2018 (10) TMI 53 - AT - Income Tax

Addition u/s 68 - bogus long term capital gain addition - assessee has derived his long term capital gain under issue from a dubious route of rigging in value of his shares in the two scrips - Held that - My attention is invited time and again to the fact that DIT(Investigation) has found some entry operators spread throughout the country to be indulged in such kind of business by rigging scrips prices. Find no merit in all these contentions raised at the Revenue s behest. The fact remains that there is not even a single evidence or material against the assessee apart from mere assumptions and presumptions hereinabove. As decided in Navneet Agarwal vs ITO 2018 (8) TMI 509 - ITAT KOLKATA held that we are bound to consider and rely on the evidence produced by the assessee in support of its claim and base our decision on such evidence and not on suspicion or preponderance of probabilities. No material was brought on record by the AO to controvert the evidence furnished by the assessee. Under these circumstances, we accept the evidence filed by the assessee and allow the claim that the income in question is a bonafide Long Term Capital Gain arising from the sale of shares and hence exempt from income tax. - Decided in favour of assessee.

Issues Involved:

1. Legitimacy of Long Term Capital Gains (LTCG) claimed under Section 10(38) of the Income Tax Act, 1961.
2. Treatment of LTCG as bogus and addition under Section 68 as unexplained cash credits.
3. Examination of the evidence and documentation provided by the assessees.
4. Application of the principles of natural justice, including the right to cross-examination.
5. Reliance on investigation reports and general modus operandi.
6. Judicial precedents and their applicability to the case.

Detailed Analysis:

1. Legitimacy of Long Term Capital Gains (LTCG) Claimed under Section 10(38):

The primary issue in these appeals was whether the LTCG claimed by the assessees under Section 10(38) of the Income Tax Act, 1961, was genuine. The assessees claimed LTCG from the sale of shares, which were allegedly purchased through off-market transactions and later sold at significantly higher prices. The Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] treated these gains as bogus, citing abnormal profits and price rigging as the basis for their conclusions.

2. Treatment of LTCG as Bogus and Addition under Section 68:

The AO added the LTCG amounts as unexplained cash credits under Section 68, alleging that the transactions were pre-arranged and involved price rigging. The AO referred to the investigation report from the Directorate of Income Tax (DIT), which suggested that the assessees were involved in a scheme with entry operators to generate bogus LTCG. The CIT(A) upheld the AO's decision, emphasizing the lack of business activity and the artificial rise in share prices.

3. Examination of the Evidence and Documentation Provided by the Assessees:

The assessees provided various documents to support their claims, including share purchase applications, allotment letters, share certificates, bank statements, demat statements, contract notes, and broker confirmations. The CIT(A) dismissed these documents as mere paperwork, arguing that they were part of a pre-planned scheme to generate bogus LTCG. The CIT(A) relied on judicial precedents to support the view that the burden of proof was on the assessees to establish the genuineness of the transactions.

4. Application of the Principles of Natural Justice, Including the Right to Cross-Examination:

The judgment highlighted the importance of the principles of natural justice, particularly the right to cross-examination. The assessees argued that the AO and CIT(A) relied on statements and evidence from third parties without providing an opportunity for cross-examination. The judgment referred to various judicial precedents, emphasizing that evidence collected from third parties cannot be used against an assessee unless they are given an opportunity to counter it.

5. Reliance on Investigation Reports and General Modus Operandi:

The AO and CIT(A) heavily relied on the investigation report from the DIT, which outlined a general modus operandi for generating bogus LTCG. However, the judgment noted that the specific involvement of the assessees in this scheme was not established. The judgment emphasized that each case must be assessed based on legal principles and concrete evidence, rather than general assumptions and suspicions.

6. Judicial Precedents and Their Applicability to the Case:

The judgment referred to several judicial precedents, including decisions from the Supreme Court and various High Courts, which underscored the need for concrete evidence to support allegations of bogus transactions. The judgment cited cases where courts had held that suspicion, however strong, cannot replace evidence. The judgment also referred to cases where courts had emphasized the importance of cross-examination and the need for the revenue to prove allegations with direct evidence.

Conclusion:

The judgment concluded that the AO and CIT(A) had failed to provide concrete evidence to support their allegations of bogus LTCG. The judgment emphasized that the evidence provided by the assessees, including share purchase applications, allotment letters, and bank statements, was not adequately countered by the revenue. The judgment also highlighted the importance of the principles of natural justice and the need for cross-examination. Consequently, the judgment allowed the appeals of the assessees, deleting the additions made under Section 68 and confirming the genuineness of the LTCG claimed under Section 10(38).

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