2019 (10) TMI 975 - AT - Income Tax

Bogus LTCG - addition u/s 68 - sale of shares - It was pointed out by the ld AR that the A.O. has nowhere in the assessment order referred to any material which can prove the complicity of assessee in the alleged accommodation entry operation. According to Ld. AR, the AO/CIT(A) was not justified in invoking the provisions of section 68 of the Act in regard to the sale proceeds of shares. HELD THAT - the AO was influenced by an interim order of SEBI dated 29.03.2016, which the SEBI has withdrawn by later order dated 21.09.2017 by virtue of it all the restrictions imposed upon by the earlier order dated 29.03.2016 has been withdrawn, since SEBI could not find any infirmity in the scrips of M/s. KAFL. Action of the Ld. CIT(A)/AO cannot be accepted, since the scrip of M/s. KAFL cannot be held to be bogus; and based on the finding of fact supra which are supported by documents which have not been adversely commented upon by AO/Ld. CIT(A) we are inclined to allow all the appeals of the assessee and direct the AO to allow the claim of LTCG on sale of scrips of M/s. KAFL in respect of all the assessees. See MANISH KUMAR BAID AND MAHENDRA KUMAR BAID VERSUS ACIT, CIR-35, KOLKATA 2017 (10) TMI 522 - ITAT KOLKATA - Decided in favour of assessee.

Issues Involved:
1. Whether the addition made by the AO under section 68 of the Income-tax Act, 1961, regarding the sale proceeds of shares of M/s Kailash Auto Finance Limited (KAFL) as income from undisclosed sources, was justified.
2. Whether the assessee's claim of Long Term Capital Gains (LTCG) under section 10(38) of the Act on the sale of those shares was valid.
3. Whether the transactions in the scrip of KAFL were manipulated by entry operators to earn LTCG.
4. Whether the AO's reliance on the report of the Investigation Wing, Kolkata, and an order by SEBI was justified.
5. Whether the assessee's transactions were genuine and conducted in the normal course of investment.
6. Whether the assessment of sale proceeds of shares as undisclosed income under section 68 was appropriate.

Issue-wise Detailed Analysis:

1. Addition under Section 68 of the Income-tax Act, 1961:
The AO added the entire LTCG to the income of the assessee as unexplained income under section 68, treating the sale proceeds of shares of KAFL as income from undisclosed sources. The AO's conclusion was based on the assumption that the purchase of shares was a predetermined move to bring back unaccounted money. The AO also relied on the report of the Investigation Wing, Kolkata, and an interim order by SEBI, which alleged that the transactions were manipulated by entry operators.

2. Assessee's Claim of LTCG under Section 10(38):
The assessee claimed LTCG of ?43,41,314/- on the sale of shares of KAFL, which was exempt under section 10(38) of the Act. The assessee provided various documents, including purchase bills, bank statements, demat statements, and contract notes, to substantiate the claim. The assessee argued that the transactions were genuine and conducted through a registered broker on the Bombay Stock Exchange (BSE).

3. Alleged Manipulation of Transactions:
The AO alleged that the transactions in the scrip of KAFL were manipulated by entry operators to artificially hike the share prices and earn LTCG. The AO's conclusion was based on circumstantial evidence and the modus operandi described in the assessment order. However, the assessee contended that there was no material evidence to prove the complicity of the assessee in the alleged price rigging or accommodation entry operation.

4. Reliance on Investigation Wing Report and SEBI Order:
The AO relied on the report of the Investigation Wing, Kolkata, and an interim order by SEBI dated 29.03.2016, which was later withdrawn by SEBI on 21.09.2017. The assessee argued that the withdrawal of the SEBI order indicated that SEBI could not find any infirmity in the scrips of KAFL. The assessee also pointed out that the AO did not provide any material evidence to prove the allegations against the assessee.

5. Genuineness of Transactions:
The assessee provided various documents to substantiate the genuineness of the transactions, including purchase bills, bank statements, demat statements, and contract notes. The assessee argued that the transactions were conducted in the normal course of investment and were not part of any dubious scheme to launder unaccounted money. The assessee also contended that the AO's reliance on human probability and vague observations without any admissible evidence was not justified.

6. Assessment of Sale Proceeds as Undisclosed Income:
The AO assessed the sale proceeds of shares as undisclosed income under section 68, treating the entire LTCG as bogus. The assessee argued that the AO's action was not justified as the assessee had provided all relevant documents to explain the source of the amounts received from the brokers. The assessee contended that the AO's assessment was based on suspicion and surmises without any material evidence.

Conclusion:
The Tribunal analyzed the facts and circumstances of the case, including the documents provided by the assessee and the AO's reliance on the Investigation Wing report and SEBI order. The Tribunal found that the assessee had provided sufficient evidence to substantiate the genuineness of the transactions and that the AO's assessment was based on suspicion and conjectures without any material evidence. The Tribunal allowed the appeals of the assessee, directing the AO to allow the claim of LTCG on the sale of shares of KAFL and delete the consequential addition. The Tribunal also distinguished various judicial pronouncements relied upon by the Revenue, finding them not applicable to the facts of the case.

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