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2011 (10) TMI 704 - AT - Income TaxAddition u/s 68 - Held that - As find from the remand report that the AO declined to examine his witnesses nor allowed the assessee the opportunity of cross examination. We also note even though in the remand proceeding the CIT(A) expressly directed the AO to investigate the alleged trail of cash the AO did not bring on record any evidence to substantiate his conclusion that assessee s own cash was returned to him in form of cheques. Failure on the part of the AO to even investigate the alleged cash trail justifies the CIT(A) s conclusion that the AO had no material or evidence with him to prove that the capital gain earned by assessee on sale of shares represented assessee s undisclosed income. We find that in the present case the confessional statement of Shri Khemka was not backed by any other independent evidence. On the other hand the assessee s explanations were backed by relevant documentary evidences which substantiated purchase & sale of shares. Having regard to the totality of the facts and evidences as brought on record and examined by the CIT(A) we find that there was no infirmity in the order of the CIT(A) deleting the addition of ₹ 67,04,678/- made u/s 68 of the Act. Accordingly we uphold the order of the CIT(A) and dismiss the revenue s appeal.
Issues Involved:
1. Deletion of addition made on account of rejection of assessee's claim of long-term capital gain exempt from tax under section 10(38) of the Income Tax Act. 2. Allegation of accommodation entries and introduction of unaccounted money. 3. Validity of statements recorded under section 132(4) of the Income Tax Act. 4. Examination of documentary evidence supporting the purchase and sale of shares. 5. Application of principles of natural justice. Issue-wise Detailed Analysis: 1. Deletion of Addition Made on Account of Rejection of Assessee's Claim of Long-Term Capital Gain Exempt from Tax under Section 10(38): The Revenue challenged the deletion of Rs. 67,04,678/- made by the Assessing Officer (AO) on account of rejection of the assessee's claim of long-term capital gain exempt from tax under section 10(38) of the Income Tax Act. The AO argued that the transactions of purchase and sale of shares were not genuine and represented the introduction of the assessee's unaccounted money. The CIT(A) found contradictions in the AO's reasoning, noting that the purchase and sale of shares were backed by cogent evidence, including contract notes, share transfer forms, and demat account statements. The CIT(A) held that the AO did not provide any material to disprove the genuineness of the transactions and allowed the exemption under section 10(38). 2. Allegation of Accommodation Entries and Introduction of Unaccounted Money: The AO alleged that the assessee introduced unaccounted money through accommodation entries, citing statements from brokers and other parties admitting to providing such entries. The CIT(A) noted that these statements were recorded in the absence of the assessee and were later retracted. The CIT(A) emphasized the lack of material evidence to support the AO's allegations and highlighted the absence of any investigation tracing the alleged cash trail. The CIT(A) concluded that the AO's findings were not substantiated by any corroborative evidence. 3. Validity of Statements Recorded under Section 132(4): The AO relied heavily on statements recorded under section 132(4) of the Income Tax Act, where brokers admitted to providing accommodation entries. The CIT(A) observed that these statements were not recorded in the presence of the assessee, and the assessee was not given an opportunity to cross-examine the witnesses. The CIT(A) held that the principles of natural justice were violated, as the assessee was not allowed to rebut the statements used against him. The CIT(A) also found that the retraction affidavits were not properly considered by the AO. 4. Examination of Documentary Evidence Supporting the Purchase and Sale of Shares: The CIT(A) meticulously examined the documentary evidence provided by the assessee, including contract notes, share transfer forms, demat account statements, and letters of allotment. The CIT(A) found that these documents substantiated the genuineness of the transactions. The CIT(A) noted that the shares were purchased and sold through recognized stock exchanges, and the payments were received through account payee cheques. The CIT(A) held that the AO failed to provide any evidence to disprove the authenticity of these documents. 5. Application of Principles of Natural Justice: The CIT(A) criticized the AO for not allowing the assessee an opportunity to cross-examine the witnesses whose statements were used against him. The CIT(A) emphasized that the principles of natural justice demand that the assessee be given a fair opportunity to rebut the evidence presented by the Revenue. The CIT(A) noted that the AO did not conduct any further investigation to substantiate the allegations and relied solely on the statements recorded under section 132(4). The CIT(A) held that the AO's approach was contrary to the principles of natural justice and set aside the addition made by the AO. Conclusion: The ITAT upheld the order of the CIT(A), dismissing the appeals filed by the Revenue. The ITAT agreed with the CIT(A)'s findings that the purchase and sale of shares were genuine and supported by credible evidence. The ITAT also concurred that the AO's reliance on statements recorded under section 132(4) without allowing cross-examination violated the principles of natural justice. The ITAT concluded that the AO failed to provide any material evidence to substantiate the allegations of accommodation entries and introduction of unaccounted money.
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