2019 (1) TMI 939 - AT - Income Tax

Bogus LTCG - addition u/s 68 - accommodation entry receipt - cross-examination to the assessee of brokers relying on whom addition is being made - Held that - A.O. relied upon certain statements of the share brokers recorded by Investigation Wing, Kolkata to prove that they have provided accommodation entries for long term capital gains. The assessee in her statement requested that assessee may be allowed for cross-examinations of these statements. However, no cross-examination have been allowed to the assessee to cross-examine any of such share brokers. Therefore, such statements could not be admissible in evidence against the assessee. As pointed-out from the assessment order that A.O. recorded balance-sheet and P & L A/c of M/s. Jackson Investment Ltd., and their figures of income and net worth for several years to show that the said Company was declaring the profit as well as having net worth. Considering the above discussion, the decisions relied upon by the Ld. D.R. would not support the case of the Revenue. The issue is, therefore, covered by the Order of Shri Amar Nath Goenka, New Delhi & Others vs. The ACIT, Circle-20(1), New Delhi (2018 (12) TMI 754 - ITAT DELHI). - Decided in favour of assessee

Issues Involved:
1. Addition under Section 68 of the Income Tax Act on account of sale proceeds of shares.
2. Addition under Section 69C of the Income Tax Act on account of commission for obtaining Long Term Capital Gains (LTCG) accommodation entry.
3. Admissibility of statements from share brokers without cross-examination.
4. Genuineness of the share transactions and the applicability of Section 10(38) of the Income Tax Act for exemption.

Issue-wise Detailed Analysis:

1. Addition under Section 68 of the Income Tax Act on account of sale proceeds of shares:
The primary issue was whether the sale proceeds of shares received by the assessees should be treated as unexplained cash credits under Section 68. The Assessing Officer (A.O.) argued that the substantial increase in the share price of M/s. Jackson Investment Limited and other companies was abnormal and suggested that the transactions were not genuine. The A.O. cited investigations and statements from brokers indicating that the transactions were accommodation entries. However, the assessees provided documentary evidence such as bank statements, Demat accounts, and share certificates to prove the genuineness of the transactions. The tribunal noted that the A.O. did not bring any adverse material against the assessees and had not doubted the purchase of shares in earlier years. It was held that the transactions were genuine, and the addition under Section 68 was deleted.

2. Addition under Section 69C of the Income Tax Act on account of commission for obtaining LTCG accommodation entry:
The A.O. made additional charges under Section 69C, claiming that the assessees incurred unexplained expenditure for obtaining LTCG accommodation entries. The tribunal found that the A.O. did not provide sufficient evidence to substantiate these claims. The assessees had requested cross-examination of the brokers whose statements were used against them, but this was not allowed. Consequently, the tribunal ruled that the statements could not be admitted as evidence, and the additions under Section 69C were also deleted.

3. Admissibility of statements from share brokers without cross-examination:
The assessees argued that the statements from brokers, which suggested the transactions were accommodation entries, were not admissible as evidence since they were not allowed to cross-examine these brokers. The tribunal agreed, citing the principle that evidence not subjected to cross-examination cannot be used against the assessees. This was supported by the decision in the case of Andaman Timber Industries vs. Commissioner of Central Excise, Kolkata-II, and other relevant case laws.

4. Genuineness of the share transactions and the applicability of Section 10(38) of the Income Tax Act for exemption:
The tribunal examined whether the transactions were genuine and if the assessees were entitled to claim exemption under Section 10(38) for LTCG. The assessees provided substantial documentary evidence to support their claims, including proof of purchase and sale through recognized stock exchanges and payment of Securities Transaction Tax (STT). The tribunal found that the transactions were genuine and satisfied the conditions of Section 10(38). It was noted that similar cases had been decided in favor of taxpayers by various benches of the ITAT and High Courts, including the Delhi High Court in the case of Pr. CIT vs. Jatin Investment Pvt. Ltd.

Conclusion:
The tribunal concluded that the additions made by the A.O. under Sections 68 and 69C were unjustified. The documentary evidence provided by the assessees was sufficient to prove the genuineness of the transactions, and the statements from brokers could not be used against them without cross-examination. All appeals by the assessees were allowed, and the additions were deleted.

← Previous Next →