2018 (10) TMI 428 - AT - Income Tax

Long Term Capital Gains on purchase and sale of the shares - AO added the entire sale proceeds of the shares as income and rejected the claim of exemption made u/s 10(38) - Held that - CIT(A) has in his order relied upon circumstantial evidence and human probabilities to uphold the findings of the AO. He also relied on the so called rules of suspicious transaction . No direct material was found to controvert the evidence filed by the assessee, in support of the genuineness of the transactions. In other words, the overwhelming evidence filed by the assessee remains unchallenged and uncontroverted. The entire conclusions drawn by the revenue authorities, are based on a common report of the Director of Investigation, Kolkata, which was general in nature and not specific to any assessee. The assessee was not confronted with any statement or material alleged to be the basis of the report of the Investigation Wing of the department and which were the basis on which conclusion were drawn against the assessee. Copy of the report was also not given. Under the circumstances, Tribunal has consistently held that decision in all such cases should be based on evidence and not on generalisation, human probabilities, suspicion, conjectures and surmises. - Decided in favour of assessee.

Issues:
1. Rejection of claim of Long Term Capital Gains on shares
2. Reliance on circumstantial evidence and human probabilities
3. Application of rules of suspicious transaction
4. Lack of specific material and confrontation with evidence
5. Adjudication based on evidence vs. generalization

Analysis:

Issue 1: Rejection of claim of Long Term Capital Gains on shares
The primary issue in this case was whether the Assessing Officer (AO) was justified in rejecting the claim of the assessee regarding Long Term Capital Gains on the purchase and sale of shares of M/s. Essar India Ltd. The AO concluded that the assessee's claim was bogus based on a general report and common modus operandi observed in similar cases, without specific evidence to refute the genuineness of the transactions. The entire sale proceeds were added as income, and the exemption under section 10(38) of the Income Tax Act, 1961 was denied.

Issue 2: Reliance on circumstantial evidence and human probabilities
The Learned Commissioner of Income Tax (Appeals) upheld the AO's decision based on circumstantial evidence, human probabilities, and the so-called "rules of suspicious transaction." Despite the absence of direct material contradicting the evidence provided by the assessee to support the authenticity of the transactions, the findings were upheld. The reliance on a general report by the Director of Investigation, Kolkata, without specific details or confrontation with the assessee, formed the basis of the decision.

Issue 3: Application of rules of suspicious transaction
The reliance on the "rules of suspicious transaction" by the appellate authority to support the addition of the entire sale proceeds as income raises concerns regarding the lack of specific evidence or material against the assessee. The decision based on general observations and common practices without individual assessment undermines the principle of substantiating claims with concrete evidence.

Issue 4: Lack of specific material and confrontation with evidence
The Tribunal highlighted the importance of decisions based on evidence rather than generalization, suspicion, or conjecture. The consistent deletion of such additions in similar cases by the Tribunal emphasized the necessity of specific material and confrontation with the assessee regarding any adverse reports or findings. Failure to provide the assessee with the opportunity to address specific allegations or review the report used as the basis for the decision weakens the validity of the conclusions drawn.

Issue 5: Adjudication based on evidence vs. generalization
The Tribunal, guided by established case law, emphasized the need for decisions to be evidence-based rather than relying on generalizations or human probabilities. The lack of specific material or direct challenge to the evidence presented by the assessee led to the deletion of the addition in question. The application of legal precedents and the absence of surviving adverse orders against the assessee supported the allowance of the appeal.

In conclusion, the judgment highlighted the importance of substantiating claims with concrete evidence, addressing specific allegations, and ensuring decisions are based on individual assessments rather than general observations. The reliance on circumstantial evidence and general reports without specific material against the assessee was deemed insufficient to justify the rejection of the claim of Long Term Capital Gains on shares.

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