2022 (4) TMI 1479 - AT - Income Tax

Bogus LTCG - investigation report of department which concluded that prices of certain scripts were being manipulated to generate artificial capital gains - assessees has also arranged long term capital gains on the script of Sulabh Engineers Services Ltd. which was part of 84 penny stocks identified by the department in it s investigation report - HELD THAT - As documentary evidences for purchase and sale of shares has not been disputed by the department and neither any adverse findings has been made on such evidences. The only reason for rejecting the claim of the assessees is the investigation report of department and certain adverse statements of the some persons. The assessees had requested to Assessing Officer for making available complete statements of such persons and also wanted to cross examine the witnesses of Revenue. A copy of request letter to Assessing Officer is placed - AO in turn requested the assessees to produce the witnesses which is not in accordance with law as the Revenue was responsible for making available it s witnesses before assessees for their cross examination. The issue of cross examination was also not considered properly by ld. CIT(A). Therefore there is a violation of principles of natural justice also. Various benches of the Tribunal under similar facts and circumstances has decided similar issues in favour of the assessees which has been relied on by the assessees. The Lucknow Bench of the Tribunal also under similar circumstances in various cases has decided similar issues in favour of the assessee in various cases - Decided in favour of assessee.

Summary

Issues Involved:
1. Legality of assessment order under Section 153A.
2. Applicability of Section 153A in absence of incriminating material.
3. Validity of reliance on investigation reports.
4. Relevance of income computation for assessment.
5. Legitimacy of disallowance of Long Term Capital Gain (LTCG) claimed under Section 10(38).
6. Basis of addition of sums aggregating Rs. 61,665,721.
7. Efforts made for cross-examination of witnesses.
8. Impact of absence of cross-examination on assessment.
9. Adverse observations and allegations by lower authorities.
10. Reliance on facts of the case.
11. Adherence to principles of natural justice.
12. Right to amend grounds of appeal.

Issue-wise Detailed Analysis:

1. Legality of Assessment Order under Section 153A:
The appellants argued that the assessment order passed under Section 153A was not in consonance with the settled position of law regarding search cases. The Tribunal noted that the assessment was based on an investigation report without any independent enquiry by the Assessing Officer (AO). The AO failed to corroborate the investigation report with any relevant material or conduct a separate enquiry, thus violating the principles of natural justice.

2. Applicability of Section 153A in Absence of Incriminating Material:
The Tribunal observed that the provisions of Section 153A could not be applied in the absence of any incriminating material. The AO relied solely on the investigation report, which was not confronted with the appellant in the right perspective. The Tribunal emphasized that the assessment should be based on concrete evidence rather than presumptions.

3. Validity of Reliance on Investigation Reports:
The appellants contended that the reliance on investigation reports did not constitute relevant material for assessment. The Tribunal agreed, stating that the AO should have conducted an independent enquiry and corroborated the information received from the investigation wing. The Tribunal highlighted that the AO's reliance on pre-existing statements without proper enquiry was insufficient.

4. Relevance of Income Computation for Assessment:
The Tribunal found that the computation of income was not relevant for the assessment as no incriminating material was found during the search that could impinge upon the genuineness of the unsecured loan and capital gain shown in the return of income. The Tribunal emphasized the need for concrete evidence to support the assessment.

5. Legitimacy of Disallowance of LTCG Claimed under Section 10(38):
The Tribunal noted that the appellants had provided sufficient documentary evidence to support the genuineness of the LTCG claimed under Section 10(38). The AO's disallowance was based on the investigation report without disproving the documentary evidence. The Tribunal cited various case laws where similar claims were allowed and emphasized the need for independent enquiry by the AO.

6. Basis of Addition of Sums Aggregating Rs. 61,665,721:
The Tribunal found that the addition was based on whims, surmises, and conjectures, relying on case laws distinguishable on facts. The Tribunal reiterated the need for concrete evidence and independent enquiry to justify such additions.

7. Efforts Made for Cross-examination of Witnesses:
The Tribunal observed that the AO did not make sufficient efforts to provide cross-examination of the concerned persons. The AO's request for the appellants to produce witnesses was not in accordance with the law. The Tribunal emphasized the AO's responsibility to make witnesses available for cross-examination.

8. Impact of Absence of Cross-examination on Assessment:
The Tribunal highlighted that the absence of an opportunity for cross-examination of persons giving culpable statements vitiated the assessment. The Tribunal cited various judgments emphasizing the need for cross-examination to uphold the principles of natural justice.

9. Adverse Observations and Allegations by Lower Authorities:
The Tribunal noted that the adverse observations and allegations made by the lower authorities were contrary to the facts, material, and evidence available on record. The Tribunal emphasized the need for assessments to be based on concrete evidence rather than presumptions.

10. Reliance on Facts of the Case:
The Tribunal reiterated that the assessment should be based on the facts of the case and the evidence provided by the appellants. The Tribunal emphasized the need for independent enquiry and corroboration of information received from investigation reports.

11. Adherence to Principles of Natural Justice:
The Tribunal found that the order of the CIT(A) was against the principles of natural justice, erroneous, and not tenable in law and on facts. The Tribunal emphasized the need for adherence to the principles of natural justice in the assessment process.

12. Right to Amend Grounds of Appeal:
The Tribunal acknowledged the appellants' right to add, amend, delete, or modify any of the grounds of appeal till the final date of hearing and disposal of the appeal.

Conclusion:
The Tribunal allowed the appeals partly, emphasizing the need for independent enquiry and concrete evidence to support the assessment. The Tribunal directed the AO to allow the claim of capital gain under Section 10(38) and deleted the assumed commission. The Tribunal upheld the principles of natural justice and the need for cross-examination of witnesses.