M/s. Panchmahal Dist. Co-Op. Milk Producers' Union Ltd., Godhra V. The Asstt. Commissioner of Income Tax, PC, Godhra

ITA 123/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8097 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 13-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

, LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD OLHE VGEN] YS[KK LNL; OLHE VGEN] YS[KK LNL; OLHE VGEN] YS[KK LNL; OLHE VGEN] YS[KK LNL; , BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ I.T.A. NO.123/AHD/2017 ( / ASSESSMENT YEAR : 2009-10) M/S. PANCHMAHAL DIST. CO-OP. MILK PRODUCTS UNION LTD., P.B. NO.37, LUNAWADA ROAD, GODHRA 389 001 / VS. ACIT, PC, GODHRA ./ ./ PAN/GIR NO. : AAATP 1372 N ( / APPELLANT ) .. ( !' / RESPONDENT ) # / APPELLANT BY : SHRI SUNIL TALATI, A.R. !' $ # / RESPONDENT BY : SHRI PRASOON KABRA, SR. D.R. % &' $ () / DATE OF HEARING 31/05/2018 *+,- $ () / DATE OF PRONOUNCEMENT 20/06/2018 . / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-4, VADODARA [CIT(A) IN SHORT] VIDE APPEAL NO.CAB/4- 191/2015-16 DATED 17.08.2016 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3)(II) R.W.S. 147 OF THE INCOME TAX ACT , 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 24.03.2015 RELEVAN T TO ASSESSMENT YEAR (AY) 2009-10. ITA NO.123/AHD/2017 M/S. PANCHMAHAL DIST. CO.OP MILK PRODUCERS UNION LTD. VS. ACIT ASST.YEAR 2009-10 - 2 - 2. THE REVISED GROUNDS OF APPEAL RAISED BY THE ASSE SSEE ARE AS UNDER:- YOUR APPELLANT BEING DISSATISFIED WITH THE ORDER P ASSED BY THE HON'BLE CIT(A)-4, BARODA, IN APPEAL NO. CAB/4-191/2015-16 D ATED 17.08.2016, PRESENTS THIS APPEAL AGAINST THE SAID ORDER ON THE FOLLOWING AMONGST OTHER GROUNDS:- 1. THE HON'BLE CIT(A) HAS ERRED IN CONFIRMING THE VALI DITY OF THE ORDER PASSED U/S 143(3) R.W.S 147 OF THE ACT. THE HON'BLE CIT(A) HAS NOT APPRECIATED THE PROVISIONS OF SECTION 147 OF THE AC T AND HAS CONFIRMED THE PROCEEDINGS U/S 147 OF THE ACT BY IGNORING THE FACT THAT FOR THE YEAR UNDER CONSIDERATION NO INCOME WAS ESCAPED OR UNDERSTATED. HENCE THE ORDER PASSED BY HON C1T(A) IS UNJUST AND UNCALLED FOR AND THE SAME BE QUASHED. 2. THE HON'BLE CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF EMBEZZLEMENT LOSS OF RS. 1,49,42,167/- MADE ON SUBSTANTIVE BASIS BY IGNORING THE FACTS THAT THE ASSESSEE HAS NEVER CLAIMED THE LOSS IN ACCOUNTS NOR WHILE FILING RETURN OF INCOME. IT BE N OTED THAT THE HON CIT(A) HAS NOT APPRECIATED THE FACTS AND THE SUBMIS SION MADE BY THE ASSESSEE AND CONFIRMED THE SAID ADDITION. HENCE THE ADDITION MADE ON PROTECTIVE BASIS BE DELETED. 