2011 (12) TMI 509 - AT - Income Tax

Unexplained cash credit u/s.68 - Held that - Assessee has proved the purchases as well as the sales transactions. The shares have been sold through BSE and it is not alleged that these transactions are also off market. All these facts clearly prove that the transactions are genuine and the same cannot be doubted unless and untill the other participants like depository known as Action Financial Services (India) Ltd. is also proved to be bogus or in connivance with the Penny Stock scam and even the sale conducted through Anugrah Stock and Broking Pvt. Ltd. is proved to be bogus. In our opinion when overwhelming documentary evidence is available to prove the purchase and sale transactions part of which has already been accepted by the revenue in A.Y 2004-05 then a mere statement by the broker who has sold the shares to the assessee that this was an accommodation entry cannot lead to a conclusion that the whole transaction was bogus. In these circumstances we are of the view that the sale and purchase of the shares stand proved and should be assessed under the head capital gains. Disallowance of 5% commission on the bogus transfer of purchase and sale of shares - Held that - Firstly there is no evidence on record to show that any amount or premium was paid for entering into in this transaction. Secondly since we have already accepted the transactions to be genuine therefore this issue becomes infructuous and no addition can be made on account of 5% premium. In these circumstances we set aside the order of the ld. CIT(A) and hold that the assessee has entered into genuine transaction of purchase and sale of shares.

Summary

Issues Involved:
1. Whether the gross sale consideration of Rs. 23,44,985/- claimed as long-term capital gains should be treated as unexplained cash credit under Section 68.
2. Whether the addition of Rs. 1,17,249/- as unexplained expenditure under Section 69C on account of commission/service charges payable to the broker is justified.

Issue-wise Detailed Analysis:

Issue 1: Unexplained Cash Credit under Section 68

In the case of the assessee, a search revealed that cash and jewelry were found, and it was alleged that the assessee had manipulated share transactions to obtain artificial capital gains. The shares in question were those of M/s Robinson Worldwide Trade Ltd., purchased from M/s. DPS Shares & Securities Pvt. Ltd. During the assessment, it was found that these transactions were accommodation transactions, as confirmed by the directors of M/s. DPS Shares & Securities Pvt. Ltd. in their statements. The AO concluded that the capital gains were bogus based on these statements.

Before the CIT(A), the assessee argued that the shares were purchased and sold through proper channels, with all transactions documented and the consideration received via account payee cheques. The CIT(A) upheld the AO's decision, citing a Penny Stock scam and the general modus operandi of fabricating capital gains using Penny Stocks.

Upon appeal, the ITAT found that the CIT(A) dismissed the appeal based on generalizations about the Penny Stock scam without properly examining the specifics of the case. The ITAT noted that the documentary evidence provided by the assessee, including the purchase and sale transactions, dematerialization of shares, and receipt of payments through cheques, proved the genuineness of the transactions. The ITAT emphasized that the onus was on the revenue to prove the connection between the assessee and the alleged accommodation entries, which was not established. The ITAT concluded that the transactions were genuine and should be assessed under capital gains.

Issue 2: Addition of Rs. 1,17,249/- as Unexplained Expenditure under Section 69C

The CIT(A) had confirmed the addition of Rs. 1,17,249/- as unexplained expenditure on account of commission/service charges payable to the broker, despite the assessee's claim that no such expenditure was incurred. The ITAT found that there was no evidence on record to show that any commission or premium was paid for the transactions. Since the ITAT accepted the transactions as genuine, the issue of unexplained expenditure became infructuous, and no addition could be made on this account.

Conclusion:

The ITAT set aside the order of the CIT(A) and held that the assessee had entered into genuine transactions of purchase and sale of shares, thus allowing the appeals. The ITAT emphasized the importance of documentary evidence over circumstantial evidence and statements when determining the genuineness of transactions. The appeals were allowed in favor of the assessee, and the transactions were to be assessed under the head of capital gains.