2018 (6) TMI 1384 - AT - Income Tax

Denial of exemption claimed u/s.10(38) - claim denied disbelieving the claim of Long Term Capital Gains - claim was disbelieved on the statement given by a share broker Shri Ashok Kumar Kayan who stated that he was providing accommodation entry in the form of bogus Long Term Capital Gains in connivance with entry operators and promoters of penny stock scripts - Held that - Directions given required the assessee to prove the transactions of the Long Term Capital Gains by providing all evidence required by the AO and the Revenue has been directed to give the statement of Shri Ashok Kumar Kayan to the assessee for rebuttal - Appeal of the assessee is allowed for statistical purposes.

Summary

Issues:
Denial of exemption claimed under section 10(38) of the Income Tax Act based on a statement from a stock broker without providing an opportunity for cross-examination.

Detailed Analysis:
The appellant challenged the denial of exemption under section 10(38) of the Income Tax Act based on a statement from stock broker Shri Ashok Kumar Kayan, which was not provided to the assessee for cross-examination. The appellant argued that the lower authorities disbelieved the sale of shares as penny stocks and round tripping, leading to the generation of bogus Capital Gains claimed as exempt. Reference was made to a similar case involving the same broker, where the Tribunal remitted the issue back to the Assessing Officer for providing a copy of the statement to the assessee.

The Departmental Representative cited another case where a similar issue was remitted back to the Assessing Officer with specific directions. After hearing both sides, the Tribunal noted that the denial of exemption was based on the statement of Shri Ashok Kumar Kayan, who admitted to providing accommodation entries for bogus Long Term Capital Gains. The Tribunal highlighted the importance of providing the statement to the assessee for cross-examination and the need for a reconsideration by the Assessing Officer.

In a separate case involving the same broker, the Tribunal emphasized the insufficiency of mere suspicion for assessments and the necessity of factual support. Various questions were raised regarding the purchase of shares, mode of payment, possession, demat process, share transactions, and company details. The Tribunal concluded that the facts were inadequate for adjudication, requiring the issues to be restored to the Assessing Officer for reevaluation after granting the assessee an opportunity to substantiate the case.

Both cases were remitted back to the Assessing Officer with directions for the assessee to provide necessary evidence for the Long Term Capital Gains transactions and for the Revenue to furnish the statement of Shri Ashok Kumar Kayan for rebuttal. The Tribunal allowed the appeal of the assessee for statistical purposes, emphasizing the importance of due process and substantiating claims in accordance with the law.

The judgment was pronounced in an open court in Chennai on June 25, 2018.