2024 (12) TMI 1592 - AT - Income Tax

Addition u/s 37(1) - disallowance of payment towards VAT and CST - amounts said to have been misappropriated by the tax consultants - loss resulting from embezzlement by an employee or agent of a business - Assessee failed to produce the challan/proof of payment of VAT and the CST stating that in the circumstances such production is beyond the control of the assessee - as per DR amounts said to have been misappropriated by the tax consultants in connivance with the CTO office in respect of which the inquiry by the CID is pending HELD THAT - Assessee claims to be a victim of the fraud committed by the agent and entitled to claim deduction in respect of such sum also which the authorities below denied. To establish the fraud assessee filed complaint against the tax auditor and produced the copies of FIR and the CID report before the learned CIT(A). But the authorities below refused to grant any relief u/s 37(1) of the Act. On this aspect in the case of Badridas Daga 1958 (4) TMI 2 - SUPREME COURT Hon ble Apex Court affirmed the view that the loss resulting from embezzlement by an employee or agent of a business is admissible as a deduction u/s 10(1) of the 1922 Act corresponding to section 28 of the Act if it arises out of the carrying on of the business and is incidental to it. Associated Banking Corporation of India Ltd. 1964 (10) TMI 7 - SUPREME COURT held that the loss must be deemed to have arisen only when the employer comes to know about it and realizes that the amounts embezzled cannot be recovered. All the factual aspects require consideration by the authorities below in the light of the decisions reported in the cases supra. It would therefore be in the interest of justice to set aside the impugned order and restore the issue to the file of the learned AO for verification of the facts in respect of entitlement of the assessee to claim deduction of the amount said to have been misappropriated by the VAT consultants. We therefore set aside the impugned order and restore the issue to the file of AO for verification of the facts in respect of entitlement of the assessee to claim deduction of the amount said to have been misappropriated by the VAT consultants. Grounds are accordingly treated as allowed for statistical purposes.

Summary

The core legal issues considered by the Tribunal in this appeal are:

1. Whether the assessee is entitled to claim deduction under section 37(1) of the Income Tax Act, 1961, for the amounts allegedly misappropriated by the tax consultant in respect of VAT, CST, and RD cess payments claimed as expenditure but not credited to the Government treasury.

2. Whether the Assessing Officer was justified in making additions on a best judgment basis for the disputed amounts due to lack of proof of payment to the Government and non-filing of return in response to reopening notice under section 148.

3. Whether the assessee's plea of being a victim of fraud by the tax consultant, supported by FIR and CID investigation reports, entitles it to relief despite the ongoing criminal inquiry.

4. Consequentially, the correctness of levy of interest under sections 234A and 234B, pending verification of the primary issue.

Issue-wise Detailed Analysis:

Issue 1: Entitlement to Deduction under Section 37(1) for Misappropriated Amounts

The relevant legal framework includes section 37(1) of the Income Tax Act, which allows deduction of any expenditure incurred wholly and exclusively for the purpose of business or profession, subject to exceptions. The Tribunal also relied on judicial precedents interpreting loss due to embezzlement or misappropriation by agents as deductible if arising out of business operations.

The Tribunal examined the authoritative decisions of the Hon'ble Supreme Court and High Courts, notably:

• Badridas Daga vs. CIT (1958): Loss resulting from embezzlement by an employee or agent is admissible as a deduction if it arises out of and is incidental to the business.
• Associated Banking Corporation of India Ltd. vs. CIT (1965): The loss is recognized only when the employer becomes aware of the embezzlement and realizes recovery is not possible. Mere occurrence of embezzlement without knowledge or reasonable prospect of irrecoverability does not constitute a trading loss.
• Hopkin and Williams (Travancore) Ltd. v. CIT (1967): Deduction is allowable only if the assessee has made reasonable attempts to recover the loss or if such attempts are futile due to the financial position of the wrongdoer.

The Tribunal noted that the assessee produced evidence including copies of FIR and CID investigation reports indicating that the tax consultant committed fraud by preparing bogus challans and misappropriating payments. The assessee contended that it paid the amounts to the consultant who acted as its agent, and therefore, the loss suffered due to such misappropriation is deductible.

However, the Assessing Officer and the CIT(A) took the view that since the disputed amounts were not credited to the Government treasury, the deduction could not be allowed. They emphasized that the assessee must prove actual remittance to the Government to claim the deduction under section 43B or otherwise.

