liquor sales net profit estimated at 3% case laws, Income Tax

[TELUGU SATYANARAYANA]

sir

i want the latest judgment on liquor sales net profit estimated at 3% by various tribunala, high courts and supreme court. please do the needful immediately.

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[DR.MARIAPPAN GOVINDARAJAN]

It is somewhat difficult job since one has to search for the same.

[YAGAY and SUN]

Income Tax Appellate Tribunal - Hyderabad

G. Sudershan, Hyderabad vs Assessee

             IN THE INCOME TAX APPELLATE TRIBUNAL                HYDERABAD BENCH 'A', HYDERABAD     BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER            AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER                     ITA No.126/Hyd/2012                  (Assessment year 2007-08)Shri G.Sudarshan, Hyderabad          V/s   Income Tax Officer, Ward-6(4),                                           Hyderabad( PAN - ADEPG 7471 J )           (Appellant)                                  (Respondent)                   Appellant by       :    Shri B.Shantikumar                  Respondent by       :    Shri K.Vishwanatham                  Date of Hearing           2.5.2012                  Date of Pronouncement      4.5.2012                                ORDER

Per D.Karunakara Rao, Accountant Member:

This appeal by the assessee is directed against the order of the Commissioner of Income-tax(Appeals)-III, Hyderabad dated 28.11.2011 for the assessment year 2007-08.

2. The first issue involved in ground No.1 of this appeal relates to estimation of profit of the assessees from the business of retail trade in liquor.

3. Facts of the case in brief are that the assessee is an individual, deriving income from business of running a wine shop in the name of M/s. Sri Sai Wines. The assessing officer, in the course of assessment proceedings under S.143(3) of the Act, found that that the assessee during the previous year made purchases of ₹ 6,13,05,766 from APBCL and has shown sales at ₹ 6,35,67,253. He further noted that as per G.O.Ms. No.184 dated 7.2.2005 issued by the Revenue Sri G.Sudershan Hyderabad authorities of Government of Andhra Pradesh, the retailer's margin, i.e. gross profit, on sale of ordinary liquor products is 27% and on medium and on premium varieties of liquor the same is 20%. He further noted that such margin on beer is 25%. He also noted that the cost of goods sold in the case of the assessee is ₹ 5,71,93,637 and the gross profit margin shown by the assessee on sale figure is 11.14%, which according to him is very low. In the absence of proper evidence furnished by the assessee, observing that the assessee was unable to produce the evidence for its turnover in the form of sale bills, etc., the assessing officer rejected the book results and applying a rate of 18% on the cost of goods sold amounting to ₹ 5,71,93,637, estimated the sales made by the assessee at ₹ 6,874,88,492. Since the assessee has shown sales at ₹ 6,35,67,253, he added the difference of ₹ 39,21,239 towards suppression of sales to the returned income of the assessee.

4. On appeal, the CIT(A) confirmed the said addition made by the assessing officer. Hence, assessee is in second appeal on this issue.

6. We heard both the parties. We find that on the issue of estimation of reasonable profit in the case of assessees engaged in retail trade in liquor, the coordinate benches of this Tribunal in the recent past, following the decision of this Tribunal in ITA No.591/Hyd/2011 and C.O. therein, in the case of ITO Ward 9(3), Hyderabad V/s. Kanakadurga Wines, Hyderabad dated 28.7.2011, have been consistently holding, as in ITA No.1997/Hyd/2011 & CO No.28/Hyd/2012 in the case of M/s. Lakshmi Srinivasa Wines, Nalgonda and others, vide order dated 30.3.2012, to which one of us, viz. the Accountant Member, is a party that estimation of net profit of the assessees in this line of business at 3% of the purchases or stock put for sale during the year, would be reasonable. In this view of the matter, following the consistent view taken by this Tribunal in similar caes, we set aside the impugned ordersSri G.Sudershan Hyderabad of the lower authorities, and direct the assessing officer to estimate the net profit of the assessee at 3% of the purchases or stock put for sale during the year, subject to the condition that the income so estimated shall not go below the returned income. Consequently, first ground of the assessee in this appeal is partly allowed.

