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2023 (1) TMI 206 - AT - Income TaxBogus LTCG - exemption u/s.10(38) in respect of long term capital gain earned on shares denied - HELD THAT - Shares were sold on the same day shares were entered in the DEMAT. CIT(A) also noted that broker s name was prominently reflected in the investigation report of the Department, and further noted that shares were kept in pool holding of the broker. The ld.CIT(A) noted that as per SEBI rules, if full payment of shares purchased was made, then the broker had to transfer the shares to the client s DEMAT within 24 hours. In the case of the assessee shares were converted into DEMAT form only after seven days. He therefore rejected the assessee s pleading that the shares were kept in the pool account of the broker, since his explanation was not correct in accordance with the SEBI rules in this regard. CIT(A) held that there was no credible evidence to say that the assessee was having shares till 8.8.2014 and why the shares were with the broker till they were sold was not known. He accordingly held the entire evidences self-serving and stagemanaged, and therefore, upheld the addition made by the AO. The findings of the ld.CIT(A), we find are very detailed, who has made further inquiry with respect to the issue and found entire transaction to be bogus. Since the assessee has not come before me in support of his appeal, have no option but to confirm the concurrent finding of both the Revenue authorities on the issue. Accordingly, grounds of appeal of the assessee are rejected.
Issues Involved:
1. Denial of exemption under Section 10(38) of the Income Tax Act for long-term capital gains on shares. 2. Non-recognition of cash payment for the purchase of shares as genuine. 3. Lack of opportunity for cross-examination of third parties. 4. Additions made based on surmises and conjectures. Issue-wise Detailed Analysis: 1. Denial of Exemption under Section 10(38): The primary issue in the appeal was the denial of exemption under Section 10(38) of the Income Tax Act, 1961, for long-term capital gains claimed by the assessee on the sale of shares. The assessee had shown long-term capital gains from the sale of shares of Lifeline Drugs & Pharma Ltd, which were claimed as exempt. The Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] held the transaction to be bogus, treating the entire sale consideration as income. The AO noted that the shares were purchased at a very low price and sold at a significantly higher price within a short span, which was suspicious. The AO relied on information from the Investigation Wing and SEBI reports, concluding that the transactions were accommodation entries to camouflage undisclosed income. The CIT(A) upheld the AO's findings, noting that the shares were purchased in cash, never appeared in the DEMAT account until the day of sale, and were sold immediately upon dematerialization. The CIT(A) concluded that the transactions were stage-managed to claim tax exemption. 2. Non-recognition of Cash Payment for Purchase of Shares: The assessee contended that the cash payments made for the purchase of shares were genuine. However, the AO and CIT(A) found no credible evidence to support this claim. The CIT(A) emphasized that the shares were purchased off-market in cash, kept in the pool holding of the broker, and dematerialized only on the day of sale. The CIT(A) rejected the assessee's explanation that the shares were kept in the broker's pool account, as SEBI rules required shares to be transferred to the client's DEMAT account within 24 hours of full payment. The CIT(A) concluded that the lack of credible evidence and the unusual circumstances surrounding the transactions indicated that the payments were not genuine. 3. Lack of Opportunity for Cross-Examination: The assessee argued that the addition made by the AO was without providing an opportunity for cross-examination of third parties. The CIT(A) addressed this issue by stating that the necessary evidence had been provided to the assessee and that the Income Tax proceedings are semi-judicial. The CIT(A) relied on Supreme Court judgments to support the view that the preponderance of probability, rather than conclusive proof, is sufficient in income tax cases. The CIT(A) concluded that the procedural fairness was maintained, and the assessee's request for cross-examination was not justified. 4. Additions Based on Surmises and Conjectures: The assessee claimed that the additions made by the AO were based on surmises and conjectures. The CIT(A) and AO, however, provided detailed findings based on circumstantial evidence and the peculiar facts of the case. The AO noted the history of the shares, the unusual price fluctuations, and the lack of credible explanation for the source of purchase. The CIT(A) further investigated and found the transactions to be stage-managed and lacking credible evidence. The CIT(A) upheld the AO's addition, concluding that the transactions were designed to claim undue tax benefits. Conclusion: The appeal was dismissed, with the findings of the AO and CIT(A) being upheld. The CIT(A) provided a detailed analysis, concluding that the transactions were bogus and aimed at claiming undue tax exemption. The assessee's grounds of appeal were rejected, and the addition made by the AO was confirmed. Order Pronouncement: The order was pronounced in the Court on 28th September 2022 at Ahmedabad.
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