2013 (12) TMI 190 - AT - Income Tax

Loss in share trading - Loss in Futures & Options activity AO disallowed appellant s claim of share trading and F&O losses along with OD interest as personal in nature since these transactions were not routed through P&L a/c Held that - The appellant had followed the consistent method of computation of income/loss from the earlier year for which necessary evidence has been placed on record - the appellant had filed all the evidence of claiming loss before the AO from the accounts of brokers books which includes a copy of contract note issued by the brokers containing unique client code and PAN of the appellant - In audit report the nature of activity had been mentioned as professional consultant and share trading - For share loss, the appellant had not submitted any evidence whether any delivery of shares has been taken or not - the loss on future trading was supported by evidences with time stamped contract notes issued by the brokers containing unique client code and PAN of the appellant. From asst. yr. 2005-06, under s. 43(5), the future and option transaction had been excluded from the purview of speculation, if the transactions are carried out at recognized stock exchange and time stamped contract notes were issued - The appellant had routed the transaction through recognized stock exchange notes - appeal on future and option transaction is dismissed - the appellant had not proved before the AO as well as CIT(A) that share loss was not speculative loss or delivery of shares has been taken by the appellant or not decided partly in favour of Revenue.

Summary

Issues involved:
1. Whether the assessee can be penalized for improper accounting entries.
2. Whether the claimed loss can be allowed based on the computation of income.
3. Applicability of statutory audit under section 44AB.
4. Allowance of loss claim without statutory audit under section 44AB.
5. Validity of the CIT(A)'s order and restoration of the AO's order.

Issue 1: The primary issue in this case was whether the assessee could be penalized for improper accounting entries. The AO disallowed the claim of loss due to various reasons, including the absence of the loss in audited accounts and lack of mention in the profit and loss account. The AO initiated penal proceedings under section 271(l)(c) for concealment of income. However, the CIT(A) allowed the appeal, stating that the transactions were supported by evidence and the losses were genuine. The CIT(A) emphasized that the substance of the transactions should be considered, not just the form of accounting entries.

Issue 2: The second issue revolved around the allowance of the claimed loss based on the computation of income. The AO disallowed the losses as they were not part of the regular books of account and were not subjected to statutory audit under section 44AB. However, the CIT(A) found that the losses were genuine business losses, supported by audited accounts and evidence of transactions. The CIT(A) highlighted that the transactions were business in nature, not speculative, and therefore, the losses were allowable.

Issue 3: The question of statutory audit under section 44AB was also raised. The AO contended that the loss claim could not be allowed without statutory audit. However, the CIT(A) noted that the transactions were audited, and the losses were genuine business losses, meeting the criteria for allowance.

Issue 4: Another aspect was the allowance of the loss claim without statutory audit under section 44AB. The AO disallowed the loss claim, citing various reasons, including the absence of the loss in audited accounts. The CIT(A) disagreed and allowed the losses, emphasizing the evidence provided by the assessee and the nature of the transactions.

Issue 5: Lastly, the validity of the CIT(A)'s order and the restoration of the AO's order were challenged by the Revenue. The Revenue argued that proper books of account were not maintained by the assessee. However, the Tribunal found that the appellant had followed a consistent method of computation of income/loss, supported by evidence and audited accounts. The Tribunal partially allowed the Revenue's appeal, setting aside the issue of share loss for further examination by the AO.

In conclusion, the Tribunal partially allowed the Revenue's appeal, emphasizing the importance of proper evidence and substantiation of transactions in determining the allowability of losses and the significance of following statutory audit requirements under the Income Tax Act.