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TMI Blog2016 (4) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... 826/JP/2012 "1. The ld CIT(A) has erred on facts and in law in confirming the addition of Rs. 562633.00/- made by A.O. by applying the Net profit rate @ 0.12% on estimated sales of Rs. 29927322.00 in respect of licence of liquor held by assessee by ignoring/not accepting the following contentions of assessee: (i) That he is a member of AOP of Royal wines, Udaipur and therefore entire turnover of assessee is included in turnover of Royal Wines. (ii) Separately estimating and assessing the income of liquor license of assessee in its hand when same is already assessed in case of Royal Wines, has resulted into double taxation. (iii) Income should be assessed on substance not merely on legal form. (iv) Not providing reasonable opportunity to establish that turnover of assessee is included in turnover of Royal Wines and thereby not considering the details filed by Royal Wines. 1.1 The ld Assessing Officer has erred on facts and in law in assessing the share of income from AOP of Royal Wines in hands of assessee and also estimating income of liquor license of assessee." Grounds in Cross Objection CO 26/JP/2015 "1. The ld CIT(A) has erred on facts and in law in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P M/s Royal Wines. The information obtained from the excise department and the TCS certificate, the details of purchase and sale had been provided there. As per TCS certificate, the total purchase of the liquor during the year were Rs. 1,23,84,855/- in respect of shop No. 6/65 and Rs. 1,25,54,540/- in respect of shop No. 6/58. Thus, the total purchases were made at Rs. 2,49,39,435/-. In point No. 5.13 of the license, it has been mentioned that the licensee can sell IMFL/Beer by taking maximum gross profit of 20% on purchase cost. Hence, total turnover was calculated by the Assessing Officer at Rs. 2,99,27,322/- in the year under consideration. As per rule and regulation of the excise department, the assessee had to submit stock statement of liquor/beer by the licensee. The assessee had admitted in his statement dated 22/12/2010 that the details of monthly statement was kept by AOP. The books of account relating to the liquor business were not produced by the assessee. The assessee also admitted in his statement that he had no knowledge about the monthly rent given to the shops and also about the employees of the shop. In absence of books of account, purchase and sale bill, vouchers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imum discount allowed was 20%. (ii) The assessee was required to pay license fee for the entire year. (iii) The assessee was required to pay permit fee. (iv) The assessee was also required to pay freight & transport for the goods purchased. (v) Apart from the above, assessee has to pay rent of the shop, electricity & water expenses, salaries of employees and other misc. expenses. In similar line of trade, most of the traders have shown profits below 2%. Considering the above, in my opinion, it would be fair 86 reasonable to estimate the income of assessee @ 2% of the turnover. The same comes to Rs. 5,98,546/-. It is also seen that the credit for TCS has already been allowed in the case of AOP, M/s Royal Wines so. Assessee will not be entitled for credit of TCS. It is seen that M/s Royal Wines declared Net Profit @ 0.12% and this included profits related to assessee on its turnover. As the assessee's turnover was Rs. 2,99,27,322/- it can be presumed that part of the profits, amounting to Rs. 35,913/- (@0.12%) were included in the income of M/s Royal Wines. To avoid Double Taxation, it is considered fair & reasonable to exclude this amount from the income of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law and the same be deleted. He further submitted that the AO has wrongly stated that in earlier years the assessee was running the liquor shop in his individual capacity. In fact in AY 06-07 an 07-08, the assessee has run these shops in the partnership firm. This is evident from the Trading and P&L A/c for AY 06-07 reproduced at Pg 9 of the assessment order where expenditure on payment of interest and remuneration to partners is debited. In AY 07-08, the assessee has declared remuneration and interest from partnership firm in his return of income. Further, the N.P. rate for 06-07 before remuneration and interest to partners is 1.28%. Therefore, assessing the income of the two shops in the hands of the assessee on an incorrect assumption of facts and applying N.P. rate of 12% is incorrect and unjustified. The ld AR has further submitted that the AO, Udaipur in various cases of liquor, where shops were allotted to the individual members but they form an AOP, assessed the income of such individual shops in the hands of the AOP and not in the hands of the individual members. Further, the credit of TDS in the name of individual members was allowed to the AOP. The assessment of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven any justification for applying 12% net profit on the estimated sale in the hands of licensee. In case of AOP, the case has been scrutinized U/s 143(3) of the Act where income disclosed by the AOP has been accepted by the Assessing Officer. The income result has been accepted by the Assessing Officer. Copy of scrutiny assessment has been placed in the paper book. The findings given by the ld CIT(A) are also not on merit in estimating the income @ 2% as in the hands of AOP, same income has been taxed by holding that Assessing Officer of the AOP namely Royal Wines has not considered the issue of license issued displayed at the shop and TCS made by the excise department. The identical issue decided by the Coordinate Bench of Jodhpur ITAT in the case of ACIT Vs. M/s Krishan Lal Meel & Party alongwith other cases in ITA No. 370/Jodh/2015 and other ITAs order dated 04/09/2015 for A.Y. 2009-10 wherein the issue was TCS in the name of individual but credit was taken by the AOP and TCS/TDS credit have been deducted in the name of individual, has been allowed to the AOP. When the Assessing Officer in scrutiny has accepted the assessee's income as such and no disallowance on account of net ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .O. assessing the AOP has not given any such finding. The findings given by the, A.O. in the case of the assessee were restricted to transfer of licenses issued to assessee. I have already held that licenses were not transferred in the name of AOP. I have also held that income from shops licensed to the assessee has to be taxed in the hands of assessee himself. However, none of these findings would mean that the creation of AOP itself was illegal. The A.O. has not examined the availability of cash with AOP and instead harped on other irrelevant facts. I have gone through the cash book of Royal Wines and it was seen that there was availability of sufficient funds with the AOP and the transaction of Rs. 67,00,000/- was duly recorded. I have also examined the issue of return of part of the money to members of AOP and not to the AOP itself. It was explained that the money was intended to be returned to the AOP through its members. In my opinion, it is irrelevant how the money was returned. What was relevant was the initial advancement of the money to the assessee and whether the source of the same was explained or not. The A.O. has not brought anything on record to disprove th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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