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2019 (7) TMI 867 - AT - Income TaxBogus LTCG - denying the exemption claimed by the assessee u/s 10(38) - HELD THAT - 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 DR, the dispute was whether the profit earned on sale of shares was capital gains or business profit. In the light of the documents filed by the assessee before the AO/Ld. CIT(A) and before me, which could not be controverted by any material by AO, so respectfully following the ratio laid by the Hon ble jurisdictional High Court and other High Courts and the ratio laid by the Hon ble Supreme Court and this Tribunal, and the decision in the case of Navneet Agarwal 2018 (8) TMI 509 - ITAT KOLKATA wherein the claim of LTCG for sale of shares of M/s. Cressenda Solutions Ltd. which was allowed by the Tribunal. Respectfully following the same, allow the claim of the assessee in respect of Long Term Capital Gain in respect of sale of shares of M/s. Cressanda Solutions Ltd and direct deletion of addition for AY 2015-16. Grounds of appeal of assessee challenging the addition made on this issue are allowed. - Appeals of assessee are allowed.
Issues Involved:
1. Treatment of Long Term Capital Gains (LTCG) as fictitious and denial of exemption under Section 10(38) of the Income-tax Act, 1961. 2. Validity of evidence provided by the assessee to substantiate the LTCG claim. 3. Reliance on the Investigation Wing’s report by the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)]. 4. The principle of natural justice and the right to cross-examination. 5. Legal precedents supporting the assessee’s claim. Issue-wise Detailed Analysis: 1. Treatment of Long Term Capital Gains (LTCG) as fictitious and denial of exemption under Section 10(38) of the Income-tax Act, 1961: The main grievance of the assessee was against the action of the CIT(A) in confirming the AO's decision to treat LTCG of ?14,08,205/- for AY 2014-15 and ?36,21,880/- for AY 2015-16 as fictitious, thereby denying the exemption claimed under Section 10(38) of the Act. The AO argued that the LTCG claimed by the assessee was fictitious, citing an investigation revealing that certain stocks were manipulated to provide bogus LTCG. 2. Validity of evidence provided by the assessee to substantiate the LTCG claim: The assessee provided various documents, including purchase bills, sale contracts, demat account statements, and bank statements to substantiate the LTCG claim. The AO, influenced by the investigation report, did not find any defects in these documents but still treated the LTCG as fictitious. The Tribunal noted that the transactions were carried out on a recognized stock exchange and through a registered broker, with all payments made through banking channels. 3. Reliance on the Investigation Wing’s report by the AO and CIT(A): The AO relied heavily on the Investigation Wing’s report, which identified certain stocks as being involved in providing bogus LTCG. However, the Tribunal observed that the AO did not provide the assessee with a copy of the investigation report, nor did he confront the assessee with any specific evidence from the report. The Tribunal emphasized that the AO's reliance on the investigation report without confronting the assessee with the evidence was a violation of natural justice. 4. The principle of natural justice and the right to cross-examination: The Tribunal highlighted that the non-furnishing of any material used by the AO to draw adverse views against the assessee violated the principles of natural justice. The Tribunal cited various legal precedents emphasizing the right to cross-examination and the necessity of providing the assessee with an opportunity to rebut the evidence used against them. 5. Legal precedents supporting the assessee’s claim: The Tribunal referred to several judicial precedents where similar claims of LTCG were upheld. Notably, the Tribunal cited the case of Navneet Agarwal vs. ITO, where the LTCG claim for the sale of shares of M/s. Cressanda Solutions Ltd. was upheld. The Tribunal reiterated that suspicion, however strong, cannot replace evidence and that the AO must provide concrete evidence to disprove the assessee’s claims. Conclusion: The Tribunal allowed the appeals of the assessee, directing the deletion of the additions made by the AO for both AY 2014-15 and AY 2015-16. The Tribunal emphasized the importance of adhering to the principles of natural justice and the necessity of concrete evidence to support any claims of fictitious transactions. The Tribunal's decision underscored the need for the AO to provide specific evidence and allow the assessee the opportunity to rebut such evidence, rather than relying on general reports and suspicions.
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