3. THE HON'BLE CIT(A)-4, HAS ERRED IN CONFIRMING THE C HARGING OF INTEREST U/S 234A/B/C OF THE ACT. YOUR APPELLANT SUBMITS THA T CHARGING OF INTEREST IS INCORRECT AND UNJUSTIFIED. IT BE HELD S O NOW AND THE SAME BE DIRECTED TO BE DELETED. YOUR APPELLANT CRAVES FOR TO LEAVE ADD/ALTER/AMEND ANY GROUNDS OF APPEAL BEFORE HEARING OF THIS APPEAL. 3. THE FIRST ISSUE RAISED BY THE ASSESSEE IN THE GR OUND NO. 1 IS THAT THE LD. CIT-A ERRED IN UPHOLDING THE VALIDITY OF THE OR DER PASSED UNDER 147 OF THE ACT. AT THE TIME HEARING THE LD. COUNSEL FOR THE ASSESSE E HAS NOT ADVANCED ANY ARGUMENT ON THE VALIDITY OF ORDER FRAMED UNDER SECT ION 147 OF THE ACT. THEREFORE WE DISMISS THE SAME. ITA NO.123/AHD/2017 M/S. PANCHMAHAL DIST. CO.OP MILK PRODUCERS UNION LTD. VS. ACIT ASST.YEAR 2009-10 - 3 - 4. THE SECOND ISSUE RAISED BY THE ASSESSEE IN THE G ROUND NO. 2 IS THAT LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.1,49,42,167/- ON ACCOUNT OF EMBEZZLEMENT OF THE FUND. 5. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IN TH E PRESENT CASE IS AN AOP AND ENGAGED IN THE BUSINESS OF MILK PROCESSING AND PRODUCTION OF VARIOUS MILK PRODUCTS AND TRADING THEREIN & MANUFAC TURING OF CATTLE FEED. THE AUDITOR OF ASSESSEE DURING THE F.Y. 2009-10 DET ECTED FRAUD/EMBEZZLEMENT OF A FUND AMOUNTING TO RS.1,49,4 2,167/- PERTAINING TO THE F.Y. 2008-09. THE AUDITOR ADVISED THE ASSESS EE TO CLAIM SUCH LOSS IN THE F.Y. 2009-10 CORRESPONDING TO A.Y. 2010-11 A S THE LOSS WAS DETECTED IN THE F.Y. 2009-10. ACCORDINGLY, THE ASSE SSEE CLAIMED THE IMPUGNED LOSS OF RS.1,49,42,167/- IN THE F.Y. 2009- 10 CORRESPONDING TO A.Y. 2010-11. HOWEVER, THE AO DURING ASSESSMENT PROCEEDINGS OBSER VED THAT THE IMPUGNED LOSS WAS DISALLOWED/ ADDED IN THE ASSESSME NT PROCEEDINGS PERTAINING TO THE ASSESSMENT YEAR 2010-11 ON A PROT ECTIVE BASIS. SUCH ADDITION/DISALLOWANCE WAS CHALLENGED BY THE ASSESSE E BEFORE THE LEARNED CIT(A) WHO CONFIRMED THE SAME. HOWEVER, THE ASSESSE E SUBSEQUENTLY CHALLENGED THE SAME BEFORE THE HONBLE ITAT VIDE IT A NO. 2759/AHD/2013, WHICH IS PENDING AS ON DATE. HOWEVER , THE AO OPINED THAT THE AMOUNT INVOLVED IN THE EMBEZZLEMENT OF FUN DS PERTAINS TO THE AY 2009-10. THEREFORE IT NEEDS TO BE ADDED TO THE Y EAR UNDER CONSIDERATION. ITA NO.123/AHD/2017 M/S. PANCHMAHAL DIST. CO.OP MILK PRODUCERS UNION LTD. VS. ACIT ASST.YEAR 2009-10 - 4 - IN VIEW OF ABOVE, THE AO ADDED THE SUM OF RS.1,49,4 2,167/- ON THE SUBSTANTIVE BASIS TO THE TOTAL INCOME OF THE ASSESS EE. 6. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO LEARN ED CIT(A) WHO CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER: 3.3. I HAVE CONSIDERED THE SUBMISSIONS OF THE LEAR NED AUTHORIZED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFIC ER. LD. AUTHORIZED REPRESENTATIVE HAS FAIRLY ADMITTED THAT THIS ISSUE IS COVERED AGAINST THE APPELLANT BY THE ORDER OF CIT(A)-VI IN RESPECT OF 2 010-11 WHEN THIS ISSUE OF LOSSES DUE TO EMBEZZLEMENT CAME UP FOR CON SIDERATION BEFORE HIM. LD. CIT(A)-VI ADJUDICATED THE ISSUE AGAINST TH E APPELLANT VIDE HIS ORDER DATED 19.09.2013 IN APPEAL NO. CAB-VI/205/201 2-13 AS UNDER:- 5.3 I HAVE GIVEN MY CAREFUL CONSIDERATION TO THE FA CTS OF THE CASE, THE SUBMISSIONS OF THE APPELLANT, JUDICIAL PR ONOUNCEMENTS AND THE MATERIAL AVAILABLE ON RECORD. THE ISSUE REL ATES TO SALE OF MILK BY THE APPELLANT, WHICH WAS NOT ACCOUNTED FOR BY CERTAIN UNITS OF THE APPELLANT AND NO REALIZATION, AS PER A PPELLANT WAS MADE FROM THIS SALE. THERE IS NO DISPUTE ON THE FAC T THAT THE ISSUE DOES NOT RELATE TO THE YEAR UNDER CONSIDERATION BUT RELATES TO F.Y. 08-09 RELEVANT TO A.Y. 09-10. THE APPELLANT REITERA TES THAT ON THE INSISTENCE OF THE GOVERNMENT AUDITOR, THE SALE WAS ACCOUNTED FOR IN F.Y. 09-10 RELEVANT TO A.Y. 10-11. HOWEVER, THE APPELLANT FURTHER STATES THAT IT DID NOT DEBIT THE AMOUNT J O F SUCH SALE IN THE PROFIT AND LOSS ACCOUNT AS THE GOVERNMENT AUDITOR I NSISTED THAT IT SHOULD BE RECOVERED FROM THE CONCERNED EMPLOYEES AND SHOULD BE SHOWN, FOR THE TIME BEING, AS 'RECOVERABLE' IN T HE BALANCE SHEET. IT IS CLEAR THAT THE APPELLANT HAS NOT LET G O OF ITS CLAIM ON THE SALE PRICE. IT IS ALSO NOT DISPUTED THAT THE MA TTER IS STILL BEING INVESTIGATED. IT IS ALSO BEYOND DISPUTE THAT THE AP PELLANT HAS NOT TAKEN ANY LEGAL ACTION AGAINST THE ALLEGED CULPRITS . EVEN AN FIR HAS NOT BEEN FILED IN THE CASE. NO RECOVERY PROCEED INGS HAVE BEEN LAUNCHED BY THE APPELLANT AGAINST THE ALLEGED PERPETRATORS OF THE ALLEGE CRIME. THE ASSESSING OFFICER HAS CLEA RLY NOTED THAT THE SHOW CAUSE NOTICES ISSUED TO FOUR PERSONS DO NO T MENTION ANY SPECIFIC CHARGE ABOUT MISAPPROPRIATION AND EVEN THE AMOUNT OF MISAPPROPRIATION HAS NOT BEEN QUANTIFIED IN THIS NO TICE. IT IS ALSO ITA NO.123/AHD/2017 M/S. PANCHMAHAL DIST. CO.OP MILK PRODUCERS UNION LTD. VS. ACIT ASST.YEAR 2009-10 - 5 - A FACT THAT WHEN SALES HAVE BEEN RECORDED IN THE BO OKS OF ACCOUNTS, SALE AMOUNT HAS ACCRUED TO IT. 5.4 THE APPELLANT HAS NOT DEBITED THIS AMOUNT OF AL LEGED MISAPPROPRIATION/LOSS IN THE PROFIT AND LOSS ACCOUN T AND HAS DIRECTLY CLAIMED IT AS A DEDUCTION IN THE COMPUTATI ON OF INCOME. IT HAS NOT WRITTEN IT OFF BY DEBITING IT TO THE PRO FIT