7. Grounds No.2 of the assessee in this appeal read as follows-

"2. The assessing officer and CIT(A) both erred on facts and law in treating the cash gift of ₹ 16,50,000 received from the assessee's father as from unexplained sources of income taxable u/s. 68 of the IT Act 1961."

8. Learned counsel for the assessee, reiterating the contentions urged before the lower authorities submitted that the cash gift in question has been received by the assessee form his father, and in view of the fact that there is no dispute either with regard to the identity of the person giving the gift or the source of the money for the assessee, there is no justification for the addition made by the assessing officer, and the CIT(A) was not justified in confirming the same. He also placed reliance on the decision of the jurisdictional High Court in the case of Indwell Constructions (232 ITR 776), and submitted that the income of the assessee having been determined by the assessing officer, resorting to estimation on rejection of book results, there is no scope for any other addition, being made separately.

9. The Learned Departmental Representative on the other hand, strongly supported the orders of the lower authorities, and submitted that except for the identity of the person giving the gift, the assessee has failed to establish either the credit-worthiness of his father or the genuineness of the gift, and as such, the addition made by the assessing officer and confirmed by the CIT(A), deserves to be upheld. He also Sri G.Sudershan Hyderabad placed reliance on the decision of the Hon'ble Supreme Court in the case of CIT V/s. Devi Prasad Viswanath Prasad (72 ITR 194).

10. We have considered the rival submissions and perused the material available on record. It is not the case of the Revenue that the assessee has any source of income, apart from his retail business in liquor. The business income of the assessee, having been determined by the assessing officer, by resorting to estimation, on rejection of book results, as held by the jurisdictional High Court in the case of Indwell Constructions (supra), there is no scope for any other addition being made by the assessing officer separately. Notwithstanding that, it is also found from the impugned orders of the lower authorities that the person from whom the assessee has claimed to have received the gift is identifiable and had a distinct and definite source of income. The only objection of the Revenue, which led to the disbelieving of the claim of the assessee is that so much of cash could not have been kept at house for such a long time. Even though keeping of so much of cash for such a long time could not be proved by the assessee, it is not impossible and therefore, one possible explanation; consequently, the version of the assessee could not be disbelieved. We accordingly delete the addition of ₹ 16,50,000, allowing the ground of the assessee on this issue.

11. Grounds No.3 of the assessee in this appeal read as follows-

"3. The assessing officer and CIT(A) both erred on facts and law in disallowing the expenditure of ₹ 31,671 incurred in purchasing of carry bags."

12. We heard both sides and perused the orders of the lower authorities and other material on record. In view of the settled position of law as laid down by the jurisdictional High Court in the case of Indwell Constructions (supra) that once business income of the assessee is determined by the assessing officer, by resorting to estimates, on Sri G.Sudershan Hyderabad rejection of book results, there is no scope for any separate addition, we find no justification for the disallowance of ₹ 31,671 made by the assessing officer and confirmed by the CIT(A). Consequently, the addition of ₹ 31,671 is deleted and this ground of the assessee is allowed.

13. In the result, assessee's appeal is partly allowed.

            Order pronounced in the court on 4.5.2012                 Sd/-                                   Sd/-             (Saktijit Dey)                    (D.Karunakara Rao)           Judicial Member.                    Accountant Member.Dt/- 4th    May, 2012Copy forwarded to:

1. Shri G.Sudershan, C/o. Shri T. Shanker, Advocate & Tax Consultant, H.No.3-5-574, Flat No.101, City Homes Apartments, Vittalwadi Lane, Narayanguda, Himayatnagar, Hyderabad 29.

