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TMI Blog2019 (10) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... GUJARAT HIGH COURT ] assessee would be entitled to deduction of loss during the year under consideration as that was the year in which the loss on account of embezzlement was, in fact, discovered. Which year the assessee can claim the deduction on account of such losses, i.e., embezzlement of the fund. Admittedly, the fund was embezzled by the employee of the assessee in the earlier years, but the assessee did not claim the deduction for the same till date as it was hopeful of recovering the same amount from the employee. In the year under consideration, the assessee has lost its hope for the recovery of the amount from the employee. Assessee has written off such amount as bad debt in the year under consideration. In our considered view, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income Tax (Appeals), Ahmedabad-5, dated 13/04/2016 ( in short Ld.CIT(A) ) arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-in-after referred to as the Act ) dt. 27/09/2010 relevant to the Assessment Year 2008-2009. The assessee has raised the following grounds of appeal; 1. That on facts and in law, the learned CIT(A) has grievously erred in confirming the disallowance of claim of bad debt/trading loss of ₹ 4,66,444/- 2. That in the alternate, and without prejudice to the above ground, direction ought to have been given to allow the deduction in appropriate assessment year, since the genuineness of claim is not in doubt. 3. That on facts an in law, the lerned CIT(A) has gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1 However, the AO was of the view that deduction on account of embezzlement of the fund can be claimed in the previous year in which such embezzlement was crystallized. Moreover, the AO was of the opinion that this amount of embezzlement was discovered in the earlier previous year. Therefore the same cannot be allowed as a deduction in the year under consideration. Accordingly, he disallowed the same and added to the total income of the assessee. 3. The aggrieved assessee preferred an appeal to the ''Ld.CIT (A)'' who has confirmed the order of the AO by observing as under: 3.3.1 The facts of the case and the submissions are considered. Mr. Maulik Pathak sales representative of the assessee had recovered amounts due form su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the year under consideration on rational that the amount became irrecoverable from the employee. Thus the impugned amount was written off in the year under consideration. 5.1 The Ld.AR, alternatively also submitted that a direction should be issued to the Revenue to allow the claim of the assessee for the deduction in the relevant years in which such embezzlement was discovered/crystalized 6. On the other hand, Ld.DR submitted that the impugned amount was not recoverable from the parties to whom the assessee has made sales. Therefore the same cannot be claimed as bad debt. 7. The Ld.DR vehemently supported the order of the authorities below. 8. We have heard the rival contentions of both the parties and perused the relevant materials avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as irrecoverable from the employee. The Revenue cannot enter into the shoes of the assessee and direct him to claim the deduction of such amount in the year in which the embezzlement was discovered/crystalized. 8.2 We also note that the case-law referred by the authorities below are distinguishable from the present fact of the case. Therefore we are reluctant to place our reliance on such judgment. 8.3 After considering the facts in totality as discussed above, we note that the assessee is eligible for the deduction of the amount embezzled by the employee as a trading loss. Hence, the ground of appeal of the assessee is allowed. The next issue raised by the assessee is that the ''Ld.CIT (A)'' erred in confirming the disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The auditor in his report clearly stated that these payments are purely customary in nature. The appellant has simply said that the auditor didn t mean that the same was in the nature of distribution of profits or dividend to the employees without furnishing any supporting details or evidences. Therefore, the action of the AO is found to be justified and th addition made is confirmed. Thus, the ground raised by the appellant to this extent is dismissed. Being aggrieved by the order of the ''Ld.CIT (A)'' the assessee is in appeal before us. 11. The Ld.AR, before us, reiterated the submission as made before the authorities below. 12. On the other hand, the Ld.DR vehemently supported the order of the authorities below. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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