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TMI Blog2017 (6) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... ord any specific reason for not accepting the GP shown by the assessee. The only reason by the Assessing Officer is the direction obtained from ACIT under Section 144A of the Act regarding assessment to be made in the hand of the assessee-individual. These directions are based on the data made available by KSBCL and therefore there is always a scope of tolerance range of fluctuation of GP of individual cases and if the assessee’s GP is falling within the reasonable range of fluctuation of GP then no addition can be made by taking GP on estimate basis. Hence the GP addition made by the authorities below is deleted. Addition made on account of difference between the sales shown in VAT return and regular books of accounts - Held that:- It is noted that the difference of sales as per the VAT Return and books of accounts has not been disputed by the assessee therefore the sales shown in the VAT Return cannot be ignored. However the entire sale cannot be treated as income of the assessee and therefore only GP addition of such excess sale as per the VAT Return has to be added as income of the assessee. The Assessing Officer is directed to make the addition by taking the GP as declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular books, which is correct which could not be reconciled under the facts and in the circumstances of the appellant's case as income of the appellant 4.1 Without prejudice to the above, the learned CIT[A] is not justified in treating the entire difference as income and he ought to have taxed only the net profit embedded in the difference in sales as income. 5. The learned CIT[A] ought to have telescoped the addition made towards inflation in purchases, difference in the sales with the GP addition and should have made a single addition by telescoping all these into one. 6. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies herself liable to be charged to interest u/s 234-B and 234- D of the Act, which under the facts and in the circumstances of the appellant s case deserves to be cancelled. 7. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs. 3. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision oi the Apex Court in the case oi Biharilal Jaiswai report in 217 ITR 148 and CIT Vs. Rangeela Ram reported in 254 ITR 230 and in this connection. I beg to submit to: your Honour s kind consideration and the ratio of these two decision and the latest decision on this subject of the Hon'ble Karnatalra High Court in the case of CH V. 88 Pannalkar a Co reported in 61 DTR 296. which is enclosed herewith. far from supporting your case supports my claim that the income which arose to me as the detecto irertha or as a member representing the HUF of the business carried on by the joint famiiy in my name should not be assessed in my hands as my separate property but as the income of my joint family. To appreciate my contentions in this regard, the relevant facts require to be stated once again in addition to what i have submitted in detail by my letter dated: 11-11-2011, which is resting with your Honour. 3 I am widow of late Sri PG Govindaswamy. who was a kartha of a Hindu Joint Family of which myself and my sons are the other co-parceners. My husband during his lifetime was assessed to tax in two statuses. the business carried under the name and style of We Pisale Wine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess as well as the license held in my name belongs to the family and it is the family property accordingly, notwithstanding the license stood in my name. the income from the business is assessable in the hands joint family. Unlike the case of a firm where registration could not be granted if the firms is formed in violation of the law. there is no such prohibition under the income-tax Act for the joint family to hold a Excise License in the name of any one of the members to carry on the business for the benefit of the family. Therefore. the joint family, which is an assessable entity oi which I am the member. carries on the business beneficially in my name and the income is assessable in the hands of the joint family and not in my hands. These provisions are not applicable in the case at transfer of license from one member of the HUF to another member of the HUP. i also rely on the ratio of the decision of the Hon ble Supreme Court in the case of CHARANDAS HARIDAS Vs. CIT reported in 39 ITR 202. In that view of the matter I request your Honour to refrain from clubbing such income and I hereby object your Honour's proposal for melting the assessment of the joint family s income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icense in the name of the late husband of the assessee was transferred in the name of the assessee by the authorities because of the law of succession and it was not the transfer by the holder itself. The Hon'ble jurisdictional High Court in the case of CIT Vs. S B Pannalkar and Co . (supra) having considered and understood the decisions of Hon'ble Supreme Court in the case of Biharilal Jaiswal Vs. CIT (supra) as well as in the case of CIT Vs. Rangila Ram Others (supra) has observed and held in paras 8 13 as under : 8 . Therefore, ultimately it is the intention of the parties as gathered from the facts of the case which would determine the eligibility for deduction . No person can carry on liquor business without a licence or permission . Such licence granted is not transferable . Even if transferable, it would be subject to conditions . A partnership firm to carry on business needs a licence or permission from the authority under the Excise Act . If an individual transfers the said licence to a partnership firm, it has to be in accordance with law . Otherwise the transfer would be contrary to section 23 of the Indian Contract Act, and is void . Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer before the CIT (Appeals). The CIT (Appeals) granted part relief and directed the Assessing Officer to adopt GP at 14%. 10. Before the Tribunal, the learned Authorised Representative has submitted that when the assessee itself has shown GP at 11.43% then making addition by taking an estimate of GP at 14% is not justified. He further submitted that the authorities below have not brought on record any specific reason for not accepting the GP shown by the assessee and contended that the CIT (Appeals) is not justified in directing the Assessing Officer to adopt GP at 14% GP at 11.43% be retained. 11. On the other hand, the learned Departmental Representative has submitted that the Assessing Officer has considered the data made available by the KSBCL and therefore the rate adopted by the CIT (Appeals) is justified. 12. Having considered the rival submissions as well as the relevant material on record, it is noted that for the year under consideration the assessee has offered the income which is equal to GP at 11.43%. Accordingly when the assessee itself has shown GP at 11.43% then making addition by taking an estimate of GP at 14% is not justified as there is no signifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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