2020 (4) TMI 50 - AT - Income Tax

Exemption u/s 10(38) denied - Denial of an opportunity of fair hearing by providing copy of the statement and related details - HELD THAT - As decided in case of Chandra Devi Kothari 2015 (2) TMI 1313 - KARNATAKA HIGH COURT as held that since the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details, the matter is required to be reconsidered by the AO by providing fair and reasonable opportunity of hearing to the assessee after furnishing details / copy of the statement based on which the impugned assessment order has been passed. From the above Para from the judgment of Hon ble Karnataka High Court, it is seen that matter was restored back to the file of the AO for fresh decision - Assessee s appeal is allowed for statistical purposes.

Summary

Issues involved:
Appeal against order of CIT(A) denying exemption under section 10(38) for long term capital gains from sale of shares. Allegations of unexplained cash credits under section 68. Reliance on investigation findings and statements without providing opportunity for cross-examination. Challenge to AO's reliance on generic findings. Assessment under section 68 disputed due to lack of evidence. Errors in AO's assessment order contested. Addition made based on conjecture and surmises without direct adverse material. Request for opportunity to modify grounds at hearing.

Analysis:

1. Denial of Exemption under Section 10(38):
The appellant, an individual with various sources of income, declared a total income for AY 2015-16, including long term capital gains from sale of shares claimed as exempt under section 10(38). However, the Assessing Officer raised concerns regarding the genuineness of the transaction due to SEBI directions regarding the company's shares. Despite the appellant providing documentary evidence and explanations, the AO treated the gain as unexplained cash credits under section 68. The CIT(A) upheld this decision, leading to the appeal before the Tribunal.

2. Allegations of Unexplained Cash Credits under Section 68:
The AO's decision to treat the gain as unexplained cash credits under section 68 was based on suspicions and conjectures, without direct adverse material against the appellant. The appellant argued that all transactions were genuine and carried out through banking channels, providing necessary documents to support the claim. The burden of proof was shifted to the department, which failed to substantiate its stance. The Tribunal's consideration of similar issues in previous cases highlighted the need for a fair hearing and providing relevant details before making such assessments.

3. Reliance on Investigation Findings and Statements:
The appellant contested the AO's reliance on generic findings and information from the investigation wing without any direct connection to the case. The appellant was not provided with an opportunity to cross-examine the parties whose statements influenced the assessment. The lack of access to sworn statements and the absence of cross-examination raised concerns regarding the principles of natural justice and fairness in the assessment process.

4. Dispute Regarding Assessment under Section 68:
The appellant challenged the assessment under section 68, arguing that the transactions did not meet the conditions for invoking this provision. Errors and erroneous observations in the AO's assessment order, which influenced the CIT(A)'s decision, were highlighted as misleading and unjust. The appellant emphasized the need for a proper examination of the grounds and evidence before making additions to the assessed income.

5. Addition Based on Conjecture and Surmises:
The appellant criticized the addition made by the AO, which was solely based on suspicions and conjectures without substantial evidence against the appellant. The lack of direct adverse material and the reliance on arbitrary examinations raised doubts about the validity of the assessment. The appellant reserved the right to modify grounds at the time of the hearing, indicating a readiness to address any additional issues that may arise during the proceedings.

In conclusion, the Tribunal partly allowed the appeal for statistical purposes, remitting the issue back to the Assessing Officer for a fresh decision following similar directions from previous cases. The decision highlighted the importance of fair hearings, providing relevant details, and ensuring a thorough examination of evidence before making assessments related to exemptions and unexplained cash credits.