2024 (2) TMI 1337 - AT - Income Tax

Bogus LTCG - unexplained cash credit u/s 68 - accommodation entry of bogus exempted long term capital gain - onus of proof - scrip named Lifeline Drugs Pharma Ltd was having no financial strength as well as no substantial business activities in the company during the period of purchase of shares to period of sales by the assessee - HELD THAT - Hon ble Jurisdictional High Court of Gujarat in the case of Jagat Pravinbhai Sarabhai, 2023 (1) TMI 44 - GUJARAT HIGH COURT held that where AO noted that assessee had indulged in scrip of shell company and had claimed long term capital gain on sale of shares and made addition u/s 68 holding that entire transaction was bogus and in the nature of penny stock, however, since genuineness of investment in shares by assessee was substantiated by him by producing copy of transaction statement for period from 1-6- 2001 to 1-10-2010 and shares were retained for more than ten years and were sold after such long time, hence investment was not bogus therefore it cannot be treated that investment was made in penny stock. It is well settled position of law that, an assessee receiving a credit has to testify its case through the 'triple marker test' of identity, Creditworthiness and Genuineness of Transactions. It is imperative, therefore, that the case be analysed in light of these three well- settled canons of adjudication, as embedded in the statute, as also promulgated by various judicial pronouncements. The onus of proof requires the assessee to furnish the proof of identity, creditworthiness and genuineness of the transaction. We note that in assessee s case under consideration, the assessee has submitted the copy of Contract note. The said contract notes show the quantity, rate, time, stamp, value, taxes and charges viz. STT, brokerage, SEBI and exchange turnover charges, service tax and stamp duty incurred on all the transactions done on stock exchange platform. These documents have been accepted by the assessing officer. The transactions are done through proper banking channel and the sale is done at prevailing price quoted on the Stock Exchange. Hence, by submitting these documents, the assessee has proved identity, creditworthiness and genuineness of the transactions. AO having failed to bring on record any material to prove that the transaction of the assessee was a collusive transaction could not have rejected the evidences submitted by the assessee. In fact, in this case nothing has been found against the assessee with aid of any direct evidences or material against the assessee, under these circumstances nothing can be implicated against the assessee. One is bound to consider and rely on the evidence produced by the assessee in support of its claim and base decision on such evidence and not on suspicion or preponderance of probabilities, no material was brought on record by the AO to controvert the evidence furnished by the assessee. The evidence filed by the assessee is accepted and the claim that the income in question is a bona fide Long Term Capital Gain arising from the sale of shares is allowed and hence exempt from income tax. Based on the above factual position, we deleted the addition - Decided in favour of assessee. Addition u/s 69C on account of commission paid @ 3% of bogus long term capital gain - Since, we have deleted the alleged addition u/s 68 hence addition made by Assessing Officer does not have leg to stand, therefore it is hereby deleted, and hence ground No.3 raised by the assessee is allowed.

Issues Involved:
1. Confirmation of additions made by the Assessing Officer.
2. Denial of claim of long-term capital gain and treatment as unexplained cash credit under Section 68.
3. Addition on account of unexplained investment under Section 69C.

Summary:

Issue 1: Confirmation of Additions
The assessee appealed against the order of the National Faceless Appeal Centre (NFAC), which confirmed the additions made by the Assessing Officer (AO) under Section 143(3) of the Income Tax Act, 1961, for the assessment year 2015-16.

Issue 2: Denial of Long-Term Capital Gain and Treatment as Unexplained Cash Credit
The AO denied the assessee's claim of long-term capital gain (LTCG) of Rs. 5,97,489 from the sale of shares of Lifeline Drugs & Pharma Ltd., treating it as unexplained cash credit under Section 68. The AO based this on the Kolkata Investigation Report indicating that the scrip was a penny stock with no substantial business activities, and the share price was artificially inflated. The NFAC upheld this view, noting that the financial parameters of the company did not justify the price rise, and the assessee's transactions were not genuine.

Issue 3: Addition on Account of Unexplained Investment under Section 69C
The AO also added Rs. 17,925 as unexplained investment under Section 69C, presuming it to be a commission paid for arranging the LTCG. The NFAC confirmed this addition, stating that commission payments are inherent in such transactions.

Assessee's Arguments:
The assessee's counsel argued that the transactions were genuine, supported by bank statements, contract notes, and other documents. He cited several judicial precedents to support the claim and contended that the AO failed to identify any mistakes in the submitted documents. He also argued that the AO's presumption of commission payment was baseless, as no evidence of cash movement was provided.

Revenue's Arguments:
The Revenue defended the NFAC's order, arguing that the facts of the assessee's case were different from the cited precedents. They maintained that the addition under Section 69C was justified due to the inherent nature of commission payments in such transactions.

Tribunal's Findings:
The Tribunal examined the documents submitted by the assessee and found that the transactions were conducted through proper banking channels and were genuine. Citing the Gujarat High Court's decision in Jagat Pravinbhai Sarabhai, the Tribunal held that the AO failed to provide any material evidence to prove that the transactions were collusive. Therefore, the additions of Rs. 5,97,489 and Rs. 17,925 were deleted.

Conclusion:
The appeal filed by the assessee was allowed, and the additions made by the AO under Sections 68 and 69C were deleted. The Tribunal emphasized the importance of relying on evidence rather than suspicion or probabilities. The order was pronounced on 27/02/2024.

← Previous Next →