2015 (3) TMI 801 - AT - Income Tax

Validity of reopening of assessment - validity of reasons recorded - Held that - As per the reason to believe for reopening, it is noted by the Assessing Officer that in the information forwarded by Addl. DIT (Inv.), Meerut to the Investigation Wing, Lucknow, it was stated that M/s H. B. Relan & Co., Karol Bagh, Delhi was providing accommodation entries of short term / long term capital gain in lieu of cash received from intending beneficiaries and Smt. Manju Bansal i.e. the assessee, is one of beneficiary. It is further noted by the Assessing Officer that to verify the genuineness of the transactions, letters were issued by the ADIT (Inv.), Lucknow to different stock exchanges and it was found that the date of purchase, date of sale and price of scripts were not corroborated with the information provided by the assessee. From these reasons, it is apparent that the Assessing Officer has not merely acted upon the information provided by Addl. DIT (Inv.), Meerut to the Investigation Wing, Lucknow but further enquiries were made and it was noted by Assessing Officer that the assessee has made purchases of these shares during 03/09/99 to 04/10/99 at a cost of ₹ 3,37,445/- and these shares were sold during 11/09/2000 to 30/11/2000 at a hefty sale consideration of ₹ 48,41,763/- within a period of 13 months from the date of purchase. Enquiries were made from various stock exchanges and also from the brokers before initiating the assessment proceedings. Considering these facts, the reopening proceedings are validly initiated - Decided against assessee. Additions made on realized on sale of shares - LTCG OR income from other sources - Held that - In the present case the assessee has furnished copy of sale and purchase bill, contract note, share certificates etc. The assessee has also furnished the official quotation from various stock exchanges. the evidences brought on record by the assessee in support of the claim of long term capital gain cannot be rejected by the Revenue without bringing adverse material on record and merely on the basis of some statement of some broker. The theory of human probability is also not attracted in the present case because this is noted that the assessee is engaged in the speculation transactions in share also and therefore, the judgment of Hon'ble Apex Court in the case of CIT v. DURGA PRASADMORE 1971 (8) TMI 17 - SUPREME Court and SUMATI DAYAL v. CIT 1995 (3) TMI 3 - SUPREME Court are not rendering any help to the Revenue in the facts of the present case. We, therefore, hold that in the facts of the present case, as discussed above, the claim of the assessee regarding long term capital gain deserves to be accepted. - Decided in favour of assessee.

Issues Involved:
1. Validity of reopening proceedings under Section 147.
2. Merits of additions made by the Assessing Officer regarding the sale of shares.

Detailed Analysis:

1. Validity of Reopening Proceedings under Section 147:
The appellant challenged the reopening of assessment under Section 147, arguing that the proceedings initiated on 06.12.2005 were neither validly initiated nor concluded as per the law. The appellant contended that the reasons recorded by the Assessing Officer on 30.11.2005 were deficient, lacking relevant material or information to entertain a "reason to believe" that income chargeable to tax had escaped assessment. The appellant also argued that the enquiry report from the investigation wing could not constitute relevant material for initiating proceedings under Section 147.

The Tribunal considered the rival submissions and noted that the appellant had filed a Writ Petition before the Hon'ble Allahabad High Court challenging the validity of reopening proceedings, which did not grant any relief or stay against the reopening proceedings. It was found that the Assessing Officer had valid reasons to initiate the reassessment proceedings, supported by further enquiries and verification of transactions from various stock exchanges and brokers. The Tribunal concluded that the reopening proceedings were validly initiated and declined to interfere with the order of CIT(A) on this issue. Accordingly, these grounds were rejected.

2. Merits of Additions Made by the Assessing Officer:
The appellant contested the addition of Rs. 48,41,763 realized on the sale of shares, arguing that the full particulars of income, including the date and cost of acquisition of shares, were duly disclosed. The appellant provided various documents, such as application forms for purchase of shares, contract notes, sales bills, account statements, share certificates, and listing reports, to substantiate the transactions.

The Tribunal examined the decision of CIT(A), which relied on the principles laid down in CIT v. Durga Prasad More and Sumati Dayal v. CIT, emphasizing the surrounding circumstances and human probabilities over documentary evidence. The CIT(A) held that the transactions were bogus, as the appellant had no previous history of dealing in shares and had shown exorbitant gains.

However, the Tribunal found that the appellant had engaged in speculation transactions in shares, indicating experience and knowledge in share transactions. The Tribunal noted that the appellant had furnished official quotations from stock exchanges and other supporting documents, which were consistent with the sale prices disclosed. The Tribunal observed that the Revenue had not brought any positive adverse material on record, except for a statement from a broker alleging accommodation entries.

The Tribunal referred to a similar case, Mohit Agarwal vs. ACIT, where the documentary evidence provided by the assessee was deemed sufficient to counter the statements of brokers. The Tribunal emphasized that the apparent must be treated as real unless proved otherwise, and the Revenue must provide reasons for rejecting the documentary evidence.

In conclusion, the Tribunal held that the evidences brought on record by the appellant could not be rejected without bringing adverse material on record. The Tribunal directed the Assessing Officer to accept the appellant's claim of long-term capital gain. Accordingly, these grounds of the appellant were allowed.

Final Judgment:
The appeal of the assessee was partly allowed, with the Tribunal upholding the validity of the reopening proceedings under Section 147 and accepting the appellant's claim regarding long-term capital gains on the sale of shares.

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