2012 (5) TMI 311 - AT - Income Tax

Allegation of fictitious sale of shares - held that - Once the purchase of shares is not doubted, then in our considered view, the sale of same shares should not have been doubted. If assessee has invested his own money under the garb of fictitious sale of shares then where the actual shares purchased by assessee which were duly demated have gone. - since the purchase of shares is genuine, the sale of the same shares should have been treated as genuine. - Decided in favor of assessee. Unexplained jewellery - held that - This is a case of jewellery found relating to many persons in the family. - If all these facts are taken into consideration, then we are of the view that the addition of Rs. 1,50,000 is sustained and the remaining addition is deleted.

Issues Involved:
1. Limitation on the assessment made on 28th Dec., 2007.
2. Addition of Rs. 18,47,560 on account of long-term capital gain on sale of shares.
3. Initiation of proceedings under s. 132 and passing assessment under s. 153A.
4. Charging interest under ss. 234A, 234B, and 234C.
5. Addition of Rs. 2,95,241 out of total addition of Rs. 4,09,007 for unexplained jewellery.
6. Addition of Rs. 81,340 on account of excess stock.

Issue-wise Analysis:

1. Limitation on the assessment made on 28th Dec., 2007:
The cross-objection (C.O. No. 84/Jd/2009) regarding the assessment being barred by limitation was dismissed as it was not pressed by the assessee.

2. Addition of Rs. 18,47,560 on account of long-term capital gain on sale of shares:
The assessee's appeal was against the CIT(A)'s order confirming the addition, while the Department's appeal was against the CIT(A)'s order under s. 154 deleting the addition. The Tribunal found that the assessee had purchased shares of M/s Elite Capital and Management Services (P) Ltd., which were shown in the balance sheet and transferred to the Demat account. The sale of these shares was through proper banking channels. The AO's addition was based on a general statement by the broker, Shri Mahesh Batra, who admitted to issuing accommodation entries but did not specifically name the assessee. The Tribunal concluded that since the purchase of shares was genuine, the sale should also be treated as genuine. The Tribunal allowed the assessee's appeal, deleting the addition, and dismissed the Department's appeal as infructuous.

3. Initiation of proceedings under s. 132 and passing assessment under s. 153A:
The ground regarding the initiation of proceedings under s. 132 and the subsequent assessment under s. 153A was not pressed by the assessee and was dismissed.

4. Charging interest under ss. 234A, 234B, and 234C:
The issue of charging interest under ss. 234A, 234B, and 234C was considered consequential in nature. The Tribunal allowed consequential relief to the assessee, if any.

5. Addition of Rs. 2,95,241 out of total addition of Rs. 4,09,007 for unexplained jewellery:
During a search and seizure operation, jewellery weighing 3,274.85 gms. was found. The AO treated 1,000 gms. in the name of the assessee and the remaining as belonging to other family members. The CIT(A) allowed partial relief by sustaining an addition of Rs. 2,95,241. The Tribunal found that the addition sustained was on the higher side and considered the assessee's claim of receiving jewellery through a Will and on various occasions. The Tribunal sustained an addition of Rs. 1,50,000 and deleted the remaining addition.

6. Addition of Rs. 81,340 on account of excess stock:
The AO found excess stock of Rs. 81,340 during a search and did not accept the assessee's explanation regarding the stock valuation. The CIT(A) confirmed the AO's action. The Tribunal considered the gross profit ratio and found that the difference in stock valuation was negligible compared to the total stock of Rs. 20 lacs. The Tribunal deleted the addition of Rs. 81,340.

Conclusion:
The Tribunal allowed the assessee's appeal for the assessment year 2002-03, dismissed the Department's appeal for the same year, allowed the assessee's appeal for the assessment year 2006-07 in part, and dismissed the cross-objection for the assessment year 2004-05.

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