M/S.THE ORIENTAL INSURANCE EMPLOYEES CO-OPERATIVE SOCIETY LIMITED, MUMBAI V. ITO 17(3)(4), MUMBAI

ITA 5199/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 6613 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 07-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI
• Keywords: Bad and doubtful debts
• Section: 37(1); 13; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 5199/MUM/2018 : A.Y : 2012 - 13 M/S. THE ORIENTAL INSURANCE EMPLOYEES CO - OPERATIVE SOCIETY LTD., ORIENTAL HOUSE, 7, JAMSHEDJI TATA ROAD, CHURCHGATE, MUMBAI 400 020. PAN : AAAJT0844K (APPELLANT) VS. ITO - 17(3)(4), MUMBAI (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI AKHTAR H. ANSARI DATE OF HEARING : 24/09/2019 DATE OF PRONOUNCEMENT : 05 /12/2019 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 28, MUMBAI DATED 02.07.2018 AND PERTAINS TO ASSESSMENT YEAR 2012 - 13. 2. THE GROUNDS OF APPEAL READ AS UNDER : - 1. THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF LD. A.O BY DISALLOWING RS.1 ,17,495/ - I.E. LOSS OCCURRED DUE TO EMBEZZLEMENT OF CASH U/S 37(1) OF THE INCOME TAX ACT, 1961. 2. WITHOUT PREJUDICE TO ABOVE, RS.1,17,495/ - OUGHT TO BE ALLOWED AS BUSINESS LOSS U/S 28 OF THE INCOME TAX ACT, 1961. 2 ITA NO. 5199/MUM/2018 THE ORIENTAL INSURANCE EMPLOYEES CO - OP. SOCIETY LTD. 3. WITHOUT PREJUDICE TO ABOVE, LD. CIT(A ) ERRED IN CONFIRMING THE ACTION OF LD. A.O BY DENYING THE DEDUCTION U/S 80P(2)(A)(I) OF THE INCOME TAX ACT, 1961 IN RESPECT OF DISALLOWANCE OF RS.1,17,495 MADE U/S 37(1) OF THE INCOME TAX ACT, 1961. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE CO URSE OF ASSESSMENT, THE ASSESSING OFFICER NOTED FROM THE PROFIT & LOSS ACCOUNT THAT ASSESSEE HAS DEBITED AN AMOUNT OF RS.1,17,495/ - AS BAD AND DOUBTFUL DEBT . IN RESPONSE, ASSESSEE SUBMITTED THAT THE SAID AMOUNT WAS ACTUALLY EMBEZZLEMENT LOSS BY ONE OF T HE EMPLOYEE WHO HAD MISAPPROPRIATED CASH DURING FINANCIAL YEARS PRIOR TO 2011 - 12 , THAT THE TOTAL MISAPPROPRIATION WAS OF RS.6,63,948/ - AND ASSESSEE COULD RECOVER ONLY RS.1,94,000/ - IN 2002 - 03 . THEREAFTER, THE BALANCE OF RS.4,69,948/ - WAS FOUND TO BE IRREC OVERABLE AND 25% THEREOF WAS WRITTEN OFF EVERY YEAR FROM 2010 - 11 TO 2013 - 14. THESE SUBMISSIONS OF THE ASSESSEE WERE REJECTED BY BOTH THE AUTHORITIES ON THE GROUND THAT SINCE THE AMOUNT HAS BEEN MENTIONED AS BAD DEBTS, ASSESSEE NOW CANNOT CLAIM THE SAME TO BE EMBEZZLEMENT LOSS. IN THIS REGARD, I FIND THAT IT IS SETTLED LAW THAT SUBSTANCE PREVAILS OVER FORM. IT IS EQUALLY SETTLED THAT ENTRIES IN THE BOOKS OF ACCOUNT ARE NOT DETERMINATIVE OF THE TRUE NATURE OF THE TRANSACTION. THE EXPLANATION OF ASSESSEE HAS NOT AT ALL BEEN DOUBTED OR FOUND TO BE FALSE. IN SUCH CIRCUMSTANCES, THE AUTHORITIES BELOW TAKING ADVERSE INFERENCE SIMPLY BECAUSE THE AMOUNT WAS CLAIMED AS BAD DEBT INSTEAD OF EMBEZZLEMENT LOSS IS TOTALLY UNSUSTAINABLE. MOREOVER, WHEN THE LOSS FINA LLY MATERIALISED AND CRYSTALLISED, THE ASSESSEE DECIDED TO WRITE IT OFF @ 25% EACH YEAR. NOW, THE AUTHORITIES BELOW ARE HOLDING THAT WHEN THERE WAS A CRYSTALLISED LOSS THERE WAS NO REASON THAT IT SHOULD BE SPREAD OVER FOUR YEARS AND ON THIS BASIS, THEY HA VE DISALLOWED THE CLAIM OF LOSS. IN THIS REGARD, IT IS SETTLED LAW THAT NO TAX CAN BE RECOVERED FROM THE ASSESSEE EXCEPT AS PERMISSIBLE BY LAW. WHEN THE AUTHORITIES BELOW ARE ACCEPTING THAT THE ENTIRE AMOUNT OF LOSS HAS CRYSTALLISED, ADVERSE INFERENCE 3 ITA NO. 5199/MUM/2018 THE ORIENTAL INSURANCE EMPLOYEES CO - OP. SOCIETY LTD. AG AINST ASSESSEE CANNOT BE TAKEN IF THE ASSESSEE BY MISTAKE SPREADS THE SAME TO FOUR YEARS. IT IS EQUALLY SETTLED LAW THAT THE REVENUE AUTHORITIES ARE NOT SUPPOSED TO TAKE ADVANTAGE OF THE IGNORANCE/MISTAKE OF THE ASSESSEE. IN THIS VIEW OF THE MATTER, IN M Y CONSIDERED OPINION, THE ORDER OF THE AUTHORITIES BELOW ARE UNSUSTAINABLE IN LAW. HENCE, I SET - ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND HOLD THE IMPUGNED AMOUNT IS ALLOWABLE AS BUSINESS LOSS. 4. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED. OR DER PRONOUNCED IN THE OPEN COURT ON 5 T H DECEMBER, 2019. SD/ - (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI, DATE : 5 T H DECEMBER, 2019 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, SMC BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI