2018 (10) TMI 1634 - AT - Income Tax

Long term capital gains claimed by the assessee as exempt u/s.10(38) - unexplained expenditure being commission paid on the share transactions. - Held that - Transactions whether real or sham, requires a revisit by the ld. Assessing Officer. Similar directions as given in the cases of Vimalchand Gulabchand, Praveen Chand, Gatraj Jain & Sons (HUF) and Mahendra Kumar Bhandari 2018 (4) TMI 701 - ITAT CHENNAI), read alongwith the directions given in the case of Heerachand Kanunga 2018 (4) TMI 701 - ITAT CHENNAI are given herealso. Useful reference may be made to the law laid down by Hon ble Apex Court in the case of CIT vs. Sunita Dhadda 2018 (3) TMI 1610 - SUPREME COURT OF INDIA , while affirming a judgment of Hon ble Rajasthan High Court 2017 (7) TMI 1164 - RAJASTHAN HIGH COURT , where the importance of providing an opportunity to cross examine the witness has been stressed. Their lordship held that this was an important constituent of natural justice. Only after all the steps required under law is complete, it can be ascertained whether claim of capital gains was bogus or not. The question of payment of any commission on the transactions and whether it was unexplained expenditure will arise only after this determination - set aside the orders of the lower authorities and remit the issue back to the file of the AO for consideration afresh - decided partly in favour of assessee for statistical purposes.

Summary

Issues Involved:
1. Denial of exemption of long-term capital gains under Section 10(38) of the Income Tax Act, 1961.
2. Treatment of a sum as unexplained income under Section 68 of the Income Tax Act, 1961.
3. Addition of an amount as unexplained expenditure being commission paid on share transactions.

Detailed Analysis:

1. Denial of Exemption of Long-Term Capital Gains:
The assessee claimed an exemption for long-term capital gains amounting to ?9,40,339/- under Section 10(38) of the Income Tax Act, 1961, arising from the sale of shares of M/s. Kailash Auto Finance Ltd. The lower authorities disbelieved the sale of shares, relying on reports from the Directorate of Income Tax (Investigation) Kolkata and Delhi, which identified M/s. Kailash Auto Finance Ltd as a penny stock company. The assessee argued that the purchase of shares was genuine and conducted off-market, while the sale was through a recognized stock exchange. The lower authorities, however, relied on statements and reports indicating that the prices were artificially inflated, and the transactions were considered bogus. The assessee contended that these statements and reports were not made available to him, violating the rules of natural justice. The Tribunal referred to similar cases where the issue was remitted back to the Assessing Officer for reconsideration, adhering to the principles of natural justice.

2. Treatment of a Sum as Unexplained Income:
The assessee was aggrieved by the treatment of ?9,72,000/- as unexplained income under Section 68 of the Income Tax Act, 1961. The Departmental Representative supported the lower authorities' decision, emphasizing that the assessee failed to provide evidence of how the shares were identified for off-market purchase. The Tribunal noted that the Assessing Officer had relied on an interim SEBI report, which was later vacated in the final report. It was highlighted that the lower authorities did not provide the assessee with an opportunity to explain or cross-examine the statements and reports used against him, violating the rules of natural justice. The Tribunal directed the Assessing Officer to reconsider the issue after providing the assessee an opportunity to respond to the evidence.

3. Addition of Unexplained Expenditure:
The assessee was also aggrieved by the addition of ?29,160/- as unexplained expenditure, being the commission paid on share transactions. The Tribunal noted that the determination of whether the transactions were real or sham needed to be revisited. Only after establishing the authenticity of the transactions could the issue of unexplained expenditure be addressed. The Tribunal set aside the lower authorities' orders and remitted the issue back to the Assessing Officer for fresh consideration.

Conclusion:
The Tribunal emphasized the importance of adhering to the rules of natural justice, particularly the opportunity to cross-examine witnesses and respond to evidence used against the assessee. The case was remitted back to the Assessing Officer for reconsideration, ensuring all procedural requirements were met. The appeal was partly allowed for statistical purposes.