2013 (10) TMI 423 - AT - Income Tax

Genuineness of transaction - Capital loss suffered by the assessees on sale of shares was not genuine Held that - Both the parties submitted that the matter may be restored to the file of the AO with direction to frame the assessments de novo, after discarding the evidence of Shri Ashok Gupta, on the basis of other evidence on record, and after giving opportunity of hearing to the assessee - It shall be in the interest of justice to restore these issues to the file of the AO with direction to frame de novo assessments in these cases, after discarding the evidence of Shri Ashok Gupta, on the basis of other material/evidence and after allowing sufficient opportunity of hearing to the assessees.

Issues Involved:
1. Confirmation of capital loss disallowance by CIT(A)
2. Effect of High Court's direction to discard evidence of a witness
3. Restoration of assessments by AO based on other evidence
4. Cancellation of penalties under section 271(1)(c) in light of restored assessments

Issue 1: Confirmation of capital loss disallowance by CIT(A)
The appeals related to the assessment year 1997-1998, where the main issue was the confirmation by CIT(A) of the AO's disallowance of capital loss on the sale of shares as not genuine. The Tribunal had directed the AO to allow cross-examination of a witness, Shri Ashok Gupta, and put the onus on the assessee to produce him. The High Court set aside the Tribunal's order and directed to discard the evidence of Shri Ashok Gupta while considering the appeals. The assessment order primarily relied on Shri Ashok Gupta's statement, and the High Court remanded the issue to the Tribunal to frame the assessment afresh based on other available evidence after discarding Shri Ashok Gupta's evidence.

Issue 2: Effect of High Court's direction to discard evidence of a witness
The High Court directed to discard the evidence of Shri Ashok Gupta while considering the appeals, emphasizing that there was sufficient independent evidence on record to support the finding that the transaction was not genuine. The High Court clarified that the onus to produce Shri Ashok Gupta was on the assessee, and failure to do so could lead to complications. The Tribunal was requested to rehear the appeals, with the directive to discard Shri Ashok Gupta's evidence and consider other contentions of the parties independently.

Issue 3: Restoration of assessments by AO based on other evidence
Both parties agreed to restore the matter to the AO for de novo assessment after discarding Shri Ashok Gupta's evidence and considering other material on record. The Tribunal directed the AO to frame the assessments expeditiously based on other evidence, ensuring a fair opportunity for the assessees to present their case. The assessments were to be completed promptly, with cooperation from the assessees.

Issue 4: Cancellation of penalties under section 271(1)(c) in light of restored assessments
In light of the assessments being set aside for de novo assessment, the penalties under section 271(1)(c) were also cancelled. The AO retained the authority to re-initiate penalty proceedings based on the fresh assessments if deemed necessary according to the law. The appeals related to penalties were allowed in line with the restoration of assessments for de novo consideration.

This judgment highlights the importance of considering all available evidence, the implications of discarding specific witness evidence, and the procedural aspects of restoring assessments for fresh consideration while ensuring fairness and compliance with legal requirements.

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