SHRI PARESH H GUDHAKA,MUMBAI vs. ITO WARD 1(3), KALYAN

Brief facts of the case are that the Assessing Officer in the assessment proceedings noted that information has been received that the assessee is a beneficiary of accommodation entry for loss in commodities through broker M/s. HRIM Comtrade. The Assessing Officer issued notice u/s. 133(6) to M/s. HRIM Comtrade. M/s. HRIM Comtrade informed the Assessing Officer that the assessee is not a client and no transaction has been entered. However, the Assessing Officer treated Rs. 26,65,396/- as undisclosed income of the assessee.

Before learned CIT(A), the assessee, inter alia, submitted that the assessee has not done any transaction through M/s. HRIM Comtrade and that it has not taken any such entry. However, earlier learned counsel of the assessee has agreed to the addition. Taking this into account, learned CIT(A)

We have heard both the counsel and perused the record. Learned counsel submitted that the assessee has not done any transaction through the said broker. He submitted that in the accounts of the assessee there is no such bogus loss accounted for. Hence, he submitted that without examining the facts, this addition has been made. Hence, learned counsel submitted that mere concession of earlier counsel of the assessee, cannot be taken as bar on the assessee to raise factual aspect which has never been examined by the Assessing Officer.

Upon careful consideration, I am of the opinion that it is the assessee’s claim that assessee has not taken any such bogus accommodation entries for loss. The Assessing Officer has only referred to the receipt of information and has not given any findings as to whether actually there is any such loss booked by the assessee or not. In these circumstances, in my considered opinion interest of justice will be served if the issue is remitted to the file of the Assessing Officer. The Assessing Officer shall examine as to whether there is any such entry of bogus loss in the books of account of the assessee and thereafter he shall decide the issue as per law after giving proper opportunity of being heard. Both the counsel fairly agreed to the above proposition.

In the result, assessee’s appeal is allowed for statistical purposes.