INCOME-TAX OFFICER, WARD-1,, CHITRADURGA vs. M/S KARTHIK POULTRY FARM,, CHITRADURGA

3.1 Aggrieved by the order of the CIT(A), Hubli dated 10-06-2014 for the assessment year 2011-12. Revenue has preferred this appeal raising the following rounds;

“ 1. The order of the learned CIT(A), Hubli is opposed to law and not on the facts and circumstances of the case.

2. The CIT(A), Hubli erred in directing the computation of the income by applying gross profit at 18% on the said quantum of suppression of sales to the extent of Rs.54,21,353/- determined when the assessee has not produced any evidence t show that expenses were incurred or suppressed production.

4. For these and other grounds that may be urged upon, the order of the CIT(A) may be reversed and that assessment order be restored.

5.1 Ground no.2 is the only effective ground of revenue for consideration before us in this appeal. It is contended that the direction of the learned CIT(A) to re-compute the income of the assessee on account of the suppression of turnover, by applying the gross profit rate of 18% on the quantum of suppressed sales amounting to Rs.54,21,353/- is erroneous. It is submitted that the assessee has not produced any evidence to show that there were expenses incurred in relation to the suppressed production of eggs. In view of the above, the learned DR prayed that the order of the learned CIT(A) be set aside and the suppressed turnover worked about by the AO be regarded as income of the assessee.

5.2 Per contra, the learned AR strongly supported the finding of the learned CIT(A) in the impugned order.

5.3.1 We have heard both parties and perused carefully considered the material on record. We find that the learned CIT(A) has disposed of the aforesaid issue by holding as under in the impugned order at pages 14-17 thereof;

“I have gone through the facts of the case, contents of the assessment order and statements of facts of the assessee and the case laws referred and relied by the assessee. The AO has worked out the suppression of sales of eggs Rs. 54,21,353/- based on the production of the eggs during the AY 2011-12, and the sale of eggs admitted by the assessee as per the Profit and Loss account. The assessee has contended in the statement of facts that GP has to be adopte d on suppre ssion of s ale s inste ad of ta ki ng e ntire suppression of sales as unaccounted income. Assessee has filed the details of the comparable case of GP on turnover. The details are as mentioned below; "In the cases of MIS. Karthik Poultrjj Farm, Molakalmuru for the A.Y. 2011-12.

Comparative cases of Gross Profit declared by the following Poultry farms which are located within vicinity of Molakalmuru Town.

The comparable cases of Gross profit earned by the above said poultry farms ranged between 9 to 12% and they are all assessed to tax under Income Tax Act. Keeping in view the above comparable cases the Gross profit between 9 to 12% may kindly be considered."

The Hon'ble ITAT, Ahemdabad Bench in the case of ITO Vs. Gurubachan Singh Juneja reported in 216 ITR 99 it was held that unaccounted sales-value of the cash sales cannot be added to the total income of the assessee as there was no material on record that the assessee has made investment to make unaccounted sales and the gross profits should be applied to the unaccounted sales.

The Hon'ble Calcutta High Court in the case of CIT Vs. S.M. Omar reported in 201 ITR 608 it was held that the " assessee has supplied goods after incurring certain costs, etc. and amount to received could not be represent the net income and the estimation of the difference of net profit which was sought to be added and having actually added that difference, the ITO did not have any further jurisdiction to add an additions sum by a way off concealed income in the shape of monies invested in the raw materials. This addition was upheld by the tribunal.

The Hon'ble Supreme Court in the case of Anis Ahmed & Sons Vs. CIT(Appeals) Kanpur reported in 297 ITR 441 it was held that the "assessee filed its return for the assessment year 1984-85 declaring certain amount as income as commission agent. However, the AO had treated the asse ssee as a trader and not as a commission agent and assessed it income accordingly. On remand the AO issued summons to ten traders u/s 13 1(1). In response to summons, five traders appeared and gave evidence in favour of assessee. The remaining five traders did not appear because they could not be served with the summons as they were residing outside the State Of U.P. The AO had drawn adverse inference against claim of assessee and assessed income for relevant assessment year treating transaction with the absentee traders as having been done by assessee in capacity of trader and not as 'commission agent'.

There is truth in the contention of the assessee whenever the sales were made outside the books of accounts or the sales are not reflected in the regular books of accounts only the GP has to be taken to the total income but not entire sales. The sales represents the purchase value and element of profit. The same anology was upheld by the Hon'ble Gujarat High Court in the case of CIT vs. President

Industries 258 ITR 654 it was held that "The Amount of sales cannot be represent the income of the assessee who has not disclose the sales. The sales only represent the price received by the seller of the goods for the acquisition of whose It has already incurred the cost. It is the realization of excess over the cost incurred that only forms part of the profit included in the consideration of sales therefore unless there is a finding to the effect that the investment by the way of incurring cost in acquiring goods which has been sold have been made by the assessee and that has also not disclosed. The question whether entire some of undisclosed sales proceeds can be treated as an income, answer by itself in the negative".

In view of the facts and the case laws and comparative gross profit details of the similar trade, submitted by the assessee, the contentions of the AO to consider the entire suppression of sales as unaccounted income of the assessee is not justifiable for the reason that there was element of expenditure incurred in production of the eggs. Hence, it is more appropriate to go for the estimation of the gross profit on entire suppression of sales. The GP details of similar trade i.e Poultry Farms, vary from 9 to 12% and it may be more appropriate to adopt the GP at 18% on the suppression of sales on Rs. 54,21,353/-. AO is directed to re-compute the income by applying the GP at 18% on the suppression of sales of Rs. 54,21,353/-. Hence, this ground of appeal of the assessee is partly allowed.

5.3.2 On a careful appreciation of the facts on record in respect of the issue before us, we are of the considered view that the aforesaid conclusion of the learned CIT(A) (Supra) appears to be in order. It is well settled law that the entire amount of sale does not represent income of the assessee. It is only a price received by the seller of the goods and only the realization over cost that can be the profit. In coming to the aforesaid conclusion, the learned CIT(A) has relied upon by the judgments of the ITO Vs Gurubachan Singh Juneja (216 ITR 99 (ITAT Ahmedabad) CIT Vs S.M.Omar (201 ITR 608) (Cal.) Anis Ahmed & Sons Vs CIT (297 ITR 441) (SC) and CIT Vs President Industries (258 ITR 654) (Guj.), which has been approved by the Hon’ble Madhya Pradesh High Court in the case of CIT Vs Balchand Ajit Kumar (263 ITR 610) (MP) and which, in our view, are applicable to the facts of the case on hand.

5.3.3 In the case on hand, the grievance of the revenue is that the assessee has not shown that it has incurred expenditure in respect of undisclosed/suppressed sales. The learned CIT(A) has proceeded to estimate the assessee’s profit @18% of the turnover after recording that entities in the same line of business, as that of the assessee in the case on hand, have shown lesser profits in the region of 9% to 12% of turnover. Merely because the expenditure incurred by the assessee in respect of this turnover has not been proved does not mean that there was no expenditure incurred at all and such a plea cannot be accepted.

In such circumstances, an estimate of the probable profit has to be made having regard to the surrounding circumstances, ground realities, corroborative evidence in the form of profits shown in comparative cases and other factors that are relevant to determine the real income of the assessee. We are of the view, that in the facts and circumstances of the case as laid out above, the learned CIT(A) has followed the correct and reasonable approach in estimating the profit on the suppressed turnover worked out by the AO which has not been questioned by the assessee. In our view, revenue except for raising the ground has not been able to contravene the finding of the learned CIT(A) and we are,therefore, no interference is called for in the finding of the learned CIT(A) in the impugned order on this issue. Consequently, ground no.2 of the revenue’s appeal stands dismissed.

Order pronounced in the open Court on the 6th November, 2015.