2021 (11) TMI 742 - AT - Income Tax

Bogus LTCG - Addition u/s 68 - onus to prove genuineness of the transactions - HELD THAT - As relying on MR. ANIL AGRAWAL (HUF) , MUMBAI VERSUS DCIT-CENTRAL CIRCLE-3 (4) , MUMBAI 2021 (4) TMI 1252 - ITAT MUMBAI impugned additions are not sustainable in the eyes of law. The assessee had discharged the primary onus of establishing the genuineness of the transactions whereas the onus as casted upon revenue to corroborate the impugned additions by controverting the documentary evidences furnished by the assessee and by bringing on record, any cogent material to sustain those additions, could not be discharged by the revenue. The whole basis of making additions is third-party statement and no opportunity of cross-examination has been provided to the assessee to confront these parties. As against this, the assessee s position that that the transactions were genuine and duly supported by various documentary evidences, could not be disturbed by the revenue. Hence, going by the factual matrix and respectfully following the binding judicial precedents as enumerated in the order, the additions made by Ld. AO and confirmed by Ld. CIT(A), are not sustainable - Decided in favour of assessee.

Issues Involved:
1. Disallowance of claim of long-term capital gain on the sale of listed shares.
2. Reopening of the case under Section 147 of the Income Tax Act, 1961.
3. Examination of the genuineness of transactions and compliance with the principles of natural justice.
4. Application of judicial precedents and the principle of incriminating material in non-abated assessments.

Detailed Analysis:

1. Disallowance of Claim of Long-Term Capital Gain on Sale of Listed Shares:
The primary issue before the Tribunal was the disallowance of the claim of long-term capital gain (LTCG) on the sale of listed shares amounting to ?77,57,559/-. The assessee had shown exempt LTCG on the purchase/sale of shares of M/s. Splash Media Works Ltd. The Assessing Officer (AO) treated the claim as bogus based on the findings from the DIT(Investigation), Kolkata, which indicated price rigging in penny stock companies. The AO concluded that the transactions were fabricated to introduce the assessee’s unaccounted money into books of accounts. The Tribunal, however, found that the AO's conclusions were based on third-party statements without providing the assessee an opportunity for cross-examination, violating the principles of natural justice.

2. Reopening of the Case under Section 147 of the Income Tax Act, 1961:
The case was reopened under Section 147 based on information from the DIT(Investigation) regarding bogus LTCG claims through price rigging in penny stock companies. The Tribunal noted that the reopening was based on general observations and statements from third parties, which were not confronted to the assessee. The Tribunal emphasized that the failure to provide an opportunity for cross-examination made the reopening unsustainable.

3. Examination of the Genuineness of Transactions and Compliance with the Principles of Natural Justice:
The Tribunal examined the genuineness of the transactions by assessing the documentary evidence provided by the assessee, including contract notes, demat statements, and bank statements. The Tribunal found that the transactions were conducted through recognized stock exchanges, subjected to Securities Transaction Tax (STT), and were supported by substantial documentary evidence. The Tribunal held that the AO failed to disprove the assessee’s claim with cogent evidence and relied solely on third-party statements without providing the assessee an opportunity for cross-examination, which breached the principles of natural justice.

4. Application of Judicial Precedents and the Principle of Incriminating Material in Non-Abated Assessments:
The Tribunal referred to several judicial precedents, including the decision of the Hon’ble Bombay High Court in CIT V/s Continental Warehousing Corporation (Nhava Sheva) Ltd., which held that in non-abated assessments, additions could only be made based on incriminating material found during the search. The Tribunal noted that no such incriminating material was found during the search in the assessee’s case. The Tribunal also referred to the decision in M/s. Anil Agrawal (HUF) vs. DCIT, where similar additions were deleted on the grounds that the transactions were genuine and the revenue failed to establish any link between the assessee and the alleged entry providers.

Conclusion:
The Tribunal concluded that the assessee had discharged the primary onus of establishing the genuineness of the transactions. The revenue failed to disprove the assessee’s claim with substantial evidence. The additions made by the AO were not sustainable as they were based on third-party statements without providing the assessee an opportunity for cross-examination. The Tribunal allowed the appeals filed by the assessee and deleted the addition of ?77,57,559/- in respect of long-term capital gain.

Result:
The appeals filed by the assessee were allowed, and the addition made by the AO was deleted. The Tribunal emphasized the importance of following the principles of natural justice and relying on substantial evidence rather than mere suspicion or third-party statements.

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