2018 (9) TMI 1785 - AT - Income Tax

Bogus LTCG - addition u/s 68 - Held that - There is not even a single material during the course of hearing which could suggest the assessee to have engaged in any kind of foul play. As decided in NAVNEET AGARWAL, LEGAL HEIR OF LATE KIRAN AGARWAL VERSUS ITO, WARD-35 (3) , KOLKATA 2018 (8) TMI 509 - ITAT KOLKATA we are bound to consider and rely on the evidence produced by the assessee in support of its claim and base our decision on such evidence and not on suspicion or preponderance of probabilities. No material was brought on record by the AO to controvert the evidence furnished by the assessee. Under these circumstances, we accept the evidence filed by the assessee and allow the claim that the income in question is a bonafide Long Term Capital Gain arising from the sale of shares and hence exempt from income tax. - Decided in favour of assessee.

Issues Involved:
1. Correctness of treating Long Term Capital Gains (LTCG) as bogus.
2. Addition under Section 68 of the Income Tax Act.
3. Disallowance of 5% commission on alleged bogus LTCG.
4. Application of principles of natural justice and evidence.

Detailed Analysis:

1. Correctness of treating Long Term Capital Gains (LTCG) as bogus:
The assessee declared LTCG from the sale of shares in two companies, M/s Unno Industries Ltd and Sharp Trading Finance Ltd. The Assessing Officer (AO) suspected the transactions due to the significant appreciation in share prices, which seemed disproportionate to the companies' financials and market trends. The AO concluded that the transactions were sham, aimed at converting unaccounted cash into tax-exempt income under Section 10(38). The AO relied on reports from the Directorate of Income Tax (Investigation) indicating that the LTCG was derived with the help of entry operators.

2. Addition under Section 68 of the Income Tax Act:
The AO treated the LTCG as unexplained cash credits under Section 68, adding the amount of ?95,06,050/- to the assessee's income. The CIT(A) upheld this addition, emphasizing that the transactions were accommodation entries for bogus LTCG. The CIT(A) referenced various judicial precedents to support the view that the transactions were suspicious and the documentation provided by the assessee was self-serving and insufficient to prove the genuineness of the LTCG.

3. Disallowance of 5% commission on alleged bogus LTCG:
In addition to the LTCG, the AO disallowed 5% commission amounting to ?4,65,896/-, treating it as unexplained cash credits. The CIT(A) confirmed this disallowance, reinforcing the view that the entire transaction was dubious.

4. Application of principles of natural justice and evidence:
The assessee argued that all transactions were genuine, supported by documentary evidence including share purchase applications, allotment letters, share certificates, bank statements, and demat account statements. The tribunal noted that the AO did not confront the assessee with any specific evidence from the investigation reports and did not provide an opportunity for cross-examination, violating principles of natural justice. The tribunal emphasized that suspicion, however strong, cannot replace concrete evidence. Various judicial precedents were cited, highlighting that the burden of proof lies on the revenue to establish that the apparent is not the real.

Tribunal's Findings:
The tribunal found that the AO's addition was based on suspicion and generalizations without concrete evidence. The tribunal noted that the assessee provided substantial documentary evidence supporting the genuineness of the transactions, which the AO failed to disprove. The tribunal referenced several judicial decisions where similar additions were deleted due to lack of specific evidence against the assessee. Consequently, the tribunal concluded that the LTCG was genuine and deleted the additions of ?95,06,050/- and ?4,65,896/-.

Conclusion:
The assessee's appeal was partly allowed, with the tribunal deleting the additions made by the AO and CIT(A) on the grounds of treating LTCG as bogus and disallowing the 5% commission. The tribunal emphasized the importance of adhering to principles of natural justice and relying on concrete evidence rather than suspicion.

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