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2019 (5) TMI 841 - AT - Income TaxBogus LTCG - sale of shares after payment of Security Transactions Tax (STT) - bogus unexplained cash credits u/s 68 - HELD THAT - The fact remains that neither the department had supplied copy of alleged entry operator statement nor there is any material on record that they have named this taxpayer as the beneficiary of the impugned capital gains derived by rigging scrip s share prices. Both the AO as well as CIT(A) are fair enough in observing that the said two persons have named the scrip rather than the assessee in their respective search statement. We therefore quote this tribunal s decision in Prakash Chand Bhutoria vs. ITO 2018 (7) TMI 46 - ITAT KOLKATA deleting identical addition for lack of any evidence against the concerned assessee. Bogus capital gains against the taxpayer based on circumstantial evidence. Hon'ble jurisdictional high court s judgment ALPINE INVESTMENTS 2008 (8) TMI 961 - CALCUTTA HIGH COURT taken into consideration in learned co-ordinate bench s order hereinabove has held as the contrary that any addition of this nature not based on evidence is not sustainable. We therefore direct the Assessing Officer to delete the impugned addition by following above detailed reasoning mutatis mutandis . - Decided in favour of assessee.
Issues Involved:
1. Treatment of Long Term Capital Gains (LTCG) as bogus unexplained cash credits under Section 68 of the Income Tax Act, 1961. 2. Validity of evidence and procedural fairness in the assessment process. 3. Reliance on judicial precedents and circumstantial evidence. Issue-wise Detailed Analysis: 1. Treatment of Long Term Capital Gains (LTCG) as bogus unexplained cash credits under Section 68 of the Income Tax Act, 1961: The primary issue in this case was whether the LTCG of ?76,68,565/- arising from the sale of shares should be treated as bogus unexplained cash credits under Section 68 of the Income Tax Act, 1961. The CIT(A) observed that the assessee was not a regular investor in shares, and the shares in question were identified as penny stocks by the department's investigation wing. The AO concluded that the transactions were structured to bring unaccounted money into the books without paying tax under the guise of LTCG. The CIT(A) supported this view, noting the unusual and phenomenal return on investment and the lack of substantial net worth of the company involved, Cressanda Solutions Pvt. Ltd. 2. Validity of evidence and procedural fairness in the assessment process: The assessee contended that the department did not supply the copy of the alleged entry operator statements, nor was there any material evidence that named the taxpayer as the beneficiary of the impugned capital gains. The tribunal found merit in the assessee’s argument, noting that the AO and CIT(A) had relied on statements from entry operators without providing these to the assessee for rebuttal. The tribunal cited its decision in Prakash Chand Bhutoria vs. ITO, emphasizing that evidence collected from third parties cannot be used against the assessee without due process. 3. Reliance on judicial precedents and circumstantial evidence: The tribunal referred to multiple judicial precedents, including decisions from the Hon'ble Supreme Court and various High Courts, which underscored that suspicion, however strong, cannot replace evidence. The tribunal highlighted cases where similar additions were deleted due to a lack of concrete evidence against the assessee. Specific references included decisions in CIT vs. Shreyashi Ganguli, CIT vs. Rungta Properties Private Limited, and CIT vs. Bhagwati Prasad Agarwal, where transactions supported by documentary evidence were upheld as genuine despite allegations of being bogus. Conclusion: The tribunal found no merit in the Revenue's arguments, noting the absence of direct evidence against the assessee and procedural lapses in the assessment process. It directed the AO to delete the impugned addition, thereby allowing the assessee's appeal. The tribunal emphasized the importance of adhering to procedural fairness and relying on concrete evidence rather than circumstantial or generalized suspicion. The judgment reiterated the principle that transactions supported by valid documents and conducted through recognized channels should not be dismissed as bogus without substantial proof.
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