2017 (4) TMI 964 - AT - Income Tax

Claim of long term capital gain from sale of shares and treating the same as income from other sources - Held that - It is not in dispute that these shares were finally dematerialized and shown in the demat account of the assessee however, the actual date of dematerialization entry in the demat account is not proved by the assessee. The request for dematerialization dated 08.12.2005 itself is not a conclusive proof of converting the shares into the demat account and further the details filed by the assessee regarding the demat account also do not reflect the entry of shares in the demat account. Only the sale transaction as on 27.02.2007 has been reflected in the demat account. Therefore the transaction of sale is no doubt proved by the assessee. But, the date of purchase is still not clear. Thus the only question which remains to be ascertained is the date of dematerialization of these shares and therefore the market price of the shares on the date of dematerialization would be considered as purchase consideration of the shares and consequently the sale on 27.02.2007 may result short term capital gain or long term capital gain as case may be depending upon the date of dematerialization of the shares. Further the quantum of capital gain is also depending on the purchase price which is the prevailing price on the date of dematerialization. Accordingly, this issue of computation of capital gain whether it is short term or long term as well as the purchase price on the date of dematerialization is remanded to the record of the AO for proper verification. The AO is specifically directed to find out the actual date of dematerialization of shares and the prevailing market price of the shares on the date of dematerialization to be considered as purchase consideration and then compute the capital gain. Since the facts are identical in all the cases therefore the issue in all three cases is set aside to the record of the AO. - Appeals of the assessee allowed for statistical purposes.

Summary

Issues Involved:
- Validity of reopening assessment under section 148 of the IT Act
- Treatment of sale consideration received on sale of shares as 'Income from Other Sources'
- Claim of long term capital gain from sale of shares and its exemption under section 10(38) of the IT Act
- Denial of liability to pay interest

Validity of Reopening Assessment:
The three appeals by individual assesses challenged the orders of CIT(A) for the assessment year 2007-08. The appeals were clubbed together due to common issues. The first ground raised was the error in passing the order by the Assessing Officer and confirming by CIT(A), leading to a request for quashing the orders. The second ground regarding the validity of reopening assessment was not pressed by the assessee during the hearing and was dismissed. This issue was resolved based on the non-pursuance by the assessee.

Treatment of Sale Consideration on Shares:
The core issue revolved around the treatment of sale consideration received on shares as 'Income from Other Sources.' The AO treated the sum as income from other sources, alleging fraudulent transactions and accommodation entries. The assessee claimed the sale of shares through a demat account, earning Long Term Capital Gain exempt under section 10(38) of the IT Act. The Tribunal examined the evidence presented by the assessee, including contract notes, demat account details, and compliance with STT provisions. The Tribunal found discrepancies in the purchase details but acknowledged the dematerialization of shares. It remanded the issue to verify the actual date of dematerialization for accurate computation of capital gain, directing the AO to determine the purchase price based on the market value at dematerialization. The Tribunal allowed the appeals for statistical purposes, setting aside the issue to the AO for further verification.

Claim of Long Term Capital Gain and Exemption:
The assessee contended that the sale of shares was genuine, conducted through banking channels, and eligible for Long Term Capital Gain exemption under section 10(38) of the IT Act. The assessee provided evidence of purchase, dematerialization, and sale of shares, challenging the allegations of fraudulent transactions. The Tribunal acknowledged the dematerialization but sought clarification on the purchase date for accurate capital gain computation. It emphasized the importance of verifying the dematerialization date and market price for determining the purchase consideration and capital gain classification. The issue was remanded to the AO for further investigation, considering identical facts in all three cases.

Denial of Liability to Pay Interest:
The assessee denied the liability to pay interest, claiming erroneous levy. However, the judgment did not provide detailed analysis or resolution regarding this specific issue.

In conclusion, the ITAT Bangalore addressed the appeals concerning the validity of reopening assessment, treatment of sale consideration on shares, and the claim of Long Term Capital Gain exemption. The Tribunal focused on verifying the dematerialization date and purchase price for accurate capital gain computation, remanding the issue to the AO for further investigation. The judgment allowed the appeals for statistical purposes, emphasizing the need for proper verification in similar cases.