2019 (4) TMI 877 - AT - Income Tax

Addition u/s 68 - bogus LTCG - sale proceeds of shares of Kailash Auto Finance Limited (KAFL) treating the same as income from undisclosed sources after rejecting the assessee s claim of Long Term Capital Gains (LTCG) - HELD THAT - The purchases were made by the assessee in cash for acquisition of shares of companies and the purchase of shares of the companies was done through the broker and the address of the broker was incidentally the address of the company. The profit earned by the assessee was shown as capital gains which was not accepted by the A.O. and the gains were treated as business profit of the assessee by treating the sales of the shares within the ambit of adventure in nature of trade. Thus, it can be seen that in the decision relied upon by the ld. DR, the dispute was whether the profit earned on sale of shares was capital gains or business profit. The facts of the case of the assessee are identical with the facts in the above case wherein the co-ordinate bench of the Tribunal has deleted the addition in the case of Smt. Pooja Aggarwal 2017 (9) TMI 1104 - RAJASTHAN HIGH COURT in respect of sale of shares of M/s KAFL. I, therefore, respectfully following the same set aside the order of Ld. CIT(A) and direct the AO not to treat the long term capital on sale of shares of M/s KAFL as bogus and delete the consequential addition. - Decided in favour of assessee.

Issues Involved:
1. Justification of the addition made by the AO under section 68 of the Act.
2. Validity of the assessee's claim of Long Term Capital Gains (LTCG) on the sale of shares.
3. Influence of SEBI's interim order on the AO's decision.
4. Evidence supporting the genuineness of the transactions.
5. Relevance of judicial precedents and previous Tribunal decisions.

Detailed Analysis:

1. Justification of the Addition Made by the AO Under Section 68 of the Act:

The primary issue revolves around whether the AO was justified in treating the sale proceeds of shares of Kailash Auto Finance Limited (KAFL) as income from undisclosed sources under section 68 of the Act. The AO's decision was based on the report from the Investigation Wing, Kolkata, and an interim order from SEBI, which alleged that the transactions were manipulated by entry operators and that the share prices were artificially inflated to generate LTCG. Consequently, the AO rejected the assessee's claim of LTCG and treated the entire gain as unexplained income.

2. Validity of the Assessee's Claim of Long Term Capital Gains (LTCG) on the Sale of Shares:

The assessee argued that the transactions were genuine and supported by proper documentation, including purchase bills, contract notes, demat statements, and bank statements. The Tribunal referred to previous cases, such as Manish Kumar Baid vs. ACIT, where it was held that the scrips of KAFL were not bogus and the LTCG claim was allowed. The Tribunal emphasized that the AO did not provide any legal evidence to disprove the genuineness of the transactions and relied on the theory of surrounding circumstances and preponderance of probability without concrete evidence.

3. Influence of SEBI's Interim Order on the AO's Decision:

The AO's decision was influenced by an interim order from SEBI dated 29.03.2016, which was later withdrawn on 21.09.2017. The Tribunal noted that the SEBI could not find any infirmity in the scrips of KAFL, and therefore, the restrictions imposed by the earlier order were lifted. This withdrawal of SEBI's order weakened the AO's reliance on it as a basis for treating the transactions as bogus.

4. Evidence Supporting the Genuineness of the Transactions:

The Tribunal highlighted that the assessee provided substantial evidence to support the genuineness of the transactions, including:
- Purchase bills and payment through account payee cheques.
- Demat account statements showing the holding and sale of shares.
- Contract notes from registered brokers and receipts of sale consideration through banking channels.
The Tribunal found no adverse material implicating the assessee in any price rigging or manipulation, and the AO did not disprove the authenticity of the documents provided by the assessee.

5. Relevance of Judicial Precedents and Previous Tribunal Decisions:

The Tribunal relied on various judicial precedents and previous decisions, including:
- The Special Bench of Mumbai Tribunal in the case of GTC Industries Ltd., which emphasized that suspicion or preponderance of probability cannot replace concrete evidence.
- The Hon'ble Bombay High Court's decision in CIT vs. Smt. Jamnadevi Agrawal & Ors., which upheld the genuineness of transactions when supported by documentary evidence.
- The Hon'ble Supreme Court's decision in Andaman Timber Industries, which stressed the importance of allowing cross-examination of witnesses whose statements are used against the assessee.
The Tribunal concluded that the AO's addition based on suspicion and surmises without concrete evidence was not sustainable.

Conclusion:

The Tribunal set aside the order of the Ld. CIT(A) and directed the AO not to treat the LTCG on the sale of shares of KAFL as bogus. The appeal of the assessee was allowed, and the consequential addition made by the AO was deleted. The Tribunal emphasized the importance of concrete evidence over suspicion and the necessity of adhering to principles of natural justice.

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