2023 (1) TMI 1240 - AT - Income Tax

Bogus LTCG - unexplained credit - transactions made in the scrips through the broker - Claim u/s 10(38) denied - HELD THAT - As decided in Nilesh Agarwal, HUF 2021 (2) TMI 540 - ITAT JAIPUR AO in the entire assessment order has not made reference to single documentary evidence which can be said to be an incriminating material against the assessee to show that the assessee has availed accommodation entry of bogus Long Term Capital Gain. Therefore, the mere suspicion cannot be a ground for treating the transaction as bogus in the absence of any evidence or material on record. Accordingly, when the assessee has produced all the relevant documentary evidences to establish the genuineness of the transaction and there is no contrary evidence to doubt the correctness of the evidences produced by the assessee then treating the transaction of purchase and sale as sham by the AO is not justified. Therefore, all these facts established the genuineness of the transaction. No error in assessee s claim of exemption of long term capital gains and the addition made by the AO u/s 68 by treating the Long Term Capital Gain on sale of shares as unexplained cash credit is hereby directed to be deleted. Appeal filed by the assessee is allowed.

Summary

Issues Involved:
1. Reopening of assessment.
2. Addition of Rs. 6,12,367/- as bogus Long Term Capital Gain (LTCG) claimed under section 10(38) of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Reopening of Assessment:
The assessee contested the reopening of the assessment by the Assessing Officer (AO), arguing that the AO had not applied his mind and had no concrete information indicating escaped assessment. The AO's reasons for reopening were based on suspicions and whims, without necessary enquiry or investigation. The assessee provided detailed documentation including computation of income, date-wise statements of long-term capital gains, contract notes, bank statements, and evidence of sales consideration received through banking channels.

The appeal cited several judicial precedents:
- Nilesh Agrawal HUF v. ITO: The Tribunal held that mere suspicion cannot justify treating transactions as bogus without evidence.
- PCIT v. Pramod Jain: The Rajasthan High Court ruled in favor of the assessee, stating that the tribunal was justified in deleting additions made on account of alleged bogus LTCG.
- PCIT v. Smt. Krishna Devi: The Delhi High Court emphasized that the AO must conduct independent enquiries and corroborate information received from investigation wings.

The Tribunal concluded that the reopening of the assessment was unjustified and bad in law, as it was based on mere suspicion without concrete evidence.

2. Addition of Rs. 6,12,367/- as Bogus LTCG:
The AO added Rs. 6,12,367/- to the assessee's income, alleging that the LTCG claimed under section 10(38) was from bogus transactions involving penny stocks. The AO noted that the assessee had purchased shares of an unlisted company, which were later converted through amalgamation into shares of M/s Blueprint Securities Limited, resulting in a significant gain. The AO argued that the transactions were sham and could not stand the test of human probability, citing several judicial pronouncements to support this view.

The assessee countered by providing detailed documentation and evidence of the transactions, including purchase bills, bank statements, demat account statements, and STT paid on the sale of shares. The assessee argued that the AO's conclusions were arbitrary and lacked cogent evidence. The appeal cited judicial precedents supporting the genuineness of transactions when proper documentation is provided:
- Nilesh Agrawal HUF v. ITO: The Tribunal held that transactions cannot be deemed bogus based on suspicion alone when the assessee provides all relevant evidence.
- PCIT v. Pramod Jain: The Rajasthan High Court ruled in favor of the assessee, emphasizing the need for concrete evidence to support allegations of bogus transactions.

The Tribunal noted that the issue was covered by the ITAT Jaipur's decision in the case of Nilesh Agarwal HUF v. ITO, where the Tribunal held that the AO's suspicion alone could not justify treating transactions as bogus without concrete evidence. The Tribunal concluded that the assessee had provided sufficient evidence to establish the genuineness of the transactions and allowed the appeal, directing the deletion of the addition made by the AO.

Conclusion:
The Tribunal allowed the appeal filed by the assessee, holding that the reopening of the assessment was unjustified and that the addition of Rs. 6,12,367/- as bogus LTCG was not supported by concrete evidence. The Tribunal emphasized the need for proper enquiry and corroboration of information by the AO before making such additions.