2019 (3) TMI 647 - HC - Income Tax

Bogus long term capital gains - unexplained income under Section 68 - exemption under Section 10(38) denied - notice served upon the Assessee was returned unserved - HELD THAT - While it was for the Assessee to appear and adduce the relevant evidence for the genuineness of the transaction of sale of the shares, the Assessee was not vigilant and co-operative enough and did not produce the relevant evidence before the authorities below and did not even appear before the appellate authorities concerned to contradict the case against her, as set up by the Revenue during the course of assessment proceedings. This has resulted in the impugned findings of facts against the Assessee about the nature of the transactions of sale of shares of a shell company as sham and the same being taxed as undisclosed income under Section 68. Thus these findings of facts, cannot be said to be perverse in any manner and therefore we do not find any substantial question of law to be arising under Section 260-A - Decided against assessee.

Issues:
1. Assessment of long term capital gains as unexplained income under Section 68 of the Income Tax Act.
2. Claim of exemption under Section 10(38) of the Act.
3. Opportunity of cross-examination denied to the Assessee.
4. Lack of cooperation by the Assessee in assessment proceedings.
5. Non-appearance of the Assessee before the authorities.
6. Rejection of Miscellaneous Application by the Tribunal.

Issue 1: Assessment of Long Term Capital Gains as Unexplained Income under Section 68:
The High Court upheld the order of the Income Tax Appellate Tribunal, which dismissed the Assessee's appeal and confirmed the assessment of long term capital gains as unexplained income under Section 68 of the Income Tax Act. The Tribunal rejected the Assessee's claim of exemption under Section 10(38) of the Act based on the unreliable nature of the transaction involving the sale of shares, which were considered to be penny stocks associated with tax evasion. The authorities found that the company in question was a sham and shell company, leading to the conclusion that the income was liable to be taxed as undisclosed income.

Issue 2: Claim of Exemption under Section 10(38) of the Act:
The Assessee's claim of exemption under Section 10(38) of the Act was disbelieved by the authorities due to the questionable nature of the transaction involving the sale of shares in a company identified as a penny stock associated with tax evasion. The High Court concurred with the lower authorities' decision to tax the income as undisclosed under Section 68 of the Act, as the Assessee failed to provide sufficient evidence to support the genuineness of the transaction and the legitimacy of the claimed long term capital gains.

Issue 3: Opportunity of Cross-Examination Denied to the Assessee:
The Assessee contended that the opportunity for cross-examination of a key individual involved in the transaction was denied, which could have potentially provided clarity on the sale of shares and the payment of security tax. However, this request was rejected by the Assessing Authority, leading to a lack of crucial evidence in support of the Assessee's case.

Issue 4: Lack of Cooperation by the Assessee in Assessment Proceedings:
The High Court noted that the Assessee did not appear to cooperate effectively during the assessment proceedings, as evidenced by the non-appearance before the authorities and failure to provide substantial evidence to validate the claimed long term capital gains. The lack of cooperation and failure to produce relevant evidence worked against the Assessee's case, ultimately resulting in the unfavorable findings by the authorities.

Issue 5: Non-Appearance of the Assessee Before the Authorities:
The Assessee repeatedly failed to appear before the authorities, including during hearings and when summoned for statements, which hindered the presentation of a robust defense and the submission of crucial evidence to support the legitimacy of the transaction. This non-appearance further weakened the Assessee's position in challenging the assessment of income as undisclosed under Section 68 of the Act.

Issue 6: Rejection of Miscellaneous Application by the Tribunal:
The Assessee filed a Miscellaneous Application before the Income Tax Appellate Tribunal to set aside an ex-parte order and condone the delay in filing the application. However, the Tribunal rejected these requests, emphasizing the lack of evidence presented by the Assessee to counter the statements made by the key individual involved in the transaction, further solidifying the decision to tax the income as undisclosed.

In conclusion, the High Court dismissed the appeal filed by the Assessee, highlighting the importance of cooperation, provision of substantial evidence, and active participation in assessment proceedings to support claims and refute allegations effectively. The lack of diligence and non-appearance of the Assessee before the authorities significantly impacted the outcome of the case, leading to the confirmation of the assessment of long term capital gains as undisclosed income under Section 68 of the Income Tax Act.

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