The Tribunal observed that the authorities below did not fully consider the legal principles governing embezzlement losses and the evidence of fraud submitted by the assessee. The Tribunal held that the question of allowing deduction for the misappropriated amounts requires a detailed factual inquiry, including whether the assessee was aware of the fraud, the steps taken to recover the amounts, and the realistic possibility of recovery.

Consequently, the Tribunal set aside the impugned order and restored the matter to the Assessing Officer for verification of these factual aspects in light of the cited precedents. This approach ensures that the assessee's claim is adjudicated on a proper factual and legal basis rather than being rejected outright due to lack of direct proof of payment to the Government.

Issue 2: Validity of Best Judgment Assessment under Section 148

The reopening of assessment was triggered by information from the Commercial Tax Officer alleging short payment of sales tax through fake challan copies. The assessee failed to respond to notices and did not file a return in response to the reopening notice.

The Assessing Officer proceeded to complete assessment on best judgment basis, adding back the amounts claimed as VAT, CST, and RD cess expenses on the ground that no proof of payment was furnished.

The Tribunal did not directly challenge the validity of reopening or best judgment assessment but implicitly recognized that the reopening was based on credible information from the tax authorities and that the Assessing Officer was justified in seeking proof of payment. However, the Tribunal emphasized that the assessee's claim of loss due to fraud by its agent must be examined separately and cannot be summarily rejected.

Issue 3: Impact of Ongoing Criminal Investigation on Deduction Claim

The assessee submitted that an FIR was lodged and CID investigation was underway against the tax consultant for criminal breach of trust and forgery. The assessee argued that this criminal proceeding validates its claim of being a victim and entitles it to deduction.

The CIT(A) and Assessing Officer took the view that despite the criminal investigation, the deduction could only be allowed if the amounts were actually paid to the Government treasury. The Tribunal clarified that the existence of a criminal investigation does not preclude the assessee from claiming deduction if it satisfies the conditions laid down in judicial precedents regarding embezzlement losses.

The Tribunal's direction to verify the facts includes consideration of the criminal proceedings and their impact on the assessee's entitlement to deduction.

Issue 4: Levy of Interest under Sections 234A and 234B

Since the primary issue of disallowance of expenditure was restored for fresh consideration, the related issue of interest levy under sections 234A (for delay in filing return) and 234B (for default in payment of advance tax) was also restored to the Assessing Officer.

This ensures that interest liability is determined consistently with the outcome of the primary issue.

Significant Holdings:

The Tribunal succinctly encapsulated the legal reasoning on embezzlement losses as follows:

"In the case of Badridas Daga vs. CIT, the Hon'ble Apex Court affirmed the view that the loss resulting from embezzlement by an employee or agent of a business is admissible as a deduction under section 10(1) of the 1922 Act, corresponding to section 28 of the Act, if it arises out of the carrying on of the business and is incidental to it."

"It would be wrong to say that irrespective of other considerations, as soon as an embezzlement of the employer's funds takes place, whether the employer is aware or not of the embezzlement, there results a trading loss, and so long as there is a reasonable prospect of recovery of the embezzlement, trading loss in a commercial sense cannot be deemed to have resulted."

"If the assessee has made the necessary attempts to recover the loss from the persons concerned and had failed or if the assessee did not make such attempts, because it was useless to make them in view of the financial position of the persons concerned, then and then alone the loss could be allowed."

The core principles established are:

• Deduction for loss due to embezzlement by an agent is allowable if the loss arises out of the business and is incidental to it.
• Such loss is recognized only when the employer becomes aware of the fraud and concludes that recovery is not possible.
• The assessee must demonstrate bona fide efforts to recover the loss or justify the futility of such efforts.
• Proof of actual payment to the Government treasury is necessary for claiming deduction of tax payments; however, loss due to misappropriation by an agent can be separately claimed subject to verification.

Final determinations made by the Tribunal include:

• The impugned order disallowing the entire amount as expenditure is set aside.
• The issue is remanded to the Assessing Officer for detailed verification of facts regarding the misappropriation and the assessee's entitlement to deduction under section 37(1).
• The related issue of interest under sections 234A and 234B is also restored for reconsideration in light of the primary issue.
• The appeals are allowed for statistical purposes pending fresh adjudication.