2013 (7) TMI 966 - AT - Income Tax

Income from sale of shares - AO treated the long term capital gain as bogus - Held that - The statement of Mr.Mukesh Chokshi was recorded sometime in the year of 2009, whereas transaction of purchase and sales were held in assessment year 2002-03 & 2003-04. Taking into consideration all these aspects and taking into consideration the various decision of the Tribunal, which have been confirmed by the Hon ble jurisdictional High Court, hold that the transaction for purchase and sale of shares in the present case also cannot be held as bogus as no material was found against the assessee directly.

Summary

Issues:
Appeal against CIT(A) order regarding treatment of long term capital gain on sale of shares as unexplained income and commission paid to an individual.

Detailed Analysis:

Issue 1: Treatment of Long Term Capital Gain
The AO observed long term capital gains on the sale of shares of a company, purchased and sold through a company involved in providing accommodation entries in share transactions. The AO considered the gain as unexplained income due to the modus operandi of providing bogus bills for commission. The CIT(A) upheld this decision, leading to the appeal.

Analysis: The Tribunal considered previous decisions where similar transactions were found genuine, emphasizing that no direct evidence was found against the assessee. The Tribunal noted that the statement of the individual involved was recorded years after the transactions in question, leading to the conclusion that the transactions were not bogus. Relying on precedents confirmed by the High Court, the Tribunal deleted the addition of the long term capital gain.

Issue 2: Alleged Commission Payment
Additionally, an amount was added as commission paid to an individual for facilitating the long term capital gain transaction.

Analysis: The Tribunal, after considering the facts and precedents, held that since the main addition of long term capital gain was deleted, the commission payment was also deleted. The Tribunal allowed the appeal in part, deleting both the additions.

In conclusion, the Tribunal allowed the appeal in part, deleting the additions related to long term capital gain and commission payment. The decision was based on the lack of direct evidence against the assessee and previous judgments confirming similar transactions as genuine.