2022 (7) TMI 1563 - AT - Income Tax

Addition u/s 68 - denial of long term capital gain claimed exempt by appellant u/s. 10(38) - HELD THAT - Admittedly, transactions are substantiated with the documentary evidences by the assessee that these were done through proper banking channel, shares purchased were credited in the Demat account of the assessee, shares sold through an authorised broker details of which are shared with the AO by the assessee. Payment of sale of shares was received by the assessee in its bank account and STT was duly charged. AO and the CIT(A) are guided by the report of the investigation wing but no part of the report of the investigation wing could be brought out which observe something against the assessee under reference. A vicious circle showing the assessee s collusion with the persons investigated such as stockbrokers, entry operators or any other persons, could not be extracted by the AO and thus no wrong involvement of the assessee in such sham transactions could be established by the department. The contentions of department are not acceptable, which are based on general practices of the entry operators, their modus operandi, report of the investigation wing without having any specific observation on the transactions by the assessee. Such observation of the revenue authorities are based on presumptions having no specific evidence against the assesee, thus is not sustainable and deserves to be set aside. Accordingly, we set aside the orders of authorities below and direct the AO to delete the addition. Thus, we allow the appeal of the assessee.

Issues Involved:

1. Legitimacy of the addition of Rs. 3,67,940/- as unexplained income under Section 68 of the Income Tax Act.
2. Validity of the rejection of documentary evidence provided by the assessee.
3. Application of principles of natural justice and due process in the assessment proceedings.
4. Reliance on investigation reports without specific evidence against the assessee.

Detailed Analysis:

1. Legitimacy of the Addition under Section 68:

The primary issue revolves around the addition of Rs. 3,67,940/- to the assessee's income by the Assessing Officer (AO), which was confirmed by the Commissioner of Income Tax (Appeals) [CIT(A)]. The AO treated this amount as unaccounted and unexplained, invoking Section 68 of the Income Tax Act. This addition was based on the premise that the transaction of long-term capital gain (LTCG) was a sham, allegedly involving manipulated shares to generate bogus LTCG. The assessee contested this addition, arguing that the transaction was genuine, supported by documentary evidence, including purchase and sale records, demat account statements, and bank transactions.

2. Validity of the Rejection of Documentary Evidence:

The assessee provided substantial documentary evidence to substantiate the genuineness of the transactions, including the purchase of shares through a registered broker, holding of shares in a demat account, and sale through an online transaction with payment of Securities Transaction Tax (STT). The AO and CIT(A) rejected these evidences, primarily relying on general observations and investigation reports without specific evidence against the assessee. The Tribunal found that the AO's conclusions were based on presumptions and lacked concrete evidence to prove the transactions were bogus. The Tribunal emphasized that the transactions were conducted through proper banking channels and were duly recorded in the assessee's financial statements.

3. Application of Principles of Natural Justice:

The Tribunal noted a violation of natural justice principles, as the AO did not provide the assessee with an opportunity to cross-examine witnesses or access the investigation reports that were used against him. The Tribunal highlighted that the AO's reliance on these reports without confronting the assessee with their contents was impermissible. The Tribunal cited several case laws underscoring the necessity of cross-examination as part of natural justice, emphasizing that decisions must be based on evidence rather than conjectures or assumptions.

4. Reliance on Investigation Reports:

The AO and CIT(A) heavily relied on investigation reports from the SEBI and the Income Tax Department's Investigation Wing, which allegedly indicated manipulation in share prices. However, the Tribunal observed that these reports did not contain any specific findings against the assessee. The Tribunal criticized the revenue authorities for adopting a "borrowed conclusion" approach, using these reports without conducting an independent inquiry into the assessee's transactions. The Tribunal reiterated that suspicion, no matter how strong, cannot replace concrete evidence.

Conclusion:

The Tribunal concluded that the assessee's transactions were genuine and that the addition made under Section 68 was unsustainable. The Tribunal set aside the orders of the lower authorities, directing the AO to delete the addition. The appeal of the assessee was allowed, emphasizing the need for assessments to be based on factual evidence rather than presumptions or generalized observations. The judgment reinforces the principles of natural justice and due process in tax assessments, highlighting the importance of providing taxpayers with a fair opportunity to present their case and contest evidence used against them.

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