2019 (10) TMI 837 - AT - Income Tax

Bogus LTCG - addition u/s. 68 - exempt 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 ld. DR, the dispute was whether the profit earned on sale of shares was capital gains or business profit. It is clear from the above that the facts of the case of the assessee are similar with the facts of the cases discussed supra in para 6 wherein the co-ordinate bench of the Tribunal has deleted the addition and allowed the claim of LTCG and accepted the scrips of M/s. SESL and M/s. SRKIL are not bogus. We, therefore, set aside the order of Ld. CIT(A) and direct the AO not to treat the long term capital gain as bogus and to allow the same and so, delete the consequential addition. Addition on account of unexplained expenditure incurred for earning the LTCG u/s. 69C - assessee s claim of LTCG, the consequential expenses incurred by the assessee in this regard is also allowed.

Summary

Issues Involved:
1. Addition made by the AO under Section 68 of the Income-tax Act, 1961, regarding long-term capital gain (LTCG) from the sale of shares.
2. Confirmation of the addition by the CIT(A).
3. Unexplained expenditure under Section 69C of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Addition under Section 68 of the Income-tax Act, 1961:
The assessee claimed a long-term capital gain (LTCG) of ?27,35,178/- from the sale of shares of M/s. Sulabh Engineers & Services Ltd. (M/s. SESL) and M/s. SRK Industries Ltd. (M/s. SRKIL), which was claimed as exempt under Section 10(38) of the Income-tax Act, 1961. The Assessing Officer (AO) alleged that the transactions were stage-managed and pre-arranged to launder the assessee's own money. The AO's conclusion was based on an investigation by the Department and other agencies like SEBI, which suggested a modus operandi involving artificially inflating share prices. Despite the assessee providing various documents to substantiate the transactions, the AO added the entire claim of ?27,35,178/- as income. The CIT(A) confirmed the AO's action.

2. Confirmation by CIT(A):
The CIT(A) upheld the AO's decision, agreeing that the transactions were not genuine. The assessee, represented by the Ld. AR, argued that all necessary documents were provided, and the transactions were conducted through recognized stock exchanges and brokers, with shares held in a demat account and sold through banking channels. The Ld. AR contended that there was no evidence of any nefarious activity by the assessee. The Ld. DR supported the order of the lower authorities, emphasizing that the transactions were pre-arranged and stage-managed to launder money.

3. Tribunal's Analysis and Decision:
The Tribunal noted that the assessee had provided ample documentary evidence, including purchase and sale contract notes, demat statements, and bank statements, showing that the transactions were conducted through recognized stock exchanges and banking channels. The Tribunal found no material evidence to suggest that the documents were false or fabricated. It was observed that the AO's reliance on the modus operandi suggested by the Investigation Wing and SEBI was not substantiated by concrete evidence against the assessee.

The Tribunal cited several cases where similar transactions were held to be genuine, including:
- Asish Kumar Ghosh Vs. DCIT (ITA No. 1164/Kol/2019)
- Shreyan Chopra Vs. ACIT (ITA No. 661/Kol/2018)
- CIT vs. Smt. Jamnadevi Agrawal & Ors. (2010) 328 ITR 656 (Bombay High Court)
- CIT vs. Smt. Pushpa Malpani (2011) 242 CTR (Raj.) 559 (Rajasthan High Court)
- Anupam Kapoor 299 ITR 0179 (Punjab and Haryana High Court)

The Tribunal also referenced the Supreme Court's decision in Andaman Timber Industries, emphasizing the importance of allowing cross-examination and the necessity of concrete evidence to discredit the assessee's claims.

4. Unexplained Expenditure under Section 69C:
Since the Tribunal allowed the assessee's claim of LTCG, the consequential expenses incurred for earning the LTCG were also allowed.

Conclusion:
The Tribunal overturned the decisions of the AO and CIT(A), directing the AO to allow the assessee's claim of LTCG and to delete the consequential addition. The appeal of the assessee was allowed, and the order was pronounced on 23rd August 2019.