2021 (2) TMI 1247 - AT - Income Tax

Unexplained credit u/s 68 - Bogus LTCG - HELD THAT - We are not in agreement with the conclusion drawn by the Ld. CIT(A) that the long term capital gain earned by the assessee from sale of shares is a non genuine transaction and accordingly we set aside the order of Ld. CIT(A) and direct the AO to delete the addition made under section 68 of the Act and further direct the AO to grant exemption under section 10(38) of the Act in respect of long term capital gain. The ground no. 2 is allowed.

Summary

Issues Involved:
1. Reopening of completed assessment under section 147 of the IT Act.
2. Addition of Rs. 1,86,64,374 as unexplained credit under section 68 of the IT Act.
3. Addition of Rs. 3,73,287 as commission paid to earn LTCG.
4. General grounds of appeal and leave to amend grounds.

Issue-Wise Detailed Analysis:

1. Reopening of Completed Assessment under Section 147 of the IT Act:
The assessee contended that the reopening of the assessment under section 147 was erroneous and contrary to the provisions of the Income Tax Act. However, since the appeal was allowed on merits, the legal ground challenging the reopening was not adjudicated.

2. Addition of Rs. 1,86,64,374 as Unexplained Credit under Section 68 of the IT Act:
The primary issue was whether the long-term capital gain (LTCG) claimed by the assessee on the sale of shares was genuine. The assessee had declared an income of Rs. 8,19,650 and claimed Rs. 1,86,04,374 as exempt under section 10(38) of the Act from the sale of shares of M/s. Four K Animation Ltd. The Assessing Officer (AO) reopened the case based on information from the Kolkata Investigation Wing, which suggested that the assessee was a beneficiary of LTCG from penny stocks deemed suspicious and bogus. Despite the assessee providing various documents supporting the purchase and sale of shares, the AO treated the gains as bogus, citing the weak fundamentals of the company and the modus operandi of the transactions. The CIT(A) upheld the AO's decision, concluding that the transactions were sham and the gains were not genuine.

The Tribunal, however, found that the AO and CIT(A) relied heavily on third-party statements and circumstantial evidence without substantive material directly implicating the assessee. The Tribunal noted that the assessee provided comprehensive documentation, including purchase and sale evidence, bank statements, and Demat account details, which were not adequately refuted by the Revenue. The Tribunal emphasized that suspicion, however strong, cannot replace legal evidence. The Tribunal referenced several judicial precedents, including decisions from the Supreme Court and High Courts, which supported the assessee's claim that the transactions were genuine. Consequently, the Tribunal directed the AO to delete the addition and grant the exemption under section 10(38).

3. Addition of Rs. 3,73,287 as Commission Paid to Earn LTCG:
The AO had added Rs. 3,73,287, assuming it was commission paid for arranging the LTCG, and the CIT(A) upheld this addition. Since the Tribunal allowed the assessee's appeal on the merits of the LTCG issue, it also directed the AO to delete this consequential addition.

4. General Grounds of Appeal and Leave to Amend Grounds:
The general grounds of appeal and the request for leave to amend the grounds were not specifically adjudicated as the primary issues were resolved in favor of the assessee.

Conclusion:
The Tribunal allowed the appeals of the assessees, directing the deletion of the additions made by the AO and granting the claimed exemptions. The orders were pronounced in the open court on 16/02/2021.