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2023 (3) TMI 519 - AT - Income TaxBogus LTCG - disallowance of exempted capital gain on sale of shares being bogus accommodation entry and addition being unexplained expenses incurred for taking such accommodation entry - CIT-A deleted addition - HELD THAT - There cannot be any addition to the total income of the assessee of the regular items of income shown in the books of accounts as made by the AO in the present case. As such, the assessee has duly disclosed the income under the capital gain on sale and purchase of the shares of the company namely M/s Sawaca Business Machine Limited. Accordingly, we do not find any infirmity in the order of the learned CIT (A). Hence, we uphold the same. Thus the ground of appeal of the Revenue is hereby dismissed.
Issues Involved:
1. Limitation of assessment u/s 153A to incriminating material found during search u/s 132. 2. Deletion of addition made u/s 68 by treating LTCG as bogus. 3. Deletion of addition made u/s 69C for unexplained expenditure. Summary: Issue 1: Limitation of Assessment u/s 153A The Revenue contended that the CIT(A) erred in holding that any addition during the assessment u/s 153A must be confined to the incriminating material found during the search u/s 132, despite no such stipulation in sec. 153A. The Tribunal upheld the CIT(A)'s view, referencing the Gujarat High Court's decision in Saumya Construction Pvt. Ltd., which states that no addition can be made in reassessment u/s 153A if no incriminating material is found during the search. The Tribunal concluded that the assessment for the year under consideration, being an unabated/completed assessment year, cannot be disturbed in the absence of any incriminating material. Issue 2: Deletion of Addition u/s 68 for Bogus LTCGThe AO had added Rs. 1,82,57,900/- to the assessee's income, treating the LTCG on the sale of shares of M/s Sawaca Business Machines Limited as bogus. The CIT(A) deleted this addition, and the Tribunal upheld this decision. The Tribunal noted that the assessee's name appeared in the shareholder list of M/s SBML, and there was no evidence of manipulation or involvement in providing accommodation entries. The Tribunal emphasized that the statement of the director of M/s SBML, taken during the survey, could not be used against the assessee without cross-examination. The Tribunal referenced the Delhi High Court's decision in Pr. CIT vs. Smt. Krishna Devi, which held that additions cannot be sustained without independent evidence showing an agreement to convert unaccounted money into fictitious LTCG. Issue 3: Deletion of Addition u/s 69C for Unexplained ExpenditureThe AO had added Rs. 3,65,160/- for unexplained expenditure related to the alleged bogus LTCG. The CIT(A) deleted this addition, and the Tribunal upheld this decision. The Tribunal found no evidence linking the assessee to any wrongdoing or manipulation of share prices. The Tribunal noted that the assessee held the shares for over ten years, which did not align with the typical pattern of penny stock manipulation. The Tribunal distinguished the case from the Calcutta High Court's decision in Swati Bajaj, noting significant factual differences, including the non-inclusion of M/s SBML in the list of penny stocks and the lack of any investigation report implicating M/s SBML in providing bogus LTCG. Conclusion:The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s order that no additions could be made in the absence of incriminating material found during the search, and confirming the deletion of additions made u/s 68 and u/s 69C.
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