AND LOSS ACCOUNT; RATHER, IT HAS MAINTAINED ITS CLAIM OVER T HE MONEY BY SHOWING IT AS 'RECOVERABLE' IN THE BALANCE SHEET. F ROM THE ABOVE, IT IS CLEAR THAT THE LOSS HAS NOT CRYSTALLIZ ED DURING THE YEAR. 5.5 IT IS ALSO CLEAR FROM THE EVENTS THAT THE LIAB ILITY OF THE RELEVANT EXPENDITURE HAS NOT ACCRUED, SINCE THE APP ELLANT HAVE KEPT HIS LIEN OVER THE MONEY ALIVE BY SHOWING IT AS 'RECOVERABLE' IN BALANCE SHEET, IT HAS NOT BEEN CRYSTALLIZED. THE APPELLANT HAS ITSELF CONCEDED THAT IT DID NOT WRITE OFF THE AMOUN T IN ITS PROFIT AND LOSS ACCOUNT BECAUSE INQUIRIES WERE PENDING AND FIR AND CRIMINAL ACTION WERE NOT INITIATED. THE CASES CITED BY THE APPELLANT IN THIS REGARD, DO NOT APPLY TO THE FACTS OF THE APPELLANT'S CASE. 5.6 IT IS A FACT THAT THE APPELLANT HAD NOT RECORD ED/ACCOUNTED FOR THIS SALE IN ITS BOOKS OF ACCOUNTS DURING THE I MMEDIATELY PRECEDING ASSESSMENT YEAR (I.E. F.Y. 08-09, A.Y. 09 -10) ALSO AND BASED ON ITS ACCOUNTING POLICIES, IT WAS FOR THE FI RST TIME ACCOUNTED FOR IN F.Y.09-10 RELEVANT TO A.Y.10-11. T HE DEFICIENCY IN SALES FIGURES WAS DETECTED DURING THE CURRENT YE AR AND THE SAME WAS ACCOUNTED FOR DURING THE CURRENT YEAR. APP ELLANT'S PLEA THAT INCOME HAD NOT ACCRUED TO IT ALSO DOES NOT APP EAL TO ME CONSIDERING THE FACT THAT SALE IS EFFECTED AS SOON AS THE MILK IS LOADED IN TO THE SUPPLY TRUCKS ALONG WITH PROPER CH ALLANS AND BILLS/VOUCHERS. AT THIS POINT, SALE IS EFFECTED AND CORRESPONDING INCOME ACCRUES TO THE APPELLANT. THEREFORE, APPELLA NT'S ALTERNATE PLEA THAT THE SALES FIGURE FOR THE CURRENT YEAR SHO ULD BE REDUCED BY ON AMOUNT OF RS.1,49,42,467/- CANNOT BE ACCEPTED . WHEN SALES ARE ACCOUNTED FOR, AS A COROLLARY, LOSS, IF A NY, SHOULD BE A/LOWED TO BE WRITTEN OFF, WHEN THE LOSS CRYSTALLIZ ED. SINCE IT HAS NOT CRYSTALLISED DURING THE YEAR UNDER CONSIDERATIO N, IT CANNOT BE ALLOWED AS DEDUCTION DURING THE YEAR UNDER CONSIDER ATION. IN ITA NO.123/AHD/2017 M/S. PANCHMAHAL DIST. CO.OP MILK PRODUCERS UNION LTD. VS. ACIT ASST.YEAR 2009-10 - 6 - VIEW OF THIS, THE ORDER OF THE ASSESSING OFFICER IN THIS REGARD IS CONFIRMED. THE APPELLANT FAILS ON THESE TWO GROUNDS OF APPEAL. FACTS OF THE PRESET CASE ARE NOT DIFFERENT FROM THE FACTS OF A.Y.2010-11 WHEN THE MATTER WAS DECIDED AGAINST THE ASSESSEE. T HUS, I HAVE NO REASON TO DIFFER FROM MY PREDECESSOR AND FOLLOWING HIS ORDER, DISMISS THE SOLE GROUND OF APPEAL. BEING AGGRIEVED BY ORDER OF LEARNED CIT(A) ASSESSEE IS IN APPEAL BEFORE US. THE LEARNED AR AT THE OUTSET BROUGHT OUR NOTICE THA T THE APPEAL FILED BEFORE THE HONBLE ITAT PERTAINING TO THE A.Y. 