2018 (9) TMI 416 - AT - Income Tax

Addition of sale proceeds of the shares as undisclosed income of the assessee u/s 68 - rejecting the claim of the assessee exemption u/s 10(38) - undisclosed expenditure u/s 69C in respect of purported payments made to Share Brokers/Entry Operators - Held that - There is absolutely no adverse material to implicate the assessee to the entire gamut of unfounded/unwarranted allegations leveled by the AO against the assessee, which in our considered opinion has no legs to stand and therefore has to fall. DR could not controvert the facts which are supported with material evidences furnished by the assessee which are on record and could only rely on the orders of the AO/CIT(A). Allegations that the assessee/brokers got involved in price rigging/manipulation of shares must therefore consequently fail. Assessee had furnished all relevant evidence in the form of bills, contract notes, demat statement and bank account to prove the genuineness of the transactions relevant to the purchase and sale of shares resulting in long term capital gain. Neither these evidences were found by the AO nor by the ld. CIT(A) to be false or fictitious or bogus nor the AO had issued any notice to the brokers for confirmation - claim of the assessee that the transactions of the assessee were genuine and the authorities below was not justified in rejecting the claim of the assessee exempted u/s 10(38) of the Act on the basis of suspicion, surmises and conjectures. It is to be kept in mind that suspicion how so ever strong, cannot partake the character of legal evidence. - Decided in favour of assessee

Issues Involved:
1. Addition made under Section 68 of the Income Tax Act for Long Term Capital Gain (LTCG) claimed from the sale of shares.
2. Violation of principles of natural justice by not providing copies of materials and opportunity for cross-examination.
3. Justification of the addition based on suspicion, surmise, and generalized information.
4. Examination of the genuineness of the transactions based on provided documents.
5. Addition under Section 69C for undisclosed expenditure related to purported payments to share brokers/entry operators.

Issue-wise Detailed Analysis:

1. Addition under Section 68 of the Income Tax Act for LTCG:
The main grievance of the assessee was against the confirmation of the addition made by the Assessing Officer (AO) of ?11,49,425/- under Section 68 of the Act. The AO disbelieved the claim of LTCG from the sale of shares of M/s. Essar India Ltd., considering the transactions as sham and bogus. The AO relied on fundamental analysis, human conduct, and preponderance of probabilities, and added back the entire amount of sale proceeds as unexplained cash credit. The assessee contended that the transactions were genuine, supported by proper documentation, and carried out through recognized stock exchanges and banking channels.

2. Violation of Principles of Natural Justice:
The assessee argued that the AO violated the principles of natural justice by not providing copies of the materials and statements relied upon for making the addition and not giving an opportunity for cross-examination. The AO referred to statements of certain individuals and information from the Investigation Wing without disclosing these to the assessee. The Tribunal noted that the AO’s failure to provide these materials and the opportunity to cross-examine the individuals whose statements were used against the assessee rendered the assessment order invalid.

3. Justification of the Addition Based on Suspicion and Generalized Information:
The assessee contended that the AO made the additions based on suspicion, surmise, and generalized information received from the Investigation Wing, without any concrete evidence against the assessee. The Tribunal emphasized that suspicion, however strong, cannot replace legal evidence. The AO’s reliance on generalized modus operandi of bogus LTCG without specific evidence against the assessee was deemed insufficient to justify the addition.

4. Examination of the Genuineness of the Transactions:
The Tribunal examined the documents provided by the assessee, including contract notes, demat statements, bank statements, and other relevant evidence supporting the purchase and sale of shares. It was noted that the transactions were conducted through recognized stock brokers and stock exchanges, and payments were made through banking channels. The Tribunal found that the AO and CIT(A) failed to point out any defects in these documents and unjustifiably disbelieved the evidence provided by the assessee.

5. Addition under Section 69C for Undisclosed Expenditure:
The AO made an additional disallowance of ?43,934/- under Section 69C of the Act, representing 5% of the sale proceeds, as undisclosed expenditure purportedly paid to share brokers/entry operators. The Tribunal held that since the purchase and sale of shares were found to be genuine, no addition under Section 69C was warranted. Therefore, this addition was also ordered to be deleted.

Conclusion:
The Tribunal concluded that the AO and CIT(A) were not justified in making the addition of ?11,49,425/- under Section 68 and ?43,934/- under Section 69C. The Tribunal directed the AO to delete these additions, emphasizing the importance of adhering to principles of natural justice and relying on concrete evidence rather than suspicion and generalized information. The appeal of the assessee was allowed.

← Previous Next →