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2018 (12) TMI 1962 - AT - Income TaxBogus LTCG - onus to prove - bogus share transactions - whether transaction of sale of shares by the assessee was duly backed up by material/evidence including contract notes, de-mat statement, bank account reflecting transactions, the shares having been sold on the online platform of the stock exchange and each trade of sale of shares were having unique trade number and trade time? - HELD THAT - AO has not brought anything on record to show that assessee or the broker on instruction from assessee took part in or entered into transactions in scrips with the intention to artificially raise or depress the price and thereby automatically induced the innocent investors in the market to buy/sell their stock. It is not the case of the AO that assessee or broker as per instruction from assessee has manipulated the prices of the scrip. Even the market regular SEBI has not made any such specific finding in its report against the assessee. In any case, if the AO had any adverse material against the assessee, he was duty bound to furnish a copy to assessee and granted her an opportunity to rebut the same and also provided an opportunity to cross examine if the material adverse to assessee is used against the assessee to draw adverse inference. We also note that the coordinate benches in the case of Gautam Pincha 2018 (10) TMI 1969 - ITAT KOLKATA have upheld the assessee s claim of LTCG on purchase and sale of shares of M/s. NCL Research Financial Services Ltd. for AY 2014- 15, as in the instant case before us. So respectfully following the aforesaid decision and also taking note of the documents filed before us from which we note that assessee has discharged its onus to prove the genuineness of the transaction by filing the contract note of Purchase through registered broker of Bombay Stock Exchange and transaction happened through banking transaction Coordinate bench of this Tribunal in the case of Prakash Chand Bhutoria 2018 (7) TMI 46 - ITAT KOLKATA upheld the assessee s claim of LTCG on sale of shares as in the instant case before us so respectfully following the decision and also taking note of the documents filed before us from which we note that assessee has discharged its onus to prove the genuineness of the transaction of the purchase of shares by filing the share certificate along with share transfer advice and the purchases having taken place through bank transaction and later bonus share allotment letter - The addition based on a common/general report of DIT (Inv.) and there is nothing in the report specifically against the assessee, cannot be the basis for making the addition or draw adverse inference against the assessee. So the action of AO/Ld. CIT(A) cannot be sustained and therefore, the claim of exempt income on LTCG on sale of scrips of M/s. NCL has to be allowed and, therefore, the addition on this issue is directed to be deleted. Appeal of assessee allowed.
Issues Involved:
1. Legitimacy of Long Term Capital Gain (LTCG) claims on the sale of shares. 2. Validity of evidence submitted by the assessee to support the LTCG claims. 3. The role of the Assessing Officer (AO) and Commissioner of Income Tax (Appeals) [CIT(A)] in rejecting the LTCG claims. 4. The impact of SEBI and DGIT(Inv.) reports on the assessment of the LTCG claims. 5. The principle of natural justice concerning the right to cross-examine witnesses. Detailed Analysis: 1. Legitimacy of Long Term Capital Gain (LTCG) Claims on the Sale of Shares: The primary issue in this case was the legitimacy of the assessee's claim of LTCG amounting to Rs. 46,83,790/- on the sale of shares of M/s. NCL Research Ltd. and M/s. Unno Industries Ltd., which was claimed as exempt under Section 10(38) of the Income-tax Act, 1961. The AO added back the entire sale consideration to the assessee's income, labeling the transactions as sham and aimed at tax evasion. The Tribunal, however, noted that the assessee had provided substantial evidence to support the legitimacy of the transactions, including purchase bills, broker's contact notes, D-mat statements, and bank statements. 2. Validity of Evidence Submitted by the Assessee to Support the LTCG Claims: The Tribunal emphasized that the assessee had submitted all necessary documents to substantiate her claims, such as purchase bills, registered broker's contact notes, D-mat statements, and bank statements. These documents indicated that the transactions were conducted through recognized stock exchanges and were supported by proper third-party documentation. The Tribunal found that the AO and CIT(A) did not provide any concrete evidence to dispute the authenticity of these documents. 3. The Role of the Assessing Officer (AO) and Commissioner of Income Tax (Appeals) [CIT(A)] in Rejecting the LTCG Claims: The Tribunal criticized the AO and CIT(A) for rejecting the assessee's claims based on general observations and suspicions without providing specific evidence against the assessee. The Tribunal noted that the AO's reliance on a general report from the DGIT(Inv.) and SEBI without confronting the assessee with specific adverse evidence or providing an opportunity for cross-examination was a violation of the principles of natural justice. The Tribunal held that the AO and CIT(A) failed to establish that the transactions were collusive or manipulated. 4. The Impact of SEBI and DGIT(Inv.) Reports on the Assessment of the LTCG Claims: The AO had relied on information from the DGIT(Inv.) and SEBI reports, which indicated that certain penny stocks were used for generating bogus LTCG. However, the Tribunal pointed out that these reports were general in nature and did not specifically implicate the assessee. The Tribunal emphasized that the AO did not bring any specific evidence on record to prove that the assessee's transactions were part of any collusive arrangement. The Tribunal stated that suspicion, however strong, cannot replace concrete evidence. 5. The Principle of Natural Justice Concerning the Right to Cross-Examine Witnesses: The Tribunal highlighted the importance of the principle of natural justice, specifically the right to cross-examine witnesses. The Tribunal noted that the AO did not provide the assessee with an opportunity to cross-examine the witnesses or confront the adverse material used against her. The Tribunal cited several judicial precedents emphasizing that evidence collected from third parties cannot be used against an assessee unless the assessee is given an opportunity to rebut the evidence and cross-examine the witnesses. Conclusion: The Tribunal allowed the appeal in favor of the assessee, directing the AO to delete the addition of Rs. 46,83,790/- made to the assessee's income. The Tribunal held that the assessee had provided sufficient evidence to substantiate her claim of LTCG, and the AO and CIT(A) failed to provide specific evidence to dispute the legitimacy of the transactions. The Tribunal also emphasized the importance of adhering to the principles of natural justice, particularly the right to cross-examine witnesses and confront adverse evidence. The Tribunal's decision was based on the lack of concrete evidence against the assessee and the improper rejection of the assessee's documentary evidence by the revenue authorities.
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