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The only effective issue raised by assessee in its appeal filed with Tribunal in ITA No. 468/Chny/2017 for asst. yr. 2011-12 which is before us for adjudication is with respect to disallowance of loss to the tune of Rs. 8,61,13,095 on pre-closure of securitization agreement with Axis Bank Ltd. (Formerly UTI Bank Ltd.) with respect to assessee’s loan portfolio securitized with Axis Bank Ltd. (formerly UTI Bank Ltd.). During the course of assessment proceedings conducted by learned AO under s. 143(3) r/w s. 143(2) of the 1961 Act, it was observed by AO that assessee had debited in its P&L a/c a sum of Rs. 8,61,13,095 under the head ‘Loss on pre-closure of securitization’. The AO asked assessee to explain the expenditure booked in its P&L a/c. The assessee submitted before AO that total profit on securitization of loans has been computed on the assumption that securitization agreement will run for full tenure and is booked, but when loan is pre-terminated, the profits pertaining to the unexpired portion of the tenure of the loan, is reversed or paid back to the bank which is termed as loss on pre-termination.

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Sec. 28(i) of Income-tax Act, 1961 -Business income - The appeal is directed against the common order of CIT(A) for the A.Yrs. 2010-11 to 2012-13 before ITAT saying that CIT(A) erred in upholding the action of the AO of disallowing the actual loss of Rs. 8,61,13,095 arising due to payments made by appellant towards premature termination of the securitization agreement with Axis Bank (earlier UTI Bank), an unrelated party. ITAT allowed the appeal of the revenue holding that :- The Revenue cannot sit in arm chair of businessman to question each and every business decision, unless malice, fraud or is a tax evasion device is shown by Revenue. The onus is on AO to show that this loss claimed by assessee is tainted with malice, fraud or is a tax evasion device adopted by asses. Thus, the matter is remitted back to the AO for limited verification of working computation of claim of loss of Rs. 8.61 crores claimed by assessee. - L&T HOUSING FINANCE LTD. V/s DY. CIT - [2020] 203 TTJ 835 (ITAT-CHENNAI)

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