2019 (3) TMI 632 - AT - Income Tax

Bogus claim of long term capital gains - addition u/s 68 - non providing an opportunity to cross examine the witness - Held that - The transactions claimed by the assessee whether real or sham, requires a revisit by the ld. Assessing Officer. Similar directions as given in the cases of Vimalchand Gulabchand, Praveen Chand, Gatraj Jain & Sons (HUF) and Mahendra Kumar Bhandari (supra), read alongwith the directions given in the case of Heerachand Kanunga 2018 (4) TMI 701 - ITAT CHENNAI are given herealso. Useful reference may be made to the law laid down by Hon ble Apex Court in the case of CIT vs. Sunita Dhadda, 2018 (3) TMI 1610 - SUPREME COURT OF INDIA where the importance of providing an opportunity to cross examine the witness has been stressed. Their lordship held that this was an important constituent of natural justice. Only after all the steps required under law is complete, it can be ascertained whether claim of capital gains was bogus or not.- Appeal of the assessee is allowed for statistical purposes.

Summary

Issues:
Denial of exemption of long term capital gains under section 10(38) of the Income Tax Act, 1961 and treating the entire sale consideration as unexplained income.

Analysis:

Issue 1: Denial of exemption of long term capital gains under section 10(38) of the Income Tax Act, 1961

The appellant claimed exemption of long term capital gains arising from the sale of shares of a company under section 10(38) of the Act. The lower authorities disbelieved the sale, citing reports from the Directorate of Income Tax Investigation, labeling the company as a penny stock. The appellant argued that the purchase of shares was genuine, even though it was off-market, and the sale was made through a recognized stock exchange. The appellant contended that statements and reports used against them were not provided for examination. The Assessing Officer relied on an interim SEBI report, but the final report did not find any artificial transactions. The Tribunal referred to similar cases where directions were given for reconsideration, emphasizing adherence to natural justice principles.

Issue 2: Treatment of entire sale consideration as unexplained income

The Departmental Representative supported the lower authorities' decision, highlighting reasons to doubt the transactions. The Tribunal observed that the appellant acquired the shares off-market and referred to previous cases where similar claims were made. In the case of Heerachand Kanunga, the Tribunal emphasized the need for factual support rather than mere suspicion for assessments. The Tribunal stressed the importance of evidence regarding the purchase, possession, and sale of shares, questioning the transaction details and the duration of share holding. The Tribunal directed the Assessing Officer to re-examine the case, emphasizing the need for substantiating evidence and cross-examination of witnesses.

Conclusion:

The Tribunal allowed the appeal for statistical purposes, emphasizing the importance of providing opportunities for cross-examination and following natural justice principles. The case was remitted back to the Assessing Officer for a fresh consideration in accordance with the law, similar to previous directions in similar cases. The Tribunal highlighted the significance of factual evidence and proper examination in determining the legitimacy of capital gains claims, stressing the need for a thorough review of the transactions involved.

This detailed analysis of the judgment provides insights into the issues raised, arguments presented, and the Tribunal's decision, ensuring a comprehensive understanding of the legal aspects involved in the case.