2022 (5) TMI 769 - AT - Income Tax

Business loss incurred by the appellant on purchase and sale of guargum - Treated as a speculation loss and it cannot be set off against the business profit of the appellant - As argued appellant had paid for the purchase of guargum through banking channel and therefore, transaction of purchase was a genuine transaction - HELD THAT - As mentioned in the assessment order that assessee had filed audit report in Form No. 3CB and 3CD. However, the AO has not mentioned whether any quantitative details of the guargum were filed or not . The assessee claims that assessee had purchased and sold 160 tonnes of guargum . The assessee has also filed copy of the godown receipt for the month of March 2005. Assessee specifically stated that said receipts were filed before AO. As mentioned in the assessment order that no details were filed. Therefore, in the interest of the justice, the issue is set-aside to the file of the Assessing Officer to verify all the bills, godown receipts afresh. The AO will also verify whether any stock statement was submitted alongwith Audit Report. The assessee is directed to submit all the details before the Assessing Officer. The Assessing Officer is directed to provide an opportunity of being heard to the assessee, accordingly, grounds raised by the assessee are allowed for statistical purpose.

Summary

Issues:
Appeal against CIT(A) order disallowing business loss on guargum as speculation loss, authenticity of guargum transactions, restoration of appeal by ITAT due to defects in Form No. 36, AO's treatment of sale transaction as non-genuine, submission of bills and receipts by assessee, disagreement between AR and AO on admission of speculative nature, direction for AO to verify bills and receipts.

Analysis:
1. The appeal was filed against the CIT(A) order that treated the business loss on guargum as speculation loss, disallowing its set-off against business profit. The CIT(A) found the transactions genuine but speculative. The appellant contended that the purchases were made through banking channels, took delivery of stock, and transactions were through a commission agent. The appellant sought to set off the loss against business income and requested admission of additional evidence.

2. The ITAT had earlier dismissed the appeal due to defects in Form No. 36 but later restored it upon the appellant filing a Miscellaneous Application. The appellant, engaged in trading equity shares and commodities, claimed a loss on guargum transactions. The AO disallowed the claim citing lack of individual purchase and sale bills, and non-taking of delivery. The AO treated the sale as non-genuine, adding the loss amount to the income.

3. During the appeal before the Tribunal, the AR submitted purchase and sales bills by the commission agent, disputing the AO's claim of admission by the appellant's representative on speculative nature. The AR argued that the documents were submitted to the AO, contradicting the AO's assertion. The Revenue's DR relied on the AO's order.

4. The Tribunal, after hearing both parties, noted discrepancies in the AO's mention of filed documents and details. The Tribunal directed the issue back to the AO for fresh verification of bills, godown receipts, and stock statements. The AO was instructed to provide a hearing opportunity to the assessee and ensure submission of all necessary details. The appeal was allowed for statistical purposes, emphasizing the need for proper verification.

5. The Tribunal's decision to set aside the issue for fresh verification by the AO highlights the importance of substantiating transactions with proper documentation and ensuring a fair opportunity for the assessee to present evidence. The direction for re-examination underscores the significance of thorough assessment procedures in determining the genuineness of transactions and the appropriate treatment of losses in income tax assessments.