2018 (10) TMI 1431 - AT - Income Tax

Addition made u/s 68 in respect of LTCG on sale of shares of KAFL - claimed as exempted income u/s 10(38) - whether the LTCG on sale of shares of KAFL earned through sale in recognized stock exchange and subjected to payment of STT through a registered share broker, could be treated as genuine or not? - Held that - As find that SEBI vide its order dated 21.9.2017 had revoked the restraint order banning 244 entities and persons from trading and dealing in securities by giving a categorical finding that they had no role in the manipulation of the scrip of Kailash Auto Finance Ltd. We find that the AO had grossly relied on the interim order passed by SEBI on 29.3.2016 to address the issue before us. In the said interim order of SEBI, restraint orders were issued. Now in the final order dated 21.9.2017, such restraint orders and other bans had been revoked by SEBI itself. Hence the primary reliance placed on a document by the ld AO while framing the assessment goes against the revenue now. We direct the ld AO to delete the addition made u/s 68 of the Act in respect of LTCG on sale of shares of KAFL. Accordingly, the grounds raised by the assessee are allowed.

Issues Involved:
1. Whether the addition towards long-term capital gains (LTCG) on the sale of shares was justified.
2. Whether the transactions related to LTCG were genuine or bogus.
3. Whether the provisions of Section 68 of the Income Tax Act were applicable.
4. The relevance and impact of SEBI's orders on the case.

Issue-wise Detailed Analysis:

1. Addition Towards Long-Term Capital Gains (LTCG):
The primary issue was whether the addition made towards LTCG on the sale of shares was justified. The assessee, a non-resident Indian, declared LTCG of ?74,86,600 from the sale of shares of Kailash Auto Finance Ltd. (KAFL), which were claimed as exempt under Section 10(38) of the Income Tax Act. The Assessing Officer (AO) treated these gains as bogus, alleging that the share prices were artificially rigged and added the amount as unexplained cash credit under Section 68 of the Act. This action was upheld by the Commissioner of Income Tax (Appeals) [CIT(A)].

2. Genuineness of the Transactions:
The assessee provided primary documents evidencing the purchase and sale of shares, including contract notes, bank statements, and demat statements. The AO's argument was based on an ex-parte order by SEBI, which restrained KAFL from dealing in securities due to alleged price rigging. However, the Tribunal found that the assessee had purchased shares through legitimate means and sold them in the open market at prevailing prices. The Tribunal noted that the AO did not provide concrete evidence to prove that the transactions were manipulated or that the assessee was involved in price rigging.

3. Application of Section 68:
The AO invoked Section 68, treating the LTCG as unexplained cash credit. The Tribunal found that the assessee had provided all necessary documents to substantiate the transactions, including payment through account payee cheques and demat account statements. The Tribunal emphasized that the AO's conclusions were based on presumptions rather than concrete evidence. The Tribunal referred to several judicial precedents, including the decision of the Hon'ble Bombay High Court in the case of CIT vs Mukesh R Marolia, which held that transactions supported by proper documentation could not be dismissed as bogus.

4. Relevance and Impact of SEBI's Orders:
The AO relied heavily on SEBI's interim order dated 29.3.2016, which restrained KAFL from dealing in securities. However, the Tribunal noted that SEBI's final order dated 21.9.2017 revoked the restraint orders against 244 entities, including the assessee, indicating that they had no role in the manipulation of KAFL shares. This revocation undermined the AO's reliance on the interim order. The Tribunal further noted that the assessee and the broker were not named in any of the SEBI orders or investigation reports as beneficiaries of the alleged price rigging.

Conclusion:
The Tribunal concluded that the AO's addition towards LTCG was not justified as it was based on presumptions and lacked concrete evidence. The Tribunal directed the AO to delete the addition made under Section 68 of the Act, thereby allowing the appeal in favor of the assessee. The Tribunal emphasized the importance of relying on documented evidence and judicial precedents rather than mere suspicion and presumptions. The final SEBI order revoking the restraint further supported the assessee's case, leading to the conclusion that the transactions were genuine.

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