2019 (8) TMI 1452 - AT - Income Tax

Bogus LTCG - Exemption u/s10(38) towards sale of equity shares - case was selected for scrutiny to verify the suspicions long term capital gains on shares in pursuance to the inputs from investigation wing - HELD THAT - AO has not examined/called for any evidences in respect of purchase/sale of alleged scripts. Assessee is therefore directed to provide all relevant documents to establish sound financial of alleged companies and that fluctuation in price was market driven. AO shall take all evidences into consideration and then decide the issue as per law. In the event de hors statement, there are overwhelming evidences and assessee is unable to establish genuineness of sale and purchase of alledged scripts, adverse view would be taken by holding the transaction to be sham. AO is directed to provide all statements recorded by investigation wing to assessee, referred to in assessment order. In the event, statements recorded are not of secondary and subordinate category, cross examination has to be granted to assessee. AO is directed to re-examine the case of assessee in the light of aforestated direction in accordance with law. Needless to say that proper opportunity shall be granted to assessee to represent its case as per. Assessee s appeal stands allowed for statistical purposes.

Summary

Issues:
Assessment of long term capital gains on sale of shares under section 10(38) - Allegation of procuring long term capital gains through a preconceived scheme - Denial of exemption by AO and CIT (A) - Right to cross-examine witnesses - Violation of natural justice - Directions for providing relevant documents and re-examining the case.

Analysis:
The appeal was filed against the order passed by the Ld. CIT (A) for the assessment year 2014-15 concerning the assessment of long term capital gains on the sale of shares under section 10(38). The assessee, an individual, declared total income of ?21,03,680, including an exemption claimed under section 10(38) amounting to ?56,40,493 for the sale of equity shares. The case was selected for scrutiny based on suspicions of long term capital gains. The assessing officer (AO) noted that the assessee sold 12,000 shares of a company for ?58,93,400. The assessee explained that the shares were originally purchased in physical form and later dematerialized before being sold through a recognized stock exchange. The AO concluded that the rise in share price was not based on commercial principles and market factors, alleging a preconceived scheme to procure long term capital gains. The AO also referred to SEBI's findings of the company being involved in providing bogus long term capital gains, leading to the denial of the exemption.

On appeal before the Ld. CIT (A), the observations and findings of the AO were upheld. The assessee then approached the Appellate Tribunal, raising a claim to cross-examine persons whose statements were used against them by the AO. The Tribunal acknowledged the right to cross-examine witnesses but noted that it is not an absolute right and depends on the circumstances of the case and the statute concerned. Citing relevant legal precedents, the Tribunal emphasized that each case must be decided based on facts and circumstances, surrounding circumstances, objective facts, evidence adduced, and reasonable conclusions.

The Tribunal directed the AO to examine all relevant documents provided by the assessee to establish the sound financial position of the companies involved and the market-driven fluctuation in share prices. The AO was instructed to consider all evidence and make a decision in accordance with the law. If the assessee fails to establish the genuineness of the sale and purchase of the shares, the transaction may be deemed sham. The AO was further directed to provide all statements recorded by the investigation wing to the assessee and grant cross-examination if necessary. The case was to be re-examined in light of these directions, ensuring proper opportunity for the assessee to represent their case.

Ultimately, the Tribunal allowed the ground raised by the assessee on the preliminary legal issue, and the appeal was allowed for statistical purposes.