Acit Salem v. K Ponnusamy Salem

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