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2023 (8) TMI 1611 - AT - Income TaxAddition u/s 68 - Bogus LTCG - unexplained cash credit - HELD THAT - Merely because there was allegation and investigation was done by SEBI against the company and assessee cannot be said to have enter into ingenuine transactions. So far as assessee is concerned she has no control over the activities of the brokers or price manipulation. Assessee has furnished complete evidence including contract note of shares demat details detail of bonus shares. However no adverse evidence was brought against such evidence. Nor the AO made adverse comment on such evidences. SEBI made a through inquiry against Mishka Finance Trading Ltd. and vide order that no adverse materials were found in the investigation report with respect to prima facie violation. Assessee made sale of shares through BSE and paid security transaction tax and there is no allegation against the share broker through whom assessee has made sales that they were indulging any price manipulation. Therefore no justification in treating the LTCG as unexplained cash credit in absence of any cogent evidence. Addition of undisclosed income u/s 68 is deleted. Considering as have accepted the LTCG by deleting the addition made under section 68 therefore the addition of alleged commission payment is also deleted. This ground of assessee is allowed. 1. ISSUES PRESENTED and CONSIDERED The core legal questions addressed in this judgment are:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Addition of Sale Proceeds as Undisclosed Income Relevant Legal Framework and Precedents: The relevant legal framework involves Section 68 of the Income Tax Act, which pertains to unexplained cash credits. The precedents cited include decisions from various High Courts, including the Gujarat High Court in the case of Himani M. Vakil and the Supreme Court in the case of Parasben Kasturchand Kochar. Court's Interpretation and Reasoning: The court interpreted that the mere existence of an investigation or allegations against a company does not automatically render transactions with that company as ingenuine. The court emphasized the need for concrete evidence to support claims of bogus transactions. Key Evidence and Findings: The assessee provided substantial evidence, including contract notes, demat account details, and bank statements, to demonstrate the genuineness of the transactions. The court noted the lack of adverse findings against these evidences by the Assessing Officer. Application of Law to Facts: The court applied Section 68 by examining the evidence provided by the assessee and found that the transactions were conducted through recognized stock exchanges, with all necessary taxes paid, thereby establishing the genuineness of the transactions. Treatment of Competing Arguments: The Revenue argued that the transactions were part of a scheme involving penny stocks. However, the court found that the Revenue did not provide sufficient evidence to substantiate these claims, especially in light of the SEBI investigation which found no adverse findings against the assessee. Conclusions: The court concluded that the addition of the sale proceeds as undisclosed income under Section 68 was not justified due to the lack of evidence supporting the claim of ingenuine transactions. Issue 2: Addition of Commission Payment as Unexplained Expenditure Relevant Legal Framework and Precedents: Section 69 of the Income Tax Act deals with unexplained investments. The court referenced similar cases where the burden of proof was on the Revenue to demonstrate the unexplained nature of the expenditure. Court's Interpretation and Reasoning: The court reasoned that assumptions made by the Assessing Officer regarding commission payments were not supported by evidence. The court highlighted the lack of corroborative evidence to justify the addition under Section 69. Key Evidence and Findings: The assessee provided evidence of transactions through banking channels, which were not refuted by any adverse findings. The court observed that the Assessing Officer's assumptions were not based on any concrete evidence. Application of Law to Facts: The court applied Section 69 by evaluating the evidence presented and found no basis for the addition of commission payments as unexplained expenditure. Treatment of Competing Arguments: The Revenue's argument was based on assumptions rather than evidence. The court found that the Revenue failed to meet the burden of proof required to justify the addition under Section 69. Conclusions: The court concluded that the addition of commission payments as unexplained expenditure under Section 69 was not justified due to the lack of evidence. 3. SIGNIFICANT HOLDINGS Preserve Verbatim Quotes of Crucial Legal Reasoning: "Merely because there was an allegation and investigation was done by SEBI against the company, the assessee cannot be said to have entered into ingenuine transactions." Core Principles Established:
Final Determinations on Each Issue:
In conclusion, the appeal of the assessee was allowed, and the court found no justification for the additions made by the Assessing Officer. The judgment underscores the importance of evidence-based assessments in tax proceedings.
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