2020 (12) TMI 1276 - AT - Income Tax

Reopening of assessment u/s 147 - assessee is beneficiary of bogus long term capital gain - HELD THAT - AO after analyzing the information received from the Directorate of Investigation recorded reasons u/s 148(2) by referring to the return of income filed by the assessee and information furnished by the assessee qua the sale of shares and long term capital gain and came to conclusion that assessee s income has escaped assessment accordingly. Reopening of assessment is based on specific information as the director of investigation has specifically provided information to the AO that assessee is beneficiary of bogus long term capital gain which is a part of big racket - we do not find any merit in the contentions of the assessee that there is no linkage between the report of the investigation wing, statement of various individual recorded during the search with the facts of the appellant. Though the statement of various persons/brokers/exit provider did not name the assessee, however, during overall investigation of the entire scam the assessee s name came to light that he is beneficiary of these bogus long term capital gain - we are inclined to dismiss the ground raised by the assessee on jurisdiction. Accordingly ground no. 1 is dismissed. Addition u/s 68 and u/s 69C of the Act being 5% commission on total sales proceeds - As we find merit in the arguments of the Ld A.R. that assessee has furnished all the informations, details, documentary evidences before the AO but the AO has not done any further verification to find out the truth or done anything to prove the money trail of the funds as has been alleged in the order. Under these circumstances, we are not in a position to sustain the order of Ld. CIT(A) upholding the order of AO wherein the long term capital gain has been held to be non genuine and bogus - we are inclined to set aside the order of Ld. CIT(A) and direct the AO to delete the addition made under section 68. Addition made by the AO towards commission paid on the accommodation entry is a consequential one and is also deleted.

Summary

Issues Involved:
1. Jurisdictional issue regarding the reopening of assessment proceedings under section 147 read with section 148 of the Income Tax Act.
2. Merits of the addition made by the Assessing Officer (AO) under section 68 and section 69C of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Jurisdictional Issue:
The first issue raised by the assessee challenges the confirmation of reopening of assessment proceedings by the Commissioner of Income Tax (Appeals) [CIT(A)] as made by the AO under section 147 read with section 148 of the Income Tax Act. The assessee argued that the reassessment was bad in law as it was reopened based solely on information from the investigation wing, without any tangible material connecting the appellant to the alleged transactions. The CIT(A) upheld the AO's action, noting that the AO had reason to believe that income had escaped assessment based on new facts unearthed by the Investigation Wing, thus justifying the reopening under section 147. The Tribunal observed that the AO received specific information from the Directorate of Investigation indicating that the assessee was a beneficiary of bogus long-term capital gains from penny stocks, which was part of a larger organized scam. The Tribunal found no merit in the assessee's contention that there was no linkage between the investigation report and the appellant's case. Consequently, the Tribunal dismissed the ground raised by the assessee on jurisdiction.

2. Merits of the Addition:
The second issue pertains to the merits of the addition made by the AO under section 68 (unexplained cash credits) and section 69C (unexplained expenditure) of the Income Tax Act. The AO added ?41,48,39,241/- under section 68, treating the long-term capital gains as non-genuine, and ?2,07,41,962/- under section 69C as commission paid for arranging artificial capital gains. The CIT(A) upheld the AO's order, noting that the shares of M/s. Shrinath Commercial and Finance Ltd. were manipulated to realize bogus gains, and the financial position of the company did not justify the increase in share prices.

The assessee argued that all necessary documents, such as contract notes, D-mat account statements, and bank statements, were provided to substantiate the transactions. The assessee contended that the transactions were carried out through recognized stock exchanges and registered brokers, with payments made through banking channels, and thus, the transactions were genuine. The Tribunal noted that the AO primarily relied on the investigation report without bringing any specific evidence to disprove the documents provided by the assessee. The Tribunal found merit in the assessee's argument that the AO did not conduct further verification to prove the alleged money trail. The Tribunal referred to several judicial precedents, including decisions of the Hon'ble Bombay High Court and Rajasthan High Court, which supported the assessee's case.

The Tribunal concluded that the AO failed to provide concrete evidence to substantiate the claim that the transactions were non-genuine. Consequently, the Tribunal set aside the order of the CIT(A) and directed the AO to delete the addition made under section 68. Since the addition under section 68 was deleted, the consequential addition under section 69C was also deleted.

Conclusion:
The Tribunal allowed the appeals of the assessee partly, setting aside the additions made by the AO under sections 68 and 69C, and upheld the reopening of the assessment under section 147 read with section 148. The detailed legal reasoning and reliance on judicial precedents played a crucial role in the Tribunal's decision.