2022 (6) TMI 450 - AT - Income Tax

Reopening of assessment u/s 147 - bogus Long Term Capital Gain on share transaction by treating the same as undisclosed investment of the assessee - HELD THAT - The very basis of reopening of the assessment as reflected in the reasons recorded by the Assessing Officer thus was unfounded and there being no claim of any Long Term Capital Gain made by the assessee much less a bogus Long Term Capital Gain as believed by the Assessing Officer, the reopening of assessment itself on the basis of such wrong and non-existent premises was bad in law as rightly contended by assessee and the assessment made in pursuance therein under Section 143(3) r.w.s. 147 of the Act is liable to be quashed being invalid. As further contended on behalf of the assessee before there learned CIT(A) as well as before the Tribunal, the entire value of share transactions cannot be treated as unexplained investment by the assessee and that too without giving the assessee an opportunity to explain the exact quantum of investment as well as source thereof and the addition so made by the Assessing Officer and confirmed by the learned CIT(A) on account of such unexplained investment allegedly made by the Assessing Officer is not sustainable on merit also. This appeal of the assessee is accordingly allowed.

Summary

Issues:
1. Validity of assessment made under Section 143(3) r.w.s. 147 of the Income-tax Act.
2. Addition of Rs.7,92,237/- treating it as undisclosed investment due to alleged bogus Long Term Capital Gain.

Analysis:
1. The appeal was against the order of the Commissioner of Income-Tax (Appeals) regarding the assessment of an individual assessee who had entered into share transactions resulting in Long Term Capital Gain. The Assessing Officer treated the gain as undisclosed income and made an addition of Rs.7,92,237/- to the total income under Section 69 of the Act. The assessee challenged the assessment validity and the addition before the CIT(A) and subsequently before the Tribunal. The CIT(A) upheld the assessment and addition, leading to the appeal before the Tribunal.

2. The preliminary issue challenged the validity of the assessment under Section 143(3) r.w.s. 147 of the Act. The assessee argued that the basis for reopening the assessment was flawed as the transactions actually resulted in a Short Term Capital Loss, not Long Term Capital Gain as claimed. The Tribunal agreed with the assessee, stating that the entire value of transactions could not give rise to Long Term Capital Gain, and the reopening of assessment on such grounds was invalid. The Tribunal found the reopening of assessment based on non-existent premises and the addition of undisclosed investment unsustainable.

3. The Tribunal observed that the Assessing Officer accepted the entire value of share transactions at Rs.7,92,237/-, which actually led to a Short Term Capital Loss of Rs.3,61,645/- for the assessee. The reasons recorded for reopening the assessment were deemed unfounded, as there was no Long Term Capital Gain as believed by the Assessing Officer. The Tribunal agreed with the assessee's contention that the entire value of share transactions could not be treated as unexplained investment without allowing the assessee to explain the investment source. Consequently, the Tribunal allowed the appeal, quashing the assessment and addition made by the Assessing Officer and confirmed by the CIT(A).

4. The Tribunal allowed the appeal of the assessee, finding the assessment invalid and the addition of undisclosed investment unsustainable. The decision was pronounced in an open court on 8th June 2022 at Ahmedabad.