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2018 (12) TMI 199 - AT - Income TaxUnexplained cash credit u/s 68 - Bogus LTCG - addition made towards unexplained expenditure on commission - Held that - Both the lower authorities have adopted identical line of reasoning in treating the sale consideration received on transfer of shares in KAFL to be bogus thereby treating the LTCG on sale of such shares as unexplained cash credit u/s 68 - DR drew our attention to a voluminous exercise undertaken by the AO involving a long drawn process of stock market prices rigging in collusion with the various entry operators. DR drew our attention to the assessment order indicating the assessee to have allegedly invested the money in M/s KAFL not having any sound financial position or business activity so as to justify the LTCG in issue. The cases of Sumati Dayal vs. CIT 1995 (3) TMI 3 - SUPREME COURT ) and CIT vs. Durga Prasad More 1971 (8) TMI 17 - SUPREME COURT were quoted in support to plead that both the lower authorities have made it clear in their respective order(s) about the assessee having acted in collusion with various entry operators for the purpose of bogus LTCG in issue. There is no dispute that assessee having derived the LTCG on transfer of shares held in M/s Kailash Auto Finance Ltd. We find that the revenue did not indicate any specific evidence against the assessee in above terms qua the LTCG derived from transfer of share in M/s Kailash Auto Finance Ltd. We therefore adopt the above extracted reasoning mutatis mutandis to delete the impugned bogus LTCG addition of ₹ 37,03,514/-. Consequently the addition made towards unexplained expenditure on account of commission of ₹ 11,250/- also stands automatically deleted. - Decided in favour of assessee.
Issues Involved:
1. Whether the Commissioner of Income Tax (Appeals) was justified in confirming the addition made towards unexplained cash credit under Section 68 of the Income Tax Act by treating the Long Term Capital Gain (LTCG) derived from the sale of shares as bogus. 2. Whether the Commissioner of Income Tax (Appeals) was justified in confirming the addition made towards unexplained expenditure on commission since the sale consideration was treated as bogus. Detailed Analysis: 1. Addition Towards Unexplained Cash Credit Under Section 68: The primary issue was whether the LTCG of ?37,03,514/- derived from the sale of shares of Kailash Auto Finance Ltd (KAFL) was genuine or bogus. The assessee had purchased 100,000 shares of KAFL for ?1,00,000/- and sold them for ?38,03,514/-, claiming the resultant LTCG as exempt under Section 10(38) of the Income Tax Act. The Assessing Officer (AO) treated the sale consideration as bogus, alleging that the share prices were artificially rigged and manipulated. The AO argued that the company did not have the financial standing to justify such a high market price and suggested that the assessee was involved in a scheme to convert illegal money into legal money through bogus LTCG. This view was upheld by the Commissioner of Income Tax (Appeals). However, the Tribunal found that there was no direct evidence against the assessee to support the AO's allegations. The Tribunal referred to several precedents, including the cases of Sumati Dayal vs. CIT and CIT vs. Durga Prasad More, which emphasize that suspicion alone cannot replace concrete evidence. The Tribunal noted that the assessee had provided all necessary documentation, such as purchase bills, contract notes, demat statements, and bank statements, to substantiate the transactions. The Tribunal also considered similar cases where the courts had ruled in favor of the assessee, stating that general observations about market manipulation could not override specific evidence provided by the assessee. The Tribunal concluded that the AO had failed to provide specific evidence linking the assessee to any fraudulent activities or artificial price rigging. 2. Addition Towards Unexplained Expenditure on Commission: The interconnected issue was the addition of ?11,250/- towards unexplained expenditure on commission, based on the AO's finding that the sale consideration was bogus. Since the Tribunal found no concrete evidence to support the AO's claim of bogus LTCG, the addition towards commission was also deemed unsustainable. The Tribunal emphasized that the burden of proof lies with the revenue to establish that the transactions were not genuine. In this case, the revenue failed to provide any direct evidence against the assessee. The Tribunal reiterated that suspicion and conjecture could not replace hard evidence. Conclusion: The Tribunal allowed the appeal of the assessee, deleting both the addition of ?37,03,514/- towards unexplained cash credit under Section 68 and the addition of ?11,250/- towards unexplained expenditure on commission. The judgment underscored the importance of concrete evidence over mere suspicion in tax assessments. The Tribunal's decision was consistent with several precedents that favored the assessee in similar circumstances.
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