2019 (1) TMI 698 - AT - Income Tax

Assessment u/s 153A - addition u/s 68 bogus LTCG and alleged unaccounted commission expenses - addition based on the statement of Shri R.K. Kedia (alleged entry provider), Manish Arora (employee of Sri R.K. Kedia), alleged exit operators, directors of penny stock companies etc. recorded by various officers of the Department - Held that - AO was having reasonable evidences but has unnecessarily took the burden on him of proving that long term capital gain earned by the assessee is bogus instead of first asking assessee to prove that the above income is exempt u/s. 10(38) of the Act. After granting full opportunity to the assessee to adduce as many evidence as assessee could have produce and then should have carried out vast powers bestowed upon him under the Income Tax Act, 1961 of examining the details furnished by the assessee. AO could have also asked the assessee to produce all the persons whose statement AO was relying upon. AO has unnecessarily taken the onus of proving long-term capital gain as bogus instead of first asking assessee to prove that the long-term capital gain is genuine. AO should have first put the burden to put prima facie case in respect of cash credit on assessee as to how it was introduced in the books of the assessee. However, from the first paragraph of the assessment order itself the AO alleged that assessee has entered into a scam and they by walked into the trap of section 110 of the evidence act on him to prove that the long-term capital gain earned by the assessee is bogus. AO after that could not substantiate his allegations by granting cross-examination to the assessee of various persons. It is fatal to the case, as the assessment strategy adopted by the AO could not prove his allegation. Therefore, in view of overwhelming decisions of the various high courts and coordinate benches produced before us and which came to our knowledge. Even on the merit, we hold that the long-term capital gain earned by the assessee cannot be charged to tax under section 68 of the act. Therefore, we reverse the finding of the lower authorities and direct the AO to grant the benefit of section 10 (38) of the act on the long-term capital gain earned by the assessee on sale of shares. Accordingly as a natural corollary, we also delete the addition of 6 % unaccounted commission expenditure also. Accordingly, ground of the assessee are allowed.

Issues Involved:

1. Cross-examination of third parties.
2. Use of third-party documents and statements.
3. Reliance on SEBI interim orders.
4. Cash trails from bank accounts.
5. Impact of other beneficiaries' disclosures.
6. Application of preponderance of probabilities.

Detailed Analysis:

1. Cross-examination of third parties:

The assessee contested that the statements of third parties such as R.K. Kedia and Manish Arora, which were used against them, were not subject to cross-examination. The tribunal noted that the opportunity for cross-examination is a fundamental principle of natural justice. The tribunal cited the Supreme Court's decision in Andaman Timber Industries, which emphasized that not allowing cross-examination makes the order nullity. The tribunal concluded that the failure to provide cross-examination was a serious flaw, making the assessment invalid.

2. Use of third-party documents and statements:

The tribunal held that documents and statements seized from third parties could not be used against the assessee without corroborative evidence. The tribunal referred to the Supreme Court's decision in V.C. Shukla, which stated that entries in third-party documents could not be used against the assessee without independent evidence. The tribunal also noted that the presumption under sections 132(4A) and 292C applies only to the person from whose possession the documents are seized.

3. Reliance on SEBI interim orders:

The tribunal observed that the SEBI's interim orders, which were initially used against the assessee, were subsequently revoked after detailed investigations. The final orders from SEBI gave a clean chit to the assessee, indicating that they were not involved in any price manipulation. The tribunal concluded that reliance on the interim orders was misplaced, and the final orders should be considered.

4. Cash trails from bank accounts:

The tribunal noted that the AO's reliance on cash trails from the bank accounts of the purchaser companies was not substantiated with concrete evidence linking the cash deposits to the assessee. The tribunal emphasized that the transactions were conducted through the stock exchange, where the identities of the buyers and sellers are not known. The tribunal found that the AO's allegations remained unproved and were merely speculative.

5. Impact of other beneficiaries' disclosures:

The tribunal held that disclosures made by other beneficiaries regarding bogus long-term capital gains did not impact the assessee's case. The tribunal emphasized that each case must be considered on its own merits, and the assessee cannot be held responsible for the actions of others. The tribunal found no evidence linking the assessee to any fraudulent activities.

6. Application of preponderance of probabilities:

The tribunal rejected the AO's reliance on the preponderance of probabilities to make the addition. The tribunal noted that the assessee had provided all necessary documentary evidence to support the genuineness of the transactions. The tribunal emphasized that the theory of preponderance of probabilities could not override direct and factual evidence. The tribunal concluded that the AO's approach was based on conjectures and surmises, and the addition could not be sustained.

Conclusion:

The tribunal allowed the appeals, holding that the additions made by the AO under section 68 on account of alleged bogus long-term capital gains and unaccounted commission expenses were not justified. The tribunal directed the AO to grant the benefit of section 10(38) for the long-term capital gains earned by the assessee.

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