2. Income-tax Officer, Ward-6(4), Hyderabad

3. Commissioner of Income-tax(Appeals) III

4. Commissioner of Income-tax II, Hyderabad

6. Departmental Representative, ITAT, Hyderabad B.V.S.

[YAGAY and SUN]

Income Tax Appellate Tribunal - Hyderabad

M/S Mallikarjuna Bar & ... vs Department Of Income Tax on 17 May, 2012

        IN THE INCOME TAX APPELLATE TRIBUNAL           HYDERABAD     "A" BENCH, HYDERABADBEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND         SHRI SAKTIJIT DEY, JUDICIAL MEMBER                   ITA No.186/Hyd/2012                     Asst. Year: 2007-08ITO, Ward-9(3),                Vs   M/s. Mallikharjuna BarHyderabad.                          & Restaurant,                                    Chaitanyapuri,                                    Hyderabad.                                    PAN:AAMFM 5270 A     (Appellant)                    (Respondent)        Appellant by           : Sri K. Viswanatham       Respondent by           : Shri Srinivasa Murthy             Date of hearing           : 17-05-2012         Date of Pronouncement         : 28-06-2012                          ORDER

PER SAKTIJIT DEY J.M.

This appeal preferred by the Revenue is directed against order dated 25-11-2011 of the CIT (A)-VI, Hyderabad and it pertains to the assessment year 2007-08.

2. The revenue has filed appeal basically challenging the order passed by the CIT (A) directing to estimate the net profit from sale of liquor at 3% by following the decision of ITAT in ITA No.591/Hyd/2011 dated 28-7-2011 in the case of M/s. Kanaka Durga Wines.

ITA No. 186 of 2012 M/s. Mallikharjuna Bar & Restaurant, Hyd.

3. Brief facts are, the assessee is a Bar and Restaurant. For the assessment year 2007-08, it filed its return of income declaring a total income of ₹ 2,57,060/-. Initially, return was processed u/s 143(1). Subsequently, the assessment was reopened by issuing a notice u/s 148 on 29-6-2009 on the reason that the assessee had understated the sales to the extent of ₹ 45,62,681/-. In course of reassessment proceedings, the assessee appeared and produced its books of account and other documents like purchase bills, vouchers for expenses as called for by the AO. As has been observed by the AO, the assessee did not produce any sale bills and therefore the AO was not willing to accept book results in the absence of sale bill and proposed to reject the book results applying the provisions of section 145 to which the assessee's AR agreed. The AO found from the Profit & Loss a/c enclosed to the return and the assessee had declared purchases at ₹ 2,10,27,958/- and sales at ₹ 2,28,28,192/- respectively in respect of liquor and beer items. In view of non-verifiable nature of sales admitted in the return due to non production of sale bills, the AO proposed to estimate profit at the rate of 27% on the cost of goods sold in respect of liquor and beer as per the Government of Andhra Pradesh, Prohibition and Excise- Excise Policy for the year 2005- 06,Revenue (Excise-II) Department, GOMS No.184 dated 7-2-2005. As has been observed by the AO though the assessee's AR agreed for estimation of ITA No. 186 of 2012 M/s. Mallikharjuna Bar & Restaurant, Hyd. income u/s 145 of the Act but was not willing to accept estimation of profit at 27% on the total cost of goods sold in respect of liquor and beer items on the reasoning that the assessee firm has not sold anything in the category of ordinary liquor and whatever liquor was sold by the firm was in the range of medium and premium quality.