2010 -11 HAS BEEN DISMISSED BY VIDE ORDER DATED 13 APRIL 2018. THUS, THE ADDITION MADE FOR RS.1,49,42,167/- WAS CONFIRMED IN THE YEAR 2010-11 ON A SUBSTANTIVE BASIS. THEREFORE, IF THE ADDITION IS FURTHER MADE I N THE YEAR UNDER CONSIDERATION, THEN IT WILL LEAD TO DOUBLE ADDITION IN THE HANDS OF THE ASSESSEE, WHICH IS CONTRARY TO THE PROVISIONS OF LA W. THE LEARNED AR IN SUPPORT OF HIS CLAIM FILED THE COPY OF HONBLE ITAT IN THE CASE OF THE ASSESSEE PERTAINING TO THE ASSESSMENT YEAR 2010-11 VIDE ITA NO. 2759/AHD/2013. ON THE OTHER HAND, LEARNED DR CONCEDED THE FACT THA T IF THE ADDITION IS SUSTAINED IN THE HANDS OF THE ASSESSEE FOR THE ASSE SSMENT YEAR 2009-10, THEN IT WILL LEAD TO DOUBLE ADDITION. HOWEVER, THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS OF THE CASE ARE NOT IN DISPUTE, AND THE SAME HAVE ALREADY BEEN ELABORATED IN THE PRECEDING PARAG RAPHS. THERE WE ARE ITA NO.123/AHD/2017 M/S. PANCHMAHAL DIST. CO.OP MILK PRODUCERS UNION LTD. VS. ACIT ASST.YEAR 2009-10 - 7 - NOT REPEATING THE SAME FOR THE SAKE OF BREVITY. FRO M THE PRECEDING DISCUSSION, THERE REMAINS NO DOUBT THAT THE HONBLE ITAT HAS CONFIRMED THE ADDITION IN ITS ORDER VIDE ITA NO. 2759/AHD/201 3, DATED 13-4-2018 IN THE CASE OF THE ASSESSEE ON ACCOUNT OF EMBEZZLEM ENT LOSS OF RS.1,49,42,167/- PERTAINING TO THE A.Y. 2010-11 ON A SUBSTANTIVE BASIS. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED BEL OW: 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS AND PERUSED THE ORDERS OF THE CIT(A) AND AO. 12.1. THE SOLITARY QUESTION INVOLVED IN THE ASSESSE E'S APPEAL RELEVANT TO AY 2010-11 IS WHETHER THE BUSINESS LOSS CLAIMED BY ASSESSEE TOWARDS MISAPPROPRIATION/EMBEZZLEMENT OF SALE PROCEEDS OF M ILK BY ITS EMPLOYEES IS JUSTIFIED IN THE FACTS AND THE CIRCUMS TANCES OF THE CASE OR NOT. IT IS THE CASE OF THE ASSESSEE THAT THE ASSESS EE CO-OPERATIVE SOCIETY IS GOVERNED BY THE DIRECTIONS OF THE DISTRICT REGIS TRAR AND SUBJECTED TO INDEPENDENT AUDIT BY THE SPECIAL AUDITORS. IN THE C OURSE OF AUDIT OF THE FINANCIAL ACCOUNTS, THE AUDIT DEEM DISCOVERED UNDER REPORTING OF SALES IN THE EARLIER YEAR I.E. FY 2008-09. THIS LEAD TO T HE REALIZATION OF MISAPPROPRIATION/EMBEZZLEMENT OF SALE PROCEEDS OF M ILK BY ITS EMPLOYEES IN VARIOUS UNITS AGGREGATING TO RS.1,49,4 2,167/-. THE ASSESSEE, WHILE COMPUTING THE TAXABLE INCOME SEEKS DEDUCTION OF THE AFORESAID BUSINESS LOSS SADDLED UPON THE ASSESSEE O WING TO EMBEZZLEMENT DISCOVERED DURING THE YEAR AND THUS PU RPORTEDLY CRYSTALLIZED DURING THE YEAR. 12.2. THE REVENUE, ON ITS PART, CLAIMS THAT SUCH LO SS IS NOT