2008 (4) TMI 753 - AT - Income Tax

Addition u/s 68 - sale procced of share treated as income from other sources - Long term capital gain - Purchase and Sale of Shares - genuineness of the transaction - HELD THAT - The transaction entered into by the assessee is duly supported by purchase bill, contract note, delivery and transaction of share in her name which are also reflected in the balance sheet as on 31-3-2001 and on 31-3-2001. The sale bill with delivery contract note for sale of receipt of payment through account payee bank draft in bank account are also proved from the payment and is enclosed in the Paper Book of the assessee. On the other hand, to controvert the claim of the assessee there is no evidence in the possession of the department but the doubt has been created because the assessee could not produce that much evidence as was required by the learned Assessing Officer. There is no even a single evidence to show that these transactions were not genuine and the assessee had income from any other source(s) which might have been introduced by her in her books in the guise of long term capital gain to avoid payment of tax. There is no evidence on record which can prove the sale consideration of shares which was duly supported by bills issued by broker and there is no evidence to prove that this amount represented unaccounted money of the assessee received in the guise of sale proceeds of shares. The learned Assessing Officer has not even invoked the provisions of section 68 and the fact remains that the assessee disclosed the sale of shares and receipt thereof in her return of income and has claimed exemption under section 54EC. So there is no case of treating these sales proceeds as income from other sources. Following the case of ITO v. Smt. Kusumlata 2006 (8) TMI 266 - ITAT JODHPUR , We decide the issue in favour of the assessee and the factual matrix supplement the version of the assessee and there being no evidence on record to supplant the contention of the assessee, there is no question of making addition on the amount under the provisions of section 68 of the Act. To further strengthen my above finding, reference may be made to the decision which was recently delivered in the case of CIT v. Anupam Kapoor 2007 (2) TMI 159 - PUNJAB AND HARYANA HIGH COURT . Hence, the addition in question cannot be made in the hands of the assessee u/s 68 and this amount is to be deleted from her hand. Appeal of the assessee is allowed.

Issues Involved:
1. Applicability of Section 68 of the Income-tax Act.
2. Genuineness of the share transactions.
3. Burden of proof on the assessee.
4. Validity of the addition made by the Assessing Officer.
5. Relevance of judicial precedents.

Issue-wise Detailed Analysis:

1. Applicability of Section 68 of the Income-tax Act:
The assessee contended that the provisions of section 68 of the Act are not applicable to the given case and addition of Rs. 2,19,140 could not have been made by resorting to provisions of section 68 at all. The Tribunal found no evidence on record to prove that Rs. 2,19,140 was not the sale consideration of shares. The amount was duly supported by bills issued by the broker, and there was no evidence to prove that this amount represented unaccounted money of the assessee received in the guise of sale proceeds of shares. Hence, the Tribunal held that there was no case for treating these sales proceeds as income from other sources.

2. Genuineness of the Share Transactions:
The assessee provided evidence of the purchase and sale of shares, including demand drafts, share certificates, contract notes, and bank statements. The Tribunal noted that the transactions were supported by documentary evidence, and there was no evidence to suggest that the transactions were not genuine. The Tribunal also noted that the addresses of the stock brokers were not found to be correct, which merely raised doubts about the genuineness of the transactions but did not conclusively prove them to be bogus.

3. Burden of Proof on the Assessee:
The assessee had discharged her onus by providing all necessary documents to support the purchase and sale of shares. The Tribunal observed that the assessee could not possibly keep track of the purchaser of the shares sold through a broker. The Tribunal also noted that the assessee received payments through bank drafts, and the stock broker was a member of the stock exchange and registered with SEBI. The Tribunal found that the assessee had provided sufficient evidence to prove the genuineness of the transactions.

4. Validity of the Addition Made by the Assessing Officer:
The Assessing Officer had added the sale proceeds of shares as income from other sources, citing the inability to verify the identity of the purchaser and the broker. However, the Tribunal found that there was no evidence to support the Assessing Officer's conclusion that the transactions were bogus. The Tribunal noted that the assessee had provided all necessary documents, and there was no evidence to prove that the amount represented unaccounted money. Hence, the Tribunal held that the addition made by the Assessing Officer was not valid.

5. Relevance of Judicial Precedents:
The Tribunal referred to several judicial precedents, including the cases of Income-tax Officer v. Rajiv Agarwal, CIT v. Dualatram Rawatmull, and CIT v. Anupam Kapoor. In these cases, it was held that if the assessee had provided sufficient evidence to support the transactions, the addition could not be made merely based on doubts or presumptions. The Tribunal found that the facts of the present case were similar to those in the cited precedents, and hence, the addition made by the Assessing Officer was not justified.

Conclusion:
The Tribunal concluded that the addition of Rs. 2,19,140 made by the Assessing Officer under section 68 of the Income-tax Act was not justified. The assessee had provided sufficient evidence to prove the genuineness of the share transactions, and there was no evidence to suggest that the amount represented unaccounted money. Hence, the Tribunal allowed the appeal of the assessee and deleted the addition.

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