2014 (1) TMI 889 - AT - Income Tax

Addition made u/s 68 of the Act Transactions not genuine Held that - This is a case of sale of shares - Unlike the case where the assessee issues shares and collects money, in a case of sale of shoes the degree of burden of proof is not the same - In case of sale of shares, one asset i.e. shoes is converted into another asset i.e. cash - No new asset is acquired by the assessee - If sold at a higher rate, the difference is profit subject to tax - if the assessee give the identity of the person it should be sufficient The decision in CIT vs. Medshave Health Care Ltd. 2010 (2) TMI 120 - DELHI HIGH COURT - the assessee company had been holding the shares which were sold by it during the year and that it was on this basis that the Commissioner of Income Tax (Appeals) had arrived at a conclusion that there was no reason to hold that the assessee company did not own these shares - there was no reason to hold these transactions to be sham transactions or the credits to be unexplained cash credits Decided against Revenue.

Summary

Issues:
Genuineness of sale of shares made by the assessee.

Analysis:
The appeal was filed by the Revenue against the order of the Commissioner of Income Tax (Appeals) pertaining to the Assessment Year 2003-04. The case involved the genuineness of the sale of shares by the assessee. The Assessing Officer initiated action under section 148 based on information received from the Investigation Wing regarding the purchasers of shares being involved in providing accommodation entries. The Revenue challenged the deletion of additions made by the Assessing Officer under section 68 of the Income Tax Act, 1961, as the genuineness of the transactions was not substantiated by the assessee.

The Commissioner of Income Tax (Appeals) considered the evidences filed by the assessee and granted relief, stating that the assessee had discharged its burden of providing basic details required for verification regarding the identity, creditworthiness, and genuineness of the creditors. The Revenue raised multiple grounds of appeal, arguing that the assessee failed to substantiate the genuineness of the transactions and obtained accommodation entries. The Revenue contended that the Commissioner did not appreciate that the assessee failed to discharge its onus under section 68 of the IT Act.

During the proceedings, the Revenue's representative focused on the lack of explanation regarding the identity, creditworthiness, and genuineness of the transactions related to the sale of shares. The assessee's counsel argued that the shares were purchased in earlier years and held as investments, providing supporting documents to establish the genuineness of the transactions. The Tribunal observed that the assessee had purchased shares as investments in previous assessment years and held them as such, and the only dispute was regarding the genuineness of the sale of shares.

The Tribunal referred to relevant case laws and emphasized that in the case of sale of shares, if the assessee provides the identity of the person, it should be considered sufficient. Citing precedents, the Tribunal highlighted that the sale proceeds were received through legitimate means, converting an asset into cash, and that the Assessing Officer's lack of investigation did not warrant disbelieving the transactions. Ultimately, the Tribunal upheld the order of the Commissioner of Income Tax (Appeals) and dismissed the appeal by the Revenue.

In conclusion, the judgment focused on the genuineness of the sale of shares by the assessee, emphasizing the importance of providing basic details and establishing the legitimacy of transactions. The Tribunal's decision was based on the evidence produced by the assessee, the lack of investigation by the Assessing Officer, and the precedents supporting the genuineness of the transactions involving the sale of shares.