K.Ponnusamy, Salem V. ACIT, Salem

CO 102/CHNY/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3359 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 29-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASUDEVAN
• Section: 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1368/MDS/2017 & C.O. NO.102/MDS/2017 (IN ITA NO.1368/MDS/2017) ' (' / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, SALEM. V. SHRI K. PONNUSAMY, NO.100, AMMAPET MAIN ROAD, SALEM 636 001. PAN : AEFPP 5814 E (*+/ APPELLANT) ( RESPONDENT & CROSS OBJECTOR) ./ ITA NO.1329/MDS/2017 & C.O. NO.101/MDS/2017 (IN ITA NO.1329/MDS/2017) ' (' / ASSESSMENT YEAR : 2011-12 THE INCOME TAX OFFICER, WARD 1(1), SALEM. V. SMT. K. PAVAYEE, 99/100, AMMAPET MAIN ROAD, SALEM 636 001. PAN : AKXPP 9536 H (*+/ APPELLANT) ( RESPONDENT & CROSS OBJECTOR) *+ , - / APPELLANTS BY : SHRI AR.V. SREENIVASAN, JCIT ./*+ , - / RESPONDENTS BY : SHRI T. VASUDEVAN, ADVOCATE 0 , 1$ / DATE OF HEARING : 21.12.2017 2!( , 1$ / DATE OF PRONOUNCEMENT : 28.12.2017 2 I.T.A. NOS.1368 & 1329/MDS/17 C.O. NOS.101 & 102 /MDS/17 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE REVENUE HAS FILED THE APPEALS FOR ASSESSMENT YEAR 2011-12 IN RESPECT OF TWO INDEPENDENT ASSESSEES. B OTH THE ASSESSEES HAVE FILED CROSS-OBJECTIONS. SINCE COMMO N ISSUE ARISES FOR CONSIDERATION IN THE APPEALS AS WELL AS CROSS-O BJECTIONS, WE HEARD THE APPEALS AND CROSS-OBJECTIONS TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. SHRI AR.V. SREENIVASAN, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEES ARE DE ALERS IN GRAPES. THE ASSESSEES CLAIM 3% OF TURNOVER AS PROFIT. ACCO RDING TO THE LD. D.R., THE ASSESSING OFFICER, HOWEVER, FOUND THAT NA TIONAL SURVEY REPORT CONDUCTED IN SANGLI & NASIK PUBLISHED IN 200 5, IT WAS REPORTED THAT MIDDLE MEN, NAMELY, COMMISSION AGENTS , EARN 40% OF THE SALE PRICE. THE ASSESSEES HAVE ALSO STATED THA T THE WHOLESALE COMMISSION AGENTS GET 10% AS COMMISSION. THEREFORE , ACCORDING TO THE LD. D.R., THE ASSESSING OFFICER FIXED THE CO MMISSION AT 30% INSTEAD OF 3% CLAIMED BY THE ASSESSEES. ON APPEAL BY THE ASSESSEES, THE CIT(APPEALS) RESTRICTED THE PROFIT A T 5% INSTEAD OF 30% FIXED BY THE ASSESSING OFFICER. ACCORDING TO T HE LD. D.R., ONE 3 I.T.A. NOS.1368 & 1329/MDS/17 C.O. NOS.101 & 102 /MDS/17 SHRI K. LAKSHMANAN WAS EXAMINED UNDER SECTION 131 O F THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') IN THE CO URSE OF ASSESSMENT PROCEEDING FOR THE ASSESSMENT YEAR 2009-10 IN ONE O F THE GROUP CASE OF SHRI P. RAMESH. HE ADMITTED THAT THE RETAI LER WILL TAKE 10% OF THE COMMISSION AND WHOLESALER TAKES 30%. THERE FORE, ACCORDING TO THE LD. D.R., THE ASSESSEES BEING WHOL ESALE AGENTS, 30% WAS FIXED BY THE ASSESSING OFFICER, HENCE, THE CIT(APPEALS) IS NOT JUSTIFIED IN ADOPTING THE COMMISSION TO 5%. 3. ON THE CONTRARY, SHRI T. VASUDEVAN, THE LD.COUNS EL FOR THE ASSESSEES, SUBMITTED THAT IN THE CASE OF SHRI RAMES H, IN WHOSE CASE SHRI LAKSHMANAN WAS EXAMINED BY THE ASSESSING OFFICER AND THAT WAS THE SUBJECT MATTER OF THE APPEAL BEFORE TH IS TRIBUNAL IN I.T.A. NO.1189/MDS/2017, THIS TRIBUNAL BY ORDER DAT ED 27.10.2017, FIXED THE COMMISSION AT 4% INSTEAD OF 5% FIXED BY T HE CIT(APPEALS). ACCORDING TO THE LD. COUNSEL, BOTH T HE ASSESSEES HAVE FILED CROSS-OBJECTIONS TO THE EFFECT THAT THE COMMISSION IS ONLY AT 3% AND NOT 5% AS FIXED BY THE COMMISSIONER. THE REFORE, HE PRAYED THAT THE COMMISSION MAY BE FIXED AT 3%. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEES ARE DEALERS IN GRAPES. THE ASSESSEES CLAIM 3% OF T URNOVER AS 4 I.T.A. NOS.1368 & 1329/MDS/17 C.O. NOS.101 & 102 /MDS/17 PROFIT. HOWEVER, THE ASSESSING OFFICER FIXED THE P ROFIT AT 30%. ON APPEAL BY THE ASSESSEES, THE CIT(APPEALS) REDUCED T HE SAME TO 5%. ON AN IDENTICAL SITUATION, LD. SINGLE MEMBER O F THIS TRIBUNAL IN THE CASE OF ITO V. SHRI P. RAMESH IN I.T.A. NO.1189 /MDS/2017 FOUND THAT ON IDENTICAL CIRCUMSTANCES, THE PROFIT S HALL BE AT 4%. SHRI P. RAMESH IS ALSO ONE OF THE ASSESSEES IN GROUP CAS E ALONG WITH THE PRESENT ASSESSEES. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT SINCE THE FACTS ARE IDENTICAL AS THAT OF SHRI P. RAMESH, THE COMMISSION CAN BE FIXED AT 4% INSTEAD OF 5% BY THE CIT(APPEALS) IN THE INTEREST OF JUSTICE. ACCORDING LY, ORDERS OF BOTH THE AUTHORITIES BELOW ARE MODIFIED. THE ASSESSING OFFICER IS DIRECTED TO TAKE 4% AS COMMISSION INCOME OF THE ASS ESSEES. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. HOWEVER, BOTH THE CROSS-OBJECTIONS OF THE ASSESSEES ARE PARTLY ALLOWED. ORDER PRONOUNCED ON 28 TH DECEMBER, 2017 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 28 TH DECEMBER, 2017. 5 I.T.A. NOS.1368 & 1329/MDS/17 C.O. NOS.101 & 102 /MDS/17 KRI. , .156 76(1 /COPY TO: 1. *+ /APPELLANTS 2. ./*+ /RESPONDENTS 3. 0 81 () /CIT(A), SALEM 4. CIT, SALEM 5. 69 .1 /DR 6. :' ; /GF.