2023 (8) TMI 136 - AT - Income Tax

Addition u/s 68 - bogus LTCG on shares - HELD THAT - Assessee has furnished the financials, details of broker, affidavit and the transactions status and MCA website details of the company. AO has doubted the purchase and sale of shares and observed that the price rigging is not commensurate with the financials of the assessee company. Assessee has substantiated with all details and information and the revenue could not make out a case that there is unaccounted money transactions took place in the hands of the assessee and the AO has relied on the investigation report of income tax department and treated the long term capital gains on sale of shares as not genuine. A.O. has not made any enquiry or independent investigation and relied on the statement of the parties and the assessee s name is not included in the list of investigation report. The fact remains that the assessee has submitted the requisite details in respect of purchase and sale of shares and were not disproved. The transaction of purchase and sale of shares is through banking channel. Accordingly, addition cannot be sustained and set aside the order of the CIT(A) and direct the assessing officer to delete the additions and allow the grounds of appeal in favour of the assessee.

Summary

Issues Involved:

1. Addition under Section 68 of the Income Tax Act regarding Long Term Capital Gain (LTCG) on sale of shares.
2. Alleged undisclosed commission related to the sale of shares.

Issue-wise Detailed Analysis:

1. Addition under Section 68 of the Income Tax Act regarding Long Term Capital Gain (LTCG) on sale of shares:

The assessee, an individual deriving income from capital gains and other sources, filed a return for AY 2014-15, claiming an exemption under Section 10(38) for LTCG on the sale of shares of KDJ Holidayscapes & Resorts Ltd. The case was selected for scrutiny due to the LTCG claim. The Assessing Officer (AO) issued notices under Sections 143(2) and 142(1) and, upon review, doubted the genuineness of the transactions based on an investigation wing report from Kolkata and statements recorded during search operations. The AO concluded that the transactions were not genuine, leading to an addition under Section 68 for unexplained cash credit and estimated commission, totaling Rs. 4,78,44,571/-.

The CIT(A) upheld the AO's decision, dismissing the assessee's appeal. The assessee then appealed to the ITAT, arguing that the transactions were genuine, supported by various documentary evidences, and that the AO's additions were based on surmises and conjectures without independent inquiry.

The ITAT reviewed the submissions and evidence, including purchase and sale contract notes, bank statements, demat account details, and the company's financials. The Tribunal found that the assessee had substantiated the transactions, and the AO had not conducted any independent investigation. The Tribunal noted that similar cases had been decided in favor of the assessee, citing decisions from higher courts and tribunals that emphasized the need for cogent material evidence to support claims of bogus transactions. The Tribunal concluded that the AO's reliance on third-party statements without providing an opportunity for cross-examination and the absence of independent verification rendered the additions unsustainable. The ITAT directed the deletion of the addition under Section 68.

2. Alleged undisclosed commission related to the sale of shares:

The AO also added an estimated commission of Rs. 37,07,005/- related to the sale of shares, based on the assumption that such transactions typically involve undisclosed commissions. The CIT(A) upheld this addition, but the assessee argued that there was no evidence of any commission paid and that the addition was based purely on assumptions.

The ITAT found that the AO had not provided any concrete evidence to support the claim of undisclosed commission. The Tribunal emphasized that additions based on presumptions without any factual basis could not be sustained. The ITAT, therefore, directed the deletion of the addition related to the alleged undisclosed commission.

Conclusion:

The ITAT allowed the assessee's appeal, setting aside the CIT(A)'s order and directing the AO to delete the additions under Section 68 for LTCG and the alleged undisclosed commission. The Tribunal's decision was based on the assessee's substantiated evidence, the lack of independent investigation by the AO, and the reliance on judicial precedents that required concrete evidence to support claims of bogus transactions.