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2021 (9) TMI 1004 - HC - Income TaxBogus LTCG - onus to prove - Penny stock purchases - Claim made u/s 10(38) denied - ITAT remanded the matter back by setting aside the additions - HELD THAT - As decided in MRS. MANISH D. JAIN (HUF) 2020 (12) TMI 740 - MADRAS HIGH COURT Not only the Assessing Officer, but also the CIT(A) examined the modus operandi of the assessee and held that the shares were purchased through off market and not through Stock Exchange and that the selling rates were artificially hiked later on. The above findings have not been set aside by the Tribunal and there is no reason for the Tribunal to remand the matter to the Assessing Officer for a fresh consideration. There was no material, which necessitated the remand of the case to the Assessing Officer and it is a clear case where the Tribunal had failed to exercise its jurisdiction in the manner known to law.Tribunal, being a last fact finding Authority, is under the legal obligation to record a correct finding of fact. Where all the evidence had been produced and the CIT(A), after full investigation of the evidence and examination of the accounts, had given a definite finding on the question in issue, the Tribunal's order of remand was held to be invalid. Substantial questions of law framed are answered in favour of the Revenue
Issues Involved:
1. Whether the Tribunal was right in setting aside the well-reasoned order passed by the Assessing Officer for reexamination. 2. Whether the Tribunal was justified in remitting the issue back to the Assessing Officer by quoting the decision in a previous case. 3. Whether the Tribunal's finding was perverse, especially when the decision was contrary to the principle that the person who asserts a fact has to discharge the initial burden of proof. Detailed Analysis: Issue 1: Setting Aside the Order for Reexamination The Tribunal's decision to set aside the order of the Assessing Officer (AO) was challenged by the Revenue. The AO had examined all the material and found the assessee involved in a sham transaction to generate artificial long-term capital gains. The AO's findings were affirmed by the Commissioner of Income Tax (Appeals) [CIT(A)]. The Tribunal, however, remanded the matter back to the AO. The High Court found that the Tribunal did not interfere with the factual findings of the AO and CIT(A), and thus, there was no justification for the remand. The High Court emphasized that remand should not be exercised routinely and should be used sparingly when warranted by the facts. Issue 2: Remitting the Issue Back to the AO The Tribunal remitted the issue back to the AO by relying on its earlier decision in the case of Kanhaiyalal & Sons (HUF). The High Court noted that similar issues had been considered in other cases where the Tribunal's decision was overturned. The High Court referenced the case of CIT Vs. Manish D.Jain (HUF), where it was held that the Tribunal's remand was unjustified and devoid of reasons. The Tribunal should have recorded reasons for remanding the matter and should have decided the factual issue based on the available material. The High Court found that the Tribunal failed to exercise its jurisdiction properly. Issue 3: Tribunal's Finding and Burden of Proof The High Court examined whether the Tribunal's finding was perverse, especially when it contradicted the principle that the person asserting a fact must discharge the initial burden of proof. The High Court referred to several judgments, including Sumati Dayal Vs. CIT and NRA Iron & Steel Private Limited, which established that the initial onus is on the assessee to prove the genuineness of transactions. The AO had conducted a detailed inquiry and found that the assessee's transactions were engineered to generate artificial long-term capital gains. The Tribunal did not find any error in the AO's approach but still remanded the matter, which the High Court found unjustified. Conclusion: The High Court allowed the Revenue's appeal, set aside the Tribunal's order, and restored the order of the CIT(A). The substantial questions of law were answered in favor of the Revenue. The High Court emphasized that the Tribunal should have acted with greater circumspection and should not have remanded the matter without proper justification. The decision underscores the importance of the initial burden of proof lying with the assessee and the necessity for the Tribunal to record reasons for remanding cases.
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