 passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur whereby the appeal of the appellant was dismissed, which was preferred to challenge the order dated 29.8.2006 passed by the CIT(A)-II, Bikaner in relation to the assessment year 2003-04 for the respondent-assessee as CIT (A)-II, Bikaner partly allowed the assessee's appeal.
(2.) ACCORDING to the appellant, the assessee submitted its return of Income Tax at NIL income alongwith C/F unabsorbed depreciation of Rs.38,06,296/-. The assessment under Section 143(3) was completed on 24.3.2006 at income of Rs.4,98,415/- after adjusting unabsorbed depreciation of Rs.38,06,296/-. The AO made various additions, details of which are given in para no.1 of the appeal in total Rs.43,04,711/-. The said assessment order dated 24.3.2006 was challenged by the assessee in appeal before the Commissioner of Income Tax (Appeals), Bikaner. The CIT (Appeals) vide order dated 29.8.2006 allowed the appeal of the assessee and deleted the additions made by the AO of Rs.40,07,711/-. The appellant being aggrieved preferred further appeal before the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur, but the appellant's said appeal was dismissed by the tribunal vide order dated 20.8.2008, hence, this appeal has been preferred by the department under Section 260A of the Income Tax Act, 1961 to challenge the above 2 orders. Learned counsel for the appellant submitted that the tribunal grossly erred in dismissing the appeal. We considered the submissions of learned counsel for the appellant and are of the considered view that CIT (Appeal) and the tribunal after considering the factual aspect of the matter regarding addition of Rs.35,97,002/- made by the AO on account of receipts from OT charges observed that "...the issue of estimation of OT charges, it is undisputed fact that the Doctors of the assessee have categorically observed in the statement before the Assessing Officer that the expenditure incurred by the hospital out of collection of operation theatre expenses will be around 10-15%..." After examining the factual aspect, the tribunal came to the conclusion that assessing authority has taken the average of these two percentages but applied the wrong amount of operation theatre expenses claimed by the assessee at Rs.7,36,664/-, and the opening stock of operation theatre, medicines as well as closing stock of the same are necessarily to be taken into account for arriving at the net amount of OT expenses incurred by the assessee during the year under consideration. It will be worthwhile to mention here that the assessee has shown the OT receipts of much more than the amount of Rs.38,27,182/- and in view of the above fact and after appreciation of the evidence, the contention of the appellant was rejected. We are of the considered view that the present appeal involves no question of law and the finding given by the CIT (Appeals) and the order passed by the Tribunal are based on evidence and involves question of fact and satisfaction of the above two authorities is on the basis of the relevant material. Therefore, we do not find any merit in this appeal and the same is hereby dismissed.;