4. The AO after verifying the data furnished by the assessee found that the cost of liquor items in the category of medium and premium variety is ₹ 1,26,99,970/- and cost of beer item is ₹ 81,31,471/- for goods sold during the previous year. The AO by following the APBCL Memorandum, determined the sale value of liquor items by estimating the profit at the rate of 20% for medium and premium liquor item and 25% for beer item which worked out to ₹ 2,54,04,320 when compared to the gross sales of liquor admitted by the assessee in the return to the tune of ₹ 2,28,28,192 a difference of ₹ 25,76,110/- arose which was treated as understatement of sales by the AO. After taking into consideration the assessee's contention that the sale of empty bottles admitted at ₹ 3,73,085 in the return of income is to be reduced from the turnover and it is incidental to liquor trade. The net understatement of sales was determined at ₹ 22,03,025/- which was added to the total income of the assessee. The assessee being aggrieved of such addition filed an appeal before the CIT (A). Before theITA No. 186 of 2012 M/s. Mallikharjuna Bar & Restaurant, Hyd. CIT (A), the assessee contended that the Bar and Restaurant is located in a mass area and most of the visitors are very cost conscious and therefore to achieve the turnover, assessee was constrained to offer the liquor with lesser margins. The premises of the Bar is in a very old building belonging to one of the partners' family and as such the major saving is there with regard to the rent of the premises. The Bar is an ordinary Bar without any kind of ambience like Air Conditioning, neat atmosphere, best flooring, furniture and interior decoration as the kind of visitors focused by the management are from lower strata of the society and also lower middle income group and the food articles supplied are at grass root price and some time visitors even do not prefer to have any food articles while consuming liquor. The assessee contended that keeping in view these facts, the estimation of profit arrived at by the AO is not justified. In course of hearing before the CIT (A) the assessee also relied upon a decision of ITAT, Hyderabad Bench in ITA No.591/Hyd/2011 dated 28- 7-2011 in the case of M/s Kanaka Durga Wines. The CIT ((A), Hyderabad Bench directed the AO to estimate net profit at 3% of the purchases or stock put for sale during the year subject to assessed income not less than the returned income.

5. The learned DR contended before us that the decision of the ITAT in case of M/s Kanaka Durga ITA No. 186 of 2012 M/s. Mallikharjuna Bar & Restaurant, Hyd. Wines does not apply to the facts of the present case and hence the CIT (A) should not have directed for estimation of profit at 3%. The learned DR contended that in case of Kanaka Durga Wines, it is an exclusive wine shop whereas the assesseee is operating a Bar as well as Restaurant where food articles were also sold. Therefore, the profit element will not be the same in the case of exclusive wine shop. The leaned DR further contended even in case of exclusive wines, the ITAT recently has directed for estimation of profit at 5%.

6. The learned AR, on the other hand, submitted that though the petitioner runs a Restaurant along with Bar but in reality the major sales is of liquor item and the sale of food articles is of very negligible amount may be about 5% of the total turnover. The learned AR reiterating its contentions raised before the revenue authorities contended that most of the customers are from the lower strata of the society and looking at the competition in this field, the assessee has to sell liquor by keeping less margin of profit. The learned AR contended that sale of food item being of very negligible amount, the estimation of profit at 3% directed by the ITAT, Hyderabad Bench in Kanaka Durga Wines will also apply to the facts of the instant case.

7. We have heard rival contentions of the parties and perused the material on record. The ITAT, ITA No. 186 of 2012 M/s. Mallikharjuna Bar & Restaurant, Hyd. Hyderabad Bench in the Kanaka Durga Wines ( ITA No.591/Hyd/2011 dated 28-7-2011) has held in the following manner:-

"5. We have considered the submissions of the rival parties and perused the material available on record. It is an admitted fact that the maximum retail price of the liquor products is fixed at 30% over the cost price of the assessee as per the understanding with an admitted fact about its inability to maintain the cash sales bills and accordingly the books of accounts maintained by the assessee cannot be relied upon. Under these circumstances, we are of the considered view that the lower authorities are correct and justified in rejecting the books of accounts under section 145 of the Act. We find that the assessing officer has rightly adopted the sale price at 30% over the cost of purchase to arrive at the understatement of sales of ₹ 93,65,993/- by the assessee. But at the same time, the entire understatement of sales cannot be treated as undisclosed income of the assessee for the year under consideration. It is well settled law that the best guide for estimation of income after rejecting the books of accounts is either past history of the assessee or any other comparable cases. The learned counsel for the assessee clearly demonstrated before us that the assessee's net profit in the past is between 0.12% to 0.28% of sales. The co-ordinate Bench of the Tribunal in the case of Manjit Singh Bagga vs. ITO in ITA No.371 and others dated 30th Sept. 2010 held that the estimation of net profit at 3% is reasonable. In view of this matter, ends of justice would be met if we estimate the net profit of the assessee at 3% of the purchases or stock put for sale during the year under consideration as against the estimation of 5% made by the CIT (A). Accordingly, the ground raised by the Revenue on this issue is rejected and Cross Objection filed by the assessee on this issue is allowed.