ALLOWABLE BUSINESS LOSS FIRSTLY ON THE GROUND THAT THE ALLEGE D MISAPPROPRIATION/EMBEZZLEMENT LOSS HAS NOT BEEN CHA RGED TO PROFIT AND LOSS ACCOUNT BY THE ASSESSEE ITSELF. SECONDLY, THE REVENUE FURTHER CONTENDS THAT SUCH ALLEGED LOSS CANNOT BE RECOGNIZE D IN THE ABSENCE OF ANY LEGAL ACTION INITIATED AGAINST THE UNSCRUPULOUS EMPLOYEES. THIRDLY, THE ASSESSEE HAS ADMITTEDLY RECORDED THE UNACCOUNTE D SALES RELEVANT TO FINANCIAL YEAR (FY) 2008-09 AS RECORDED BY THE ASSE SSEE IN FY 2009-10 (AY 2010-11 IN QUESTION) ON DETECTION OF ERROR BY T HE AUDIT PARTY. THE ASSESSEE HAVING RECOGNIZED THE SALE AND CORRESPONDI NG DEBT OUTSTANDING TO BE RECOVERED FROM THE EMPLOYEES SO I NDULGED PROBABLE ITA NO.123/AHD/2017 M/S. PANCHMAHAL DIST. CO.OP MILK PRODUCERS UNION LTD. VS. ACIT ASST.YEAR 2009-10 - 8 - IMPROPRIETY, THERE IS NO SCOPE FOR CLAIMING BUSINES S LOSS IN SUCH CIRCUMSTANCE. 12.3. NOTWITHSTANDING THE MERIT IN THE PLEA OF THE ASSESSEE THAT THE BOOK ENTRY IS NOT NECESSARILY REQUIRED TO BE PASSED IN T HE PROFIT & LOSS ACCOUNT FOR THE PURPOSES OF CLAIM OF DEDUCTION, WE SIMULTANEOUSLY OBSERVE THAT THE NARRATIVE GIVEN ON BEHALF OF THE A SSESSEE TOWARDS EMBEZZLEMENT OF LOSS IS NOT SUPPORTED BY ANY COGENT EVIDENCE. THE CORRECTNESS OF THE VERSION OF THE ASSESSEE THAT MISAPPROPRIATION/EMBEZZLEMENT OF SALE PROCEEDS HAS IRRETRIEVABLY HAPPENED IS NOT CORROBORATED BY ACTION TAKEN BY THE ASSESSEE THUS FAR. THE ASSESSEE HAS NEITHER RECOGNIZED THE SALE PROCEE DS AS NOT RECOVERABLE NOR HAS INITIATED ANY CRIMINAL ACTION A GAINST THE IDENTIFIABLE EMPLOYEES FOR CLAIMING NET OF EMBEZZLE MENT ON ACCOUNT OF MISAPPROPRIATION ETC. THE ASSESSEE HAS FAILED TO TH ROW LIGHT AS TO WHAT HAPPENED IN THE SUBSEQUENT YEARS TILL TODAY ON THIS SCORE. THEREFORE, THE NARRATIVE OF THE ASSESSEE TO CLAIM SUCH WHOPPING LO SS DOES NOT INSPIRE ANY CONFIDENCE. NEEDLESS TO SAY, THE ONUS FOR JUSTI FICATION OF CLAIM IS ON ASSESSEE. THE ASSESSEE HAS TOTALLY FAILED TO DISCHA RGE ONUS. WE THUS FIND THAT THE IMPUGNED ACTION OF THE AO AND CIT(A) IN DI SALLOWING SUCH BUSINESS LOSS IS ON A SOUND FOOTING. THEREFORE, WE DECLINE TO INTERFERE WITH THE ORDER OF THE CIT(A). 12.4. WE ALSO TAKE A LOOK AT THE ALTERNATIVE PLEA O F THE ASSESSEE THAT UNRECORDED SALE RELEVANT TO FY 2008-09 AS ACCOUNTED BY THE ASSESSEE IN FY 2009-010 (AY 2010-11 IN QUESTION) REQUIRES TO BE EXCLUDED FROM THE COMPUTATION BUT HOWEVER, FIND LITTLE MERIT IN SUCH PLEA. THE MILK FOR THE PURPOSES OF SALE HAS ADMITTEDLY BEEN LOADED AND TRA NSFERRED TO THE EMPLOYEES OF VARIOUS UNITS. THE SALE PROCEEDS IN RE SPECT OF THE