2021 (2) TMI 1284 - AT - Income Tax

Unexplained cash credit u/s 68 - Bogus LTCG - Addition based on third party statement - onus to prove - Reliance on findings rendered by investigation wing, Kolkata merely on the basis of statement of various operators, entry providers and stock brokers including the statement of Shri Anil Aggarwal - HELD THAT - AO has nowhere established the involvement of the assessee in price rigging or price manipulation. No collusion between the assessee and alleged entry providers or operators is shown to have existed. Another noteworthy point is that no opportunity to cross-examine the persons making adverse statement was provided to the assessee despite being specifically pointed out before lower authorities. There is no admission or evidence based finding that any cash got exchanged between the assessee and any of the alleged bogus entities. It is trite law that no additions could be made merely on the basis of suspicion, conjectures or surmise. The addition thus made purely on the basis of third-party statement recorded at the back of the assessee could not be sustained in the eyes of law unless the same are confronted to the assessee and the same are backed by any corroborative material. No effective investigation is shown to have been carried out by Ld. AO to dislodge the assessee s claim by bringing on record cogent evidences as well as confronting the same. However, except for general allegations as narrated in the investigation wing report, there is no evidence which would link assessee s involvement in jacking up the prices of the shares with a view to earn artificial gains. Onus casted upon revenue to corroborate the impugned additions by controverting the documentary evidences furnished by the assessee and by bringing on record, any cogent material to sustain those additions, could not be discharged by the revenue. The whole basis of making additions is third party statement and no opportunity of cross-examination has been provided to the assessee to confront the said parties. As against this, the assessee s position that that the transactions were genuine and duly supported by various documentary evidences, could not be disturbed by the revenue. Finally, going by the factual matrix and respectfully following the earlier view of coordinate bench in the cited order, we are of the considered opinion that the additions thus made by Ld. AO and confirmed by Ld. CIT(A) are not sustainable in the eyes of law. Therefore, we are inclined to delete the same. Consequentially, the addition of estimated commission also stands deleted. - Decided in favour of assessee.

Summary

Issues Involved:
1. Confirmation of additions under Section 68 for unexplained cash credit.
2. Denial of exemption under Section 10(38) for Long-Term Capital Gains (LTCG).
3. Estimated addition on account of alleged commission expenses under Section 69C.

Detailed Analysis:

1. Confirmation of Additions under Section 68 for Unexplained Cash Credit:

The assessee contested the order of the Commissioner of Income Tax (Appeals) [CIT(A)], which confirmed the addition of certain amounts under Section 68 as unexplained cash credit. The assessee had claimed exemption under Section 10(38) for LTCG earned on the sale of shares of M/s Sunrise Asia Limited (SAL). The Assessing Officer (AO) denied this exemption, alleging that the gains were premeditated and bogus, aimed at routing unaccounted money as exempt income. The AO based this conclusion on investigations by the Kolkata investigation wing, which suggested that the gains were part of a scheme involving rigged share prices and circular trading by brokers. Statements from various operators and brokers supported these allegations.

The Tribunal found that the assessee had provided substantial documentary evidence, including contract notes, demat statements, and bank statements, to support the genuineness of the transactions. The AO's reliance on third-party statements, without providing the assessee an opportunity for cross-examination, was deemed insufficient. The Tribunal emphasized that no additions could be made merely on suspicion or conjecture without corroborative material evidence. The Tribunal cited several precedents, including the Supreme Court's ruling in M/s Andaman Timber Industries V/s CCE, which underscored the necessity of cross-examination to uphold the principles of natural justice.

2. Denial of Exemption under Section 10(38) for Long-Term Capital Gains (LTCG):

The AO denied the exemption under Section 10(38) for LTCG, alleging that the gains were not genuine and were part of a scheme to convert unaccounted money into exempt income. The AO's conclusion was based on the investigation wing's findings and statements from brokers and operators involved in price rigging. The CIT(A) upheld this denial, asserting that the assessee had misused the provisions of Section 10(38) and that the share price manipulation was evident.

The Tribunal, however, noted that the assessee had fulfilled all the conditions for claiming exemption under Section 10(38). The shares were purchased through banking channels, held in a demat account, and sold through a recognized stock exchange, with all transactions documented and supported by evidence. The Tribunal found no direct evidence linking the assessee to the alleged price rigging or manipulation. The Tribunal reiterated that the AO's conclusions were based on general allegations and third-party statements without any specific evidence against the assessee. The Tribunal highlighted that the burden of proof had shifted to the revenue to substantiate the allegations, which it failed to do.

3. Estimated Addition on Account of Alleged Commission Expenses under Section 69C:

The AO also made an estimated addition under Section 69C for alleged commission expenses related to the sale transactions, which was contested by the assessee. The AO estimated these expenses at 4% of the transaction value, based on the assumption that the assessee had paid commissions to brokers for arranging the alleged bogus LTCG.

The Tribunal found no evidence to support the AO's estimation of commission expenses. The assessee denied any such payments, and there was no corroborative material to substantiate the AO's claims. The Tribunal concluded that the addition under Section 69C was based on mere suspicion and conjecture without any tangible evidence.

Conclusion:

The Tribunal concluded that the additions made by the AO and confirmed by the CIT(A) were not sustainable. The Tribunal emphasized that the revenue failed to provide any corroborative material evidence to support the allegations of bogus LTCG and commission expenses. The Tribunal deleted the additions under Sections 68 and 69C, allowing the assessee's appeal. The Tribunal also noted that the levy of interest and initiation of penalty were consequential and did not require specific adjudication.

Order:

The appeal was partly allowed, with the additions under Sections 68 and 69C being deleted. The order was pronounced in the open court on 03rd February, 2021.