2021 (3) TMI 1198 - AT - Income Tax

Disallowance of loss in share trading activity - Genuineness of loss claimed by the assessee - HELD THAT - We notice from the record that in the first round of appeal, Co-ordinate Bench 2019 (6) TMI 1592 - ITAT MUMBAI had noted that as seen from the written submission before the CIT(A) also the assessee was referring to various documents placed before AO in proving the genuineness of the transactions. Neither the AO nor the CIT(A) examined or referred to these documents. Be that as it may, the fact remains that neither the AO nor CIT(A) examined these documents in its correct perspective, but carried away mere by the observations of SEBI and JPC in the group cases. With the above observation, the case was remitted back to AO. But in the second round also, we notice that AO has given notices to assessee and called for information once again. AO observe that assessee has not substantiated the genuineness of the transaction and accordingly, he sustained the disallowance of loss. The Co-ordinate Bench has clearly observed that all the relevant information was submitted by the assessee, AO should have referred those information which was already available on record. If there is any short coming or any documents, which is not proper, AO should have discussed in his order before sustaining the disallowance. He has not discussed any merits of the case based on the information submitted by the assessee in the original assessment proceedings. AO simply completed the proceedings blaming the assessee without taking cognizance of the earlier direction from ITAT. Even the Ld. CIT(A) dismissed the appeal filed by the assessee blaming the non-appearance of the assessee and its submission. The Ld. CIT(A) also not verified the genuineness of the documents filed by the assessee in the original assessment proceedings.we are inclined to accept the submission of Ld. AR. Accordingly, the grounds raised by the assessee are allowed.

Summary

Issues Involved:
1. Genuineness of the loss claimed in share trading activity.
2. Compliance with procedural requirements by the assessee during assessment and appellate proceedings.
3. Examination of documentary evidence by the Assessing Officer (AO) and Commissioner of Income Tax (Appeals) [CIT(A)].
4. Applicability of previous tribunal decisions to the current case.

Detailed Analysis:

1. Genuineness of the Loss Claimed:
The primary issue revolves around the genuineness of the loss amounting to ?1,08,81,027/- claimed by the assessee in share trading activity. The AO initially disallowed the loss, which was upheld by the CIT(A), citing the assessee's failure to substantiate the loss with adequate documentary evidence. The assessee contended that all necessary documents were submitted during the original assessment and subsequent proceedings. The tribunal noted that neither the AO nor the CIT(A) examined the documents in the correct perspective, and the AO was more influenced by the observations of SEBI and JPC in related group cases.

2. Compliance with Procedural Requirements:
The tribunal observed that the assessee was non-cooperative during various stages of the proceedings. Despite multiple opportunities, the assessee failed to provide the required details to substantiate the loss. The CIT(A) noted that the assessee took adjournments for flimsy reasons and did not submit any factual details even after taking significant time. The tribunal emphasized that the AO should have referred to the documents already available on record and discussed any shortcomings in his order.

3. Examination of Documentary Evidence:
The tribunal highlighted that the AO and CIT(A) did not properly examine the documentary evidence provided by the assessee. The tribunal's earlier directions were to verify whether the transactions were delivery-based, occurred in the stock exchange or off-market, and whether the losses claimed were genuine. The tribunal noted that the AO failed to discuss the merits of the case based on the information submitted by the assessee and simply completed the proceedings by blaming the assessee.

4. Applicability of Previous Tribunal Decisions:
The assessee relied on previous tribunal decisions in similar cases involving group companies, where the losses were held to be genuine. The tribunal acknowledged these decisions and noted that the facts and circumstances in the present case were similar. The tribunal referred to its earlier decision in the assessee's own case for the assessment year 2001-02, where similar disallowance was made, and the tribunal allowed the loss as claimed by the assessee after considering the documentary evidence.

Conclusion:
The tribunal concluded that the AO and CIT(A) did not properly examine the documentary evidence provided by the assessee and were more influenced by the observations of SEBI and JPC in related group cases. The tribunal directed the AO to treat the loss as genuine and allow it to be carried forward to subsequent years, following the decision in the assessee's own case for the assessment year 2001-02. The appeal filed by the assessee was allowed.

Order:
The appeal filed by the assessee stands allowed, and the AO is directed to treat the loss as genuine and allow it to be carried forward to subsequent years.