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2020 (5) TMI 551 - AT - Income TaxBogus LTCG - Penny stock purchases - unexplained credit u/s.68 - onus to prove - HELD THAT - Since, the right to exemption must be established by those who seek it, the onus therefore lies on the assessee. In order to claim the exemption from payment of income tax, the assessee had to put before the Income Tax Authorities proper materials which would enable them to arrive at a conclusion . 1958 (10) TMI 9 - SUPREME COURT . However, in this case, it is seen from the order of the Ld.CIT(A), supra, that the assessee has not placed relevant material and proved the genuineness of the impugned transactions. Although, an appeal against the above order has been filed before this tribunal, even before us also, the assessee has not challenged the findings recorded by the lower authorities with relevant material and hence we dismiss the appeal of assessee.
Issues Involved:
1. Determination of the genuineness of Long Term Capital Gain (LTCG) claimed as exempt under Section 10(38) of the Income Tax Act. 2. Validity of the Assessing Officer's treatment of the sale consideration as unexplained credit under Section 68. 3. Examination of circumstantial evidence and the modus operandi of alleged bogus transactions. 4. Onus of proving the genuineness of transactions for claiming income tax exemptions. Issue-wise Detailed Analysis: 1. Determination of the Genuineness of LTCG Claimed as Exempt Under Section 10(38): The primary issue was whether the LTCG earned from the purchase and sale of shares of Kailash Auto Finance Ltd. was genuine. The Assessing Officer (AO) received a report from the investigation wing of Kolkata, which identified the assessee as involved in bogus/non-genuine LTCG transactions. The shares of Kailash Auto Finance Ltd. were found to be part of a scheme to generate bogus LTCG through stock market manipulation. The AO scrutinized the transactions and concluded that the assessee deliberately engaged in sham transactions to convert unaccounted money into accounted money under the guise of exempt capital gains. 2. Validity of the Assessing Officer's Treatment of the Sale Consideration as Unexplained Credit Under Section 68: The AO treated the entire sale consideration of ?39,04,542/- as unexplained credit under Section 68. The AO's decision was based on the substantial gains shown on the sale of penny stocks within a short period, indicating a sham transaction. The CIT(A) upheld this treatment, noting that the assessee failed to provide relevant material to establish the genuineness of the transactions. 3. Examination of Circumstantial Evidence and the Modus Operandi of Alleged Bogus Transactions: The AO detailed the modus operandi of the bogus transactions, including the use of penny stock companies, accommodation entries, and manipulation of stock prices. The AO relied on various statements and evidence from the investigation wing, which revealed that promoters, brokers, and operators colluded to create artificial demand and rig stock prices. The SEBI's findings and orders also supported the AO's conclusion that the transactions were engineered to generate non-genuine LTCG. 4. Onus of Proving the Genuineness of Transactions for Claiming Income Tax Exemptions: The Tribunal emphasized that the onus of proving the genuineness of transactions lies with the assessee. The assessee failed to provide sufficient evidence to rebut the AO's findings and establish the genuineness of the LTCG. The Tribunal cited the Supreme Court's decision in Sumati Dayal Vs CIT, which states that the burden of proving that a receipt is not taxable lies with the assessee. In this case, the assessee did not challenge the findings of the lower authorities with relevant material, leading to the dismissal of the appeal. Conclusion: The Tribunal dismissed the appeal filed by the assessee, upholding the AO's treatment of the sale consideration as unexplained credit under Section 68 and the rejection of the LTCG exemption claim under Section 10(38). The Tribunal concluded that the assessee failed to prove the genuineness of the transactions and the findings of the lower authorities were not challenged with relevant material.
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