2018 (7) TMI 821 - AT - Income Tax

Reopening of assessment - Benefit u/s. 10(38) denied - Held that - Assessee has furnished the information with reference to purchase of shares though in cash which was accepted by the AO in the re-opening proceedings in the AY. 2006-07 and evidence of subsequent sale during the year receipt of sale consideration through bank accounts and further there is no dispute with reference to the sale of shares through the stock exchange as confirmed by the NSDL (in the communication to the AO extracted above) we are of the opinion that Revenue has failed to establish that the transactions are bogus. Since assessee s claim for exemption in Long Term Capital Gain is supported by the documents including the transaction in DMAT account and sales through the stock exchange the claim u/s. 10(38) of the Act cannot be denied based on the assumptions and presumptions which are not supported by any evidence. In view of that the grounds raised by assessee on merits are allowed. AO is directed to treat the gains as such and allow the benefit u/s. 10(38). Since we have considered the issue on merits the contentions raised on reopening of assessment becomes academic. Moreover Ld.CIT(A) has considered this aspect elaborately and has held that there is same information. Since the assessment has not been done u/s. 143(3) earlier and only return has been accepted u/s. 143(1) in our view the AO has correctly initiated the reopening proceedings. The statement relied was u/s 131 so the question of initiation of proceedings u/s 153C also does not arise. To that extent the order of CIT(A) is confirmed. The contentions of assessee on reopening are not considered valid. However as Revenue failed to establish that the transactions undertaken by assessee are bogus on merits we agree with the contentions of assessee that the transactions are undertaken in the normal course and assessee is entitled for the deductions / exemptions so claimed. Appeal of assessee is partly allowed.

Summary

Issues Involved:
1. Reopening of assessment.
2. Reliance on the statement of Shri Mukesh Choksi.
3. Non-furnishing of statement/information/cross-examination.
4. Evidence of assessee in justifying the share transactions.
5. Exemption of Long Term Capital Gain under Section 10(38).

Detailed Analysis:

Reopening of Assessment:
The assessee contested that the reopening of assessment was bad in law. The Assessing Officer (AO) initiated reassessment proceedings under Section 147, based on information received from the Chief Commissioner of Income Tax (CCIT), Mumbai, indicating that the assessee was a beneficiary of fraudulent activities and accommodation entries provided by Shri Mukesh Choksi. The AO recorded a reason to believe that income chargeable to tax had escaped assessment. However, the assessee argued that the information used for reopening lacked a valid basis, and the AO did not provide the necessary documents to substantiate the reopening.

Reliance on the Statement of Shri Mukesh Choksi:
The AO relied on the statement of Shri Mukesh Choksi, who admitted to providing accommodation entries to various clients. The assessee argued that the reliance on this statement was bad in law, especially since the statement was not provided to the assessee, nor was cross-examination allowed. The tribunal noted that the statement was recorded under Section 131 after three years of the search operation, raising questions about its veracity.

Non-Furnishing of Statement/Information/Cross-Examination:
The AO neither furnished the statement of Shri Mukesh Choksi nor provided the information received from CCIT, Mumbai, to the assessee. The tribunal highlighted that the non-furnishing of these documents and the denial of cross-examination vitiated the proceedings. The tribunal emphasized that the assessee was not given a fair opportunity to contest the allegations.

Evidence of Assessee in Justifying the Share Transactions:
The assessee provided evidence of purchasing shares in the earlier year, holding them in a Demat account, and selling them through the stock exchange, with transactions recorded through banking channels. The tribunal noted that the AO did not accept these justifications and treated the transactions as bogus without allowing the cost of purchase. However, the tribunal found that the assessee had furnished all necessary documents, including purchase invoices, Demat account statements, and bank statements, which supported the genuineness of the transactions.

Exemption of Long Term Capital Gain under Section 10(38):
The assessee claimed exemption of Long Term Capital Gain under Section 10(38). The AO and the Commissioner of Income Tax (Appeals) [CIT(A)] rejected this claim, treating the income as 'income from other sources' instead. The tribunal, however, found that the assessee's claim was supported by documentary evidence, including Demat account transactions and sales through the stock exchange. The tribunal concluded that the Revenue failed to establish the transactions as bogus and directed the AO to treat the gains as Long Term Capital Gains, allowing the exemption under Section 10(38).

Conclusion:
The tribunal held that the reopening of assessment based on the statement of Shri Mukesh Choksi was not supported by sufficient evidence. The non-furnishing of necessary documents and denial of cross-examination violated the principles of natural justice. The tribunal accepted the assessee's evidence of genuine share transactions and directed the AO to allow the exemption of Long Term Capital Gain under Section 10(38). The appeal of the assessee was partly allowed, with the tribunal confirming the validity of the reopening proceedings but rejecting the Revenue's claim that the transactions were bogus.