QUANTITY OF MILK LOADED IN THE TRUCK WAS THUS ORDINARILY REQ UIRED TO BE ACCOUNTED FOR IN FY 2008-09 ITSELF. THE ASSESSEE HAS RECORDED THE SAME IN THE DIFFERENT (CURRENT) YEAR ON DETECTION OF MISMATCH. THE ACTION OF THE ASSESSEE IS THUS REVENUE NEUTRAL AND DOES NOT CALL FOR ANY INTERFERENCE. THE ALTERNATIVE PLEA RAISED BY THE ASSESSEE THEREFO RE ALSO FAILS. CONSEQUENTLY, WE DECLINE TO INTERFERE WITH THE ORDE R OF THE CIT(A). 12.5. AT THIS JUNCTURE, WE MAY HASTEN TO ADD THAT T HE OBSERVATIONS MADE IN THE PRESENT APPEAL SHALL NOT OPERATE AS ANY KIND OF ESTOPPEL IN ANY MANNER FOR CLAIM OF ANY DEDUCTION/LOSS/EXPENSE ARIS ING FROM THE IMPUGNED ISSUE IN ANY SUBSEQUENT YEAR, WHEN FOUND A LLOWABLE IN ACCORDANCE WITH LAW. ITA NO.123/AHD/2017 M/S. PANCHMAHAL DIST. CO.OP MILK PRODUCERS UNION LTD. VS. ACIT ASST.YEAR 2009-10 - 9 - 13. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO .2759/AHD/2013 FOR AY 2010-11 IS DISMISSED. FROM THE ABOVE ORDER, THERE REMAINS NO AMBIGUITY TH AT THE ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE FOR RS. 1,49,42,1 67/- ON ACCOUNT OF EMBEZZLEMENT LOSS PERTAINING TO THE PREVIOUS YEAR 2 009-10 RELEVANT TO THE A.Y. 2010-11. THUS IF THE ADDITION IS SUSTAINED IN THIS YEAR TOO THEN, IT WILL AMOUNT TO DOUBLE ADDITION OF THE SAME ITEM WHI CH IS CONTRARY TO THE SCHEME OF INCOME TAX PROVISIONS. THUS THE ADDITION HAS ALREADY BEEN MADE IN THE HANDS OF THE ASSESSEE ON SUBSTANTIVE BA SIS IN THE AY 2010- 11. THEREFORE, WE HAVE NO HESITATION IN REVERSING T HE ORDER OF AUTHORITIES BELOW. HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. THE ISSUE INVOLVED IN THE GROUND NO. 3 IS REGARDING CHARGING OF INTEREST UNDER SECTION 234A/B /C OF THE ACT WHICH IS CONSEQU ENTIAL AND NEEDS NO SPECIFIC ADJUDICATION. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 20/06/2018 SD/- SD/- JKTIKY ;KNO JKTIKY ;KNO JKTIKY ;KNO JKTIKY ;KNO OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 20/06/2018 PRITI YADAV, SR.PS ITA NO.123/AHD/2017 M/S. PANCHMAHAL DIST. CO.OP MILK PRODUCERS UNION LTD. VS. ACIT ASST.YEAR 2009-10 - 10 - !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. /01( % 2( / CONCERNED CIT 4. % 2( ( ) / THE CIT(A)-4, VADODARA. 5. 567 !(&01 , ) 01- , 8 / / DR, ITAT, AHMEDABAD 6. 79 :' / GUARD FILE. % & / BY ORDER, ' 5( !( //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 08/06/2018 (DICTATION-PAD 3 PA GES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13/06/2018 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 19/06/2018 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER