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2015 (12) TMI 1711 - AT - Income TaxBogus long term capital gains - unexplained cash credit u/s 68 - Held that - The action u/s 68 of the Act has been taken merely on the basis of the statement of the third party. We find that the assessee s have duly proved the identity creditworthiness and genuineness of the broker from whom the sale proceeds of shares were received by the assesses and hence the resultant long term capital gains thereon cannot be doubted with. Hence there is no scope for making any addition u/s 68 of the Act in the facts and circumstances of the case. - Decided in favour of assessee. Disallowance u/s 14A of the Act read with Rule 8D - addition on the basis of the statement of the third party - Held that - Rule 8D of the Rules came into effect from 24.3.2008. We find that the Hon ble Bombay High Court in the case of Godrej & Boyce Manufacturing case (2010 (8) TMI 77 - BOMBAY HIGH COURT) had held that provisions of Rule 8D could be made applicable only from Asst Year 2008-09. The assessment year under appeal for all the assesses before us is Asst Year 2005-06 and hence the Learned AO erred in invoking Rule 8D of the Rules for making disallowance u/s 14A of the Act. In the absence of these factual findings AO cannot straight away resort to make disallowance u/s 14A of the Act and hence the addition made on this account for all the assesses are deleted. Accordingly the grounds raised by all the assesses in this regard are allowed.
Issues Involved:
1. Whether the assessee paid cash to arrange for bogus long-term capital gains in shares and if such gains should be treated as unexplained cash credit under Section 68 of the Income Tax Act. 2. Whether the disallowance under Section 14A of the Income Tax Act read with Rule 8D of the Income Tax Rules is applicable for the Assessment Year 2005-06. Issue-Wise Detailed Analysis: 1. Bogus Long-Term Capital Gains: The primary issue revolves around whether the assessee paid cash to arrange for bogus long-term capital gains in shares, which should be treated as unexplained cash credit under Section 68 of the Act. The case involved transactions in shares of M/s Continental Fiscal Management Limited and M/s Swastik Securities & Finance Ltd. A search and seizure operation at the premises of one Shri Narendra Kumar Shyamsukha revealed documents indicating bogus long-term capital gains involving the assessee. The assessee denied knowing Shri Narendra Kumar Shyamsukha and any involvement in such transactions. The broker through whom the transactions were conducted also denied any knowledge of Shri Narendra Kumar Shyamsukha. The Assessing Officer (AO) disbelieved the assessee's claims and made additions under Section 68, treating the long-term capital gains as unexplained cash credit. The CIT(A) upheld the AO's decision, leading to the assessee's appeal. The tribunal found that the assessee had provided sufficient documentary evidence, including purchase bills, contract notes, delivery challans, and demat account statements, which were not disputed by the authorities. The tribunal noted that the transactions were conducted through proper banking channels and registered brokers, and there was no direct evidence linking the assessee to any cash payments to Shri Narendra Kumar Shyamsukha. The tribunal emphasized that the presumption under Section 292C of the Act applies only to the person in whose possession the documents were found, not to third parties like the assessee. The tribunal concluded that the addition under Section 68 was based on mere suspicion and conjecture without any concrete evidence. The tribunal directed the AO to delete the addition made under Section 68, thereby allowing the assessee's appeal. 2. Disallowance under Section 14A: The second issue pertains to the disallowance under Section 14A of the Act read with Rule 8D of the Rules for the Assessment Year 2005-06. The tribunal noted that Rule 8D, which provides the method for computing disallowance under Section 14A, came into effect from 24.03.2008 and is applicable from Assessment Year 2008-09 onwards, as held by the Hon'ble Bombay High Court in Godrej & Boyce Manufacturing case. The tribunal observed that the AO had not provided any discussion or findings regarding whether the assessee had received any exempt income or incurred any expenditure for earning such income. In the absence of such findings, the AO could not resort to making a disallowance under Section 14A. Consequently, the tribunal deleted the disallowance made under Section 14A for all the assessees, allowing their appeals on this ground as well. Conclusion: The tribunal allowed the appeals of the assessee on both issues. It directed the deletion of additions made under Section 68 related to alleged bogus long-term capital gains and disallowed the application of Section 14A read with Rule 8D for the Assessment Year 2005-06. The judgment emphasized the need for concrete evidence and proper application of legal provisions before making additions or disallowances in tax assessments.
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