2012 (6) TMI 207 - AT - Income Tax

Unexplained investment - assessee is a non resident corporate entity registered with SEBI as a sub account under the FII addition was made on the ground that the assessee could not reconcile the transactions which were considered by the AO as unexplained investments Held that - assessee has been successful in identifying the real sub-account to whom the transactions mentioned in the CIB report were allocated and thus, has been able to reconcile the unconcealed transactions which had been treated as unexplained investment by the AO. In the light of the above, he submits that the said additional evidence appearing at pages 1 to 93 of the assessee s paper book may be admitted under Rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963. matter pertaining to all the grounds should go back to the file of the AO to examine the same afresh after considering the additional evidence filed by the assessee and according to law after providing reasonable opportunity of being heard to the assessee. Appeal partly allowed

Issues Involved:
1. Addition of undisclosed income under Section 69 of the Income Tax Act.
2. Treatment of the initial investment versus gross sale value for taxation.
3. Adherence to principles of natural justice.
4. Provision of complete details for reconciliation.
5. Application of tax rate under Section 115AD read with Section 111A.
6. Credit for advance tax paid.
7. Levy of interest under Section 234B.

Detailed Analysis:

1. Addition of Undisclosed Income Under Section 69:
The assessee filed a return declaring an income of Rs. 23,54,362/-. During scrutiny, the AO found discrepancies in share trading transactions, which the assessee could not reconcile. The AO treated these transactions as unexplained investments under Section 69, totaling Rs. 16,51,49,573/-, and taxed them as "Income from Other Sources" at 40%. The DRP upheld this addition, noting the assessee's failure to reconcile transactions despite multiple opportunities.

2. Treatment of Initial Investment Versus Gross Sale Value:
The assessee argued that only the initial investment, not the gross sale value, should be considered for addition under Section 69, and profits should be taxed as capital gains. However, the AO and DRP did not accept this argument due to the lack of reconciliation and evidence from the assessee.

3. Adherence to Principles of Natural Justice:
The assessee contended that the addition was made in contravention of natural justice principles. The AO and DRP provided multiple opportunities for reconciliation, which the assessee failed to utilize. Thus, the authorities concluded that the addition was justified.

4. Provision of Complete Details for Reconciliation:
The assessee claimed that the AO did not provide complete details necessary for reconciliation. However, the AO had furnished detailed transaction data from the BSE and brokers, which the assessee did not effectively reconcile or contest.

5. Application of Tax Rate Under Section 115AD Read with Section 111A:
The assessee argued for a 10% tax rate on capital gains under Section 115AD read with Section 111A, instead of 40% on the total transaction value. This argument was not accepted due to the classification of the transactions as unexplained investments.

6. Credit for Advance Tax Paid:
The assessee claimed that the AO did not grant credit for advance tax paid amounting to Rs. 1,71,760/-. This issue was not addressed in detail in the judgment, suggesting it may require further examination.

7. Levy of Interest Under Section 234B:
The assessee disputed the levy of interest under Section 234B amounting to Rs. 2,90,46,836/-. This issue was linked to the overall dispute regarding the addition of income and required further scrutiny based on the final determination of the case.

Additional Evidence and Remand:
The assessee submitted additional evidence, including broker confirmations and transaction details, post-assessment. The Tribunal admitted this evidence and remanded the case to the AO for fresh examination, considering the new evidence. The Tribunal directed the AO to re-evaluate the matter, providing the assessee a reasonable opportunity to be heard.

Conclusion:
The Tribunal's decision to admit additional evidence and remand the case for fresh examination indicates a partial allowance of the assessee's appeals for statistical purposes. The AO is to re-assess the transactions with the new evidence provided by the assessee.

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