2019 (8) TMI 1323 - AT - Income Tax

Bogus LTCG - Addition u/s 68 - HELD THAT - Since the purchase and sale transactions are supported and evidenced by Bills, Contract Notes, Demat statements and bank statements etc., and when the transactions of purchase of shares were accepted by the ld AO in earlier years, the same could not be treated as bogus simply on the basis of some reports of the Investigation Wing and/or the orders of SEBI and/or the statements of third parties. Direct the AO not to treat the long term capital gain and short term capital loss as bogus and to allow the same and so, delete the consequential addition. - Decided in favour of assessee.

Summary

Issues Involved:
1. Addition under Section 68 of the Income-tax Act, 1961 concerning Long Term Capital Gains (LTCG) from shares of M/s. SRK Industries Ltd.
2. Addition of commission amount related to LTCG.

Issue-Wise Detailed Analysis:

1. Addition under Section 68 of the Income-tax Act, 1961 concerning Long Term Capital Gains (LTCG) from shares of M/s. SRK Industries Ltd.:

The main grievance of the assessee was the confirmation of the addition made by the Assessing Officer (AO) under Section 68 of the Income-tax Act, 1961. The AO added ?10,68,061/- as unexplained cash credit, suspecting that the LTCG claimed by the assessee from the sale of shares of M/s. SRK Industries Ltd. was bogus. The AO believed that the significant increase in the share price was manipulated to launder money.

The assessee provided documentary evidence, including purchase bills, bank statements, contract notes, and demat statements, to support the genuineness of the transactions. The shares were purchased through an account payee cheque and sold through a registered broker at the Bombay Stock Exchange (BSE). The shares were held in a demat account for more than a year.

The AO's suspicion was based on a general investigation report by the Department and SEBI, which suggested price rigging. However, there was no direct evidence linking the assessee to any fraudulent activity. The Tribunal noted that all transactions were conducted through the stock exchange and banking channels, making it difficult to conclude that the transactions were bogus without concrete evidence.

The Tribunal relied on several judicial precedents where similar transactions were held genuine based on documentary evidence. It was emphasized that suspicion alone could not replace legal proof. The Tribunal concluded that the AO and CIT(A) had wrongly invoked Section 68 and directed the AO to allow the LTCG claim.

2. Addition of commission amount related to LTCG:

The AO had also added ?5340/- as commission allegedly paid for arranging the bogus LTCG. Since the Tribunal found the LTCG transactions to be genuine, it directed the deletion of the commission addition as well.

Conclusion:

The Tribunal allowed the appeal, overturning the decisions of the lower authorities. It directed the AO to accept the LTCG claim and delete the addition of the commission amount. The judgment emphasized the importance of concrete evidence over suspicion and upheld the genuineness of the transactions based on the documentary evidence provided by the assessee.