2018 (5) TMI 580 - AT - Income Tax

Genuineness of transactions for sale and purchase of shares on which exemption u/s. 54F claimed - Held that - It is evident from the records that the assessee has failed to furnish any documentary evidence in support of sale and purchase of shares of FTE. The assessee has merely given the name of broker M/s. Vijay Bhagwandas & Co. in support his contentions. During the course of inquiry by Assessing Officer from aforesaid broker it transpired that none of the bills as mentioned by the assessee for purchase and sale of shares of FTE were issued by the broker in favour of the assessee. The assessee has miserably failed to substantiate genuineness of transactions for sale and purchase of shares on which exemption u/s. 54F of the Act has been claimed. The assessee has also failed to justify phenomenal increase in the value of share from ₹ 1.16 per share to ₹ 70.18 per share within a short span of one year. Addition on account of alleged commission paid to broker - Held that - Since, the assessee has failed to substantiate the transaction of sale and purchase of shares, there is no question of payment of commission and hence, the said claim of assessee has been rightly rejected by authorities below. Levy of penalty u/s. 271(1)(c) - non specification of charge - Held that - The charge for levy of penalty u/s. 271(1)(c) has to be specifically conveyed to the assessee at the time of recording satisfaction, otherwise, the principles of natural justice are offended. The assessee should know the charge which he has to meet while defending levy of penalty. Thus, in view of the defect in recording satisfaction for levy of penalty, the impugned order is set aside and penalty in both the assessment years 2005-06 and 2006-07 is deleted.

Summary

Issues Involved:
1. Addition of sales proceeds of shares as unexplained cash credit under Section 68 of the Income Tax Act.
2. Disallowance of commission paid for accommodation entries.
3. Levy of interest under Sections 234B and 234C of the Income Tax Act.
4. Levy of penalty under Section 271(1)(c) of the Income Tax Act.

Issue-Wise Detailed Analysis:

1. Addition of Sales Proceeds of Shares as Unexplained Cash Credit (Section 68):
The assessee disclosed Long Term Capital Gain on the sale of shares and claimed exemption under Section 54F, offering the balance at a lower tax rate under Section 112. The Assessing Officer (AO) observed that the shares were purchased at a nominal price and sold at a significantly higher price, indicating a dubious transaction. The AO rejected the assessee's claim of exemption under Section 54F and added the sales proceeds as undisclosed income, citing the lack of substantial evidence for the transactions. The Commissioner of Income Tax (Appeals) upheld this addition, and the Tribunal dismissed the assessee's appeal, agreeing with the lower authorities' findings.

2. Disallowance of Commission Paid for Accommodation Entries:
The AO disallowed the commission claimed by the assessee for the transfer of shares, as the transactions were deemed dubious. The Commissioner of Income Tax (Appeals) confirmed this disallowance. The Tribunal dismissed the assessee's appeal on this ground, stating that since the transaction of sale and purchase of shares was not substantiated, the claim for commission payment was rightly rejected.

3. Levy of Interest under Sections 234B and 234C:
The assessee challenged the levy of interest under Sections 234B and 234C. The Tribunal held that the charging of interest under these sections is consequential and mandatory, thus dismissing the appeal on this ground as devoid of merit.

4. Levy of Penalty under Section 271(1)(c):
The AO initiated penalty proceedings under Section 271(1)(c) for concealment of income and furnishing inaccurate particulars. However, the Tribunal noted that the AO did not specify the exact charge for the penalty, leading to ambiguity. The Tribunal cited the Karnataka High Court's decision in Commissioner of Income Tax Vs. Manjunatha Cotton and Ginning Factory, which emphasized the need for clarity in the charge for penalty. Due to the defect in recording satisfaction for the penalty, the Tribunal set aside the impugned order and deleted the penalty for both assessment years.

Conclusion:
The appeals for the assessment years 2005-06 and 2006-07 regarding the addition of sales proceeds as unexplained cash credit and disallowance of commission were dismissed. However, the appeals concerning the levy of penalty under Section 271(1)(c) were allowed, and the penalties were deleted due to procedural defects in recording the satisfaction for the penalty.