8. In the present case, admittedly the assessee is not an exclusive wine shop and it also runs restaurantITA No. 186 of 2012 M/s. Mallikharjuna Bar & Restaurant, Hyd. along with Bar and food items are sold along with liquor. Therefore, the profit in case of the assessee cannot be same as in the case of exclusive wine shop. However, considering the fact that the sale of food items are very less compared to sale of liquor and beer and also considering the fact that the ITAT has also in some cases directed for estimation of net profit in case of wine shops at 5%, we consider it reasonable to direct the AO to estimate the profit at 10% of purchases or stock put to sale during the year subject to the assessed income is not less than the returned income. The CIT (A)'s order is modified to this extent.

9. In the result, the appeal filed by the assessee is allowed in part.

Order was pronounced in Court on 28-06-2012.

             Sd/-                         Sd/-      (D. KARUNAKARA RAO)              (SAKTIJIT DEY)     ACCOUNTANT MEMBER              JUDICIAL MEMBERDated the 28th June, 2012.Copy forwarded to:

1. M/s Mallikarjuna Bar & Restaurant, 2-126, Rajalingam Complex, Opp. Pushpa Garden, Chaitanyapuri, Hyderabad.

2. The ITO, Ward- 9(3), IT Towers, AC Guards, Hyderabad.

3. CIT (A)-VI, Hyderabad.

4. The CIT concerned, Hyderabad.

5. The DR, ITAT, Hyderabad Jmr* ITA No. 186 of 2012 M/s. Mallikharjuna Bar & Restaurant, Hyd.

[YAGAY and SUN]

IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘A‘Bench, Hyderabad Before Smt. P. Madhavi Devi, Judicial Member and Shri B. Ramakotaiah, Accountant Member ITA No.761/Hyd/2015 (Assessment year: 2008-09) Income Tax Officer (Appellant) vs Shri Banda Mallesh (Respondent) Date of Hearing : 07.09.2015 Date of Pronouncement : 18.09.2015 ORDER Per Smt.P. Madhavi Devi, J.M. This is Revenue’s appeal for the A.Y 2008-09. In this appeal, the Revenue’s grievence is that the CIT (A) has erred in giving relief to the assessee on estimation of the income at a certain percentage of turnover without appreciating that the actual issue involved is determination of ‘suppression of the sale’. 2. Brief facts of the case are that the assessee, an individual, who is in the business of purchase and sale of liquor, filed his return of income for the relevant A.Y 2008-09 on 1.4.2009 declaring income of ₹ 5,75,280 which was processed u/s 143(1) of the Act. Subsequently, AO observed that as per the Govt. of A.P, Revenue (Excise-II) Deptt. order in GOMS No.184 dated 7.02.2005, the retailers margin i.e the gross profit is 27% on sale of ordinary liquor products, 20% on sale of medium and premium branded Indian Liquor and 25% on sale of Beers and based on this G.O, the sales should be at a margin of 24% of cost of goods sold. Therefore, AO was of the opinion that the income of the assessee 1/3 chargeable to tax has escaped assessment. He, therefore, issued notice u/s 148 of the Act and reopened the assessment. During the assessment proceedings u/s 143(3) r.w.s. 147 of the I.T. Act, the AO required the assessee to produce the books of accounts, bills and vouchers for the expenses debited to the P&L A/c. However, the assessee failed to furnish the necessary details but filed a reply stating that the books of accounts were lost and hence could not be produced for verification. AO, therefore, issued a show cause notice requiring the assessee to explain as to why sales amount should not be taken at ₹ 5,07,24,503 being is 124% of the purchases or cost of goods sold and why an estimation of 5% on the sales of ₹ 5,07,24,503 could not be taken for computing the tax. In reply to the above show cause notice, assessee submitted that his business premises is located in a slum/inside the road and hence assessee could only sell the products at low margin ranging from 1 to 2% with the intention to close the business due to local disturbances. It was further requested that the profits may be estimated at 2% of the turnover as the books of accounts are not available. AO, however, was not satisfied with the assessee’s contention and held that the assessee has not made any objection for considering the sales at ₹ 5,07,24,503 but has raised objection for estimating the profit at 5% only, as the shop is allegedly located in a slum area. He held that the assessee is not correct in stating that the shop is located in a slum area, as the shop was located in Road No.12, Banjara Hills, Hyderabad which is a prime locality in Hyderabad. He observed that in the State of Andhra Pradesh, the liquor shops are allotted by the State Govt. on auction basis and on perusal of the purchases made by the assessee during the year, it is seen that the wine shop is running in good condition and made a total turnover of ₹ 4,75,90,534. He therefore, held that the assessee’s explanation is not acceptable and there appears to be no mitigating factors to deserve any consideration to take a lenient view. He therefore, adopted the figure of ₹ 5,07,24,503 as the turnover of the assessee. Further, he brought the difference in the turnover estimated by the AO and the turnover reported by the assessee (i.e.Rs.5,07,24,503–Rs.4,75,90,534) = ₹ 31,33,969) to tax by adding the same to the income returned by the assessee. Aggrieved, assessee preferred an appeal before the CIT(A), who allowed the same and the Revenue is in appeal before us. While the learned DR supported the orders of the AO, none appeared on behalf of the assessee. It is noticed that the notice for hearing to the assessee was dispatched by the Registry of ITAT, but no acknowledgement is yet received. Therefore, it is presumed to have been served to the assessee. 3. On consideration of the facts on record, we find that the assessee has requested to estimate his income at 1 or 2% of his turnover, while AO has estimated the income at 24% of the cost of goods sold. The assessee had raised an objection before the CIT (A) stating that the AO has erred in resorting to estimation of sales at 124% of the value of stock put to sale during the year and making the addition of ₹ 31,33,969 on the basis of such estimated sales and in estimating the value of sales. During the course of the hearing of the appeal, assessee submitted that the AO’s estimation of sales at 124% of the cost of goods is on the higher side and is not practical. It was further submitted that, as held by the Hon'ble High Court of Andhra Pradesh in the case of CIT vs. Mekala Bal Reddy in ITTA No.28 & 29 of 2013, dated 30.07.2013, the reasonable profit rate to be adopted is 5% of the goods put to sale. The CIT (A) has considered this submission of the assessee to hold that the income of the assessee is to be estimated at 5% of ₹ 4,75,90,534 i.e. the sale reported by the assessee. We find that the AO has estimated the sales to be at 124% of 2/3 the cost of goods sold and therefore, has arrived at a figure of ₹ 5,07,24,503 as the turnover of the assessee. The Hon'ble High Court of Andhra Pradesh in the case of CIT vs. Mekala Bal Reddy (Supra) in a similar set of facts has held that the income of the assessee is to be estimated at 5% of the goods put to sale. The assessee has reported an actual sale of ₹ 4,75,90,534, whereas the figure of ₹ 5,07,24,503 is the estimated turnover at 124% of the cost of goods sold. In both the cases, the issue is of estimation of turnover by adopting different rates of gross profit. The AO has not determined the suppression of sales as alleged in the ground of appeal of the Revenue. It is the case of actual sale plus gross profit @ 5% thereon vs. estimated sale by adopting 24% G.P. on cost of goods sold. Therefore, we do not find any error in the order of the CIT (A) wherein he has directed the AO to estimate the profit at 5% of the sales reported by the assessee which is consonance with the directions of the Hon'ble High Court in similarly placed assessees. In view of the same, we do not see any reason to interfere with the order of the CIT (A) and the Revenue appeal is dismissed. 4. In the result, Revenue appeal is dismissed. Order pronounced in the Open Court on 18th September, 2015. Sd/- Sd/- (B. Ramakotaiah) (P. Madhavi Devi) Accountant Member Judicial Member Hyderabad, dated 18th September, 2015.

[DR.MARIAPPAN GOVINDARAJAN]

Thanks to Yagay & Sun for furnishing various judgments on the query.