2018 (9) TMI 1683 - AT - Income Tax

Addition u/s 68 - long term capital gain on account of sale of shares was denied on the basis of Investigation Wing - addition towards consideration received for sale of shares as unaccounted income - application of rules of Suspicious Transaction - Held that - As decided in the case of Prakash Chand Bhutoria 2018 (7) TMI 46 - ITAT KOLKATA there cannot be any doubt about the transaction as has been observed by the Assessing Officer. The transactions were as per norms under controlled by the Securities Transaction Tax, brokerage service tax and cess, which were already paid. They were complied with. All the transactions were through bank. There is no iota of evidence over the above transactions as it were through d-mat format. See CIT, Kolkata-III vs. Smt. Shreyashi Ganguli reported in 2012 (9) TMI 1113 - CALCUTTA HIGH COURT - Decided against revenue.

Issues Involved:
1. Validity of notice under section 143(2) based on CASS.
2. Violation of principles of natural justice.
3. Validity of show cause notice and adherence to CBDT guidelines.
4. Burden of proof regarding the genuineness of transactions.
5. Applicability of section 68 to the sale of shares.
6. Evidence of cash induction by the assessee.
7. Basis of findings on suspicion and human probabilities.
8. Opportunity for cross-examination of witnesses.
9. Applicability of section 68 to share transactions.
10. Consistency with other similar cases where relief was granted.
11. Applicability of section 115BBE.
12. Additional grounds for appeal.

Detailed Analysis:

1. Validity of notice under section 143(2) based on CASS:
The assessee argued that the notice under section 143(2) was not in accordance with jurisdictional conditions. However, this issue was not elaborated upon in the judgment.

2. Violation of principles of natural justice:
The assessee contended that the addition was made based on vague show cause notices and without confronting back material. The Tribunal found that the assessee was not effectively provided with an opportunity to cross-examine the persons whose statements were used against them, which violated principles of natural justice.

3. Validity of show cause notice and adherence to CBDT guidelines:
The assessee argued that the show cause notice was vague and did not adhere to mandatory CBDT guidelines. The Tribunal noted that the show cause notice and the statements referred to therein did not provide concrete evidence against the assessee.

4. Burden of proof regarding the genuineness of transactions:
The Tribunal held that the burden to prove that the transaction was bogus remained un-discharged by the revenue. The assessee provided sufficient documentary evidence to support the genuineness of the transactions, which the Assessing Officer failed to counter with specific evidence.

5. Applicability of section 68 to the sale of shares:
The Tribunal observed that section 68, which deals with unexplained credits, was not applicable to the facts of the present case. The transactions were through recognized stock exchanges, and payments were received through banking channels after paying STT and brokerage.

6. Evidence of cash induction by the assessee:
The Tribunal found no evidence on record to suggest that the assessee's own money had come back to them. The revenue's case was based on presumptions and surmises without concrete evidence.

7. Basis of findings on suspicion and human probabilities:
The Tribunal emphasized that suspicion, however strong, cannot take the place of evidence. The Assessing Officer's conclusions were based on presumptions and general statements without specific evidence against the assessee.

8. Opportunity for cross-examination of witnesses:
The Tribunal noted that the assessee's request for cross-examination was not effectively provided. The Assessing Officer's direction to the assessee to go to Kolkata for cross-examination was not considered a reasonable opportunity.

9. Applicability of section 68 to share transactions:
The Tribunal reiterated that section 68 was not applicable to the sale of shares, especially when the transactions were through recognized stock exchanges and supported by documentary evidence.

10. Consistency with other similar cases where relief was granted:
The Tribunal referred to several decisions where similar additions were deleted under identical circumstances. The Tribunal followed the precedent set by the Hon'ble Punjab & Haryana High Court and other Tribunal decisions, which supported the assessee's case.

11. Applicability of section 115BBE:
The Tribunal did not find it necessary to address this issue in detail as the primary addition under section 68 was deleted.

12. Additional grounds for appeal:
The Tribunal allowed the appeals based on the primary grounds discussed and did not find it necessary to address additional grounds separately.

Conclusion:
The Tribunal set aside the order of the CIT(A) and directed the Assessing Officer to delete the addition made under section 68 of the I.T. Act. The Tribunal's decision was based on the lack of specific evidence against the assessee, violation of principles of natural justice, and consistency with other similar cases. The appeals filed by the respective assessees were allowed.

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