2017 (9) TMI 816 - AT - Income Tax

Disallowance of bogus loss - no incriminating material available on record - changing of the client code - Held that - A.O. has not confronted any material or statement which may be incriminating in nature against the assessee so as to prove allegation of receiving accommodation entry of the loss. No material has been brought on record by the A.O. in support of his findings. There is no working given as to how the assessee has taken these loss entries. The Ld. CIT(A) on going through the statements of Kunal Khaleja and Subhash Chandra Khaleja which have been relied upon by the A.O. found that there is no co-relation between a sum of ₹ 33,57,951 and the statements of the above broker with the assessee. The finding of fact recorded by the Ld. CIT(A) have not been rebutted through any evidence or material on record. No information is available on record as to how the assessee company has taken loss from these client code modification. There is no working given in the assessment order as to how the impugned addition has been calculated by the A.O. and its basis. In the absence of any incriminating material available on record against the assessee, it is difficult to interfere with the findings of the Ld. CIT(A). No details have been brought on record as to from whom assessee has taken the bogus entry of losses. Learned Counsel for the Assessee also demonstrated through P & L A/c that in assessment year under appeal the loss as compared to the earlier year has reduced to zero. Therefore, there is no question of making any addition against the assessee. - Decided against revenue

Summary

Issues:
Challenge to deletion of addition of ?33,57,951 on account of disallowance of bogus loss claimed by the assessee.

Detailed Analysis:

1. Reopening of Assessment and Addition on Merit:
The case involved the reopening of assessment based on information received regarding fictitious profits and losses created by brokers misusing the client code modification facility. The Assessing Officer (A.O.) made an addition of ?33,57,951 on the ground of the assessee taking a bogus loss by changing the client code. The assessee challenged the reopening and addition on merit before the Ld. CIT(A). The Ld. CIT(A) confirmed the reopening but deleted the addition. The Ld. CIT(A) found that the A.O. failed to provide any basis, material, or evidence to support the allegation of the bogus loss. The A.O. did not confront the appellant on the issue, and the information relied upon was vague and unsubstantiated. The Ld. CIT(A) concluded that the addition was based on insufficient information and lacked a proper basis, thus deleting the addition.

2. Arguments and Submissions:
The Ld. D.R. contended that if the A.O. failed to conduct a proper enquiry, the obligation shifted to the Commissioner (Appeals) and Tribunal, who cannot simply delete the addition for lack of enquiry. The Ld. D.R. sought to remand the matter back to the A.O. The Counsel for the Assessee reiterated that there was no evidence of bogus entry or client code modification, presenting the Profit & Loss Account to support the claim.

3. Tribunal's Decision:
After considering the submissions, the Tribunal found no merit in the Revenue's appeal. The A.O. did not provide any concrete basis or material to support the addition of the alleged bogus loss. The Tribunal noted the lack of incriminating material against the assessee and the absence of evidence linking the alleged loss to the appellant. The Ld. CIT(A)'s findings were upheld as no evidence rebutting them was presented. The Tribunal concluded that without any substantiated evidence against the assessee, there was no reason to interfere with the Ld. CIT(A)'s decision to delete the addition. The appeal by the Revenue was dismissed.

In conclusion, the Tribunal upheld the Ld. CIT(A)'s decision to delete the addition of ?33,57,951 on account of disallowance of the alleged bogus loss, as the A.O. failed to provide sufficient evidence or material to support the claim. The Tribunal found no grounds to remand the matter back to the A.O. and dismissed the Revenue's appeal.