2023 (11) TMI 1355 - AT - Income Tax

Addition u/s 68 - Denial of claim u/s 10(38) - disallowing the assessee s claim of exempted long term capital gains u/s 10(38) - bogus capital gain income so earned through rigging of shares - HELD THAT - Since the company namely M/s. Kappac Pharma Ltd. was a regular listed company at the recognized stock exchange of India the trading in shares of the said company was done like any other scrip and the events happened post facto to the transactions done by the assessee s mother or the assessee itself does not prove that the assessee has routed her unaccounted money through sale of shares of which long term capital gain arose. It is a fact that the price rigged up from 13.50 in 2009 to Rs. 680/- in F.Y. 2013-14. It was submitted by the assessee that in the stock market in the commercial terms it is well known that the prices of the scrip are flown with the winds and the sentiments irrespective of the fundamentals of the scripts. In that view of the matter price of the scrip though went substantially high after shares were purchased doesn t automatically mean that the transaction of the assessee in the said scrip is not genuine. The same cannot be therefore said to be doubtful mainly on surmises conjunctures and on presumption basis without any supportive documents in the hands of the Revenue. There was no role to play by the assessee in inflation of sale price as alleged or at all with the connivance with the brokers and the price at which shares were sold were neither genuine price. There was no material and/or evidence brought on record by the Revenue in order to establish that the company has indulged in providing accommodation entries and the prices were rigged and the mother of the assessee or the assessee was involved in rigging of the price of shares. The case of the Revenue has been dealt with on entirely unsubstantiated suspicions is wholly unjustified and bad in law. As scrip was subscribed by the mother of the assessee way back in F.Y. 2009-10 which was acquired by the assessee as gift from her. It appears that the holding period is more than 55 months in case of the assessee before us too which facts cannot be brushed aside and therefore the judgment passed by the Jurisdictional High Court in the case of PCIT vs. Jagat Pravinbhai Sarabhai Tax 2023 (1) TMI 44 - GUJARAT HIGH COURT seems to be applicable. We have carefully considered the judgment passed in case of M/s. Affluence Commodities Pvt. Ltd 2023 (4) TMI 1052 - ITAT AHMEDABAD wherein deletion of addition under Section 10(38) of the Act in respect of the LTCG out of the sale of scrip of M/s. Kappac Pharma Ltd. was upheld. As upholding the genuineness of the scrip of M/s. Kappac Pharma Ltd. we do not find any reason for addition made by the Revenue which is found to be solely on the basis of surmises and conjunctures and without any cogent document in the hands of the Revenue. The same is thus hereby deleted. Decided in favour of assessee.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment were:

- Whether the long-term capital gain (LTCG) claimed as exempt under Section 10(38) of the Income Tax Act by the assessee was genuine or a result of a pre-arranged scheme to evade taxes.

- Whether the principles of natural justice were violated by not providing the assessee with the opportunity to cross-examine the witnesses whose statements were relied upon by the Revenue.

- Whether the addition made under Section 68 of the Act, treating the LTCG as unexplained cash credit, was justified.

- Whether the procedural and evidential requirements were met by the Revenue in rejecting the assessee's claim of LTCG exemption.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Genuineness of LTCG under Section 10(38)

Relevant legal framework and precedents: Section 10(38) of the Income Tax Act provides exemption for income arising from the transfer of a long-term capital asset, being an equity share in a company, where the transaction is chargeable to securities transaction tax.

Court's interpretation and reasoning: The Tribunal considered whether the transactions were genuine or merely a device to convert unaccounted money into accounted money. The Tribunal noted that the assessee had provided substantial documentary evidence, including contract notes, demat account statements, and bank statements, to support her claim.

Key evidence and findings: The assessee received shares as a gift from her mother, who had originally acquired them in 2009-10. The shares were sold through a recognized stock exchange, and securities transaction tax was paid. The Tribunal found no evidence of manipulation by the assessee.

Application of law to facts: The Tribunal found that the conditions of Section 10(38) were met, as the shares were held for more than 12 months, sold through a recognized stock exchange, and securities transaction tax was paid.

Treatment of competing arguments: The Revenue's reliance on the investigation report and alleged manipulation was not supported by evidence directly implicating the assessee. The Tribunal emphasized the absence of any material evidence linking the assessee to the alleged scheme.

Conclusions: The Tribunal concluded that the LTCG claimed by the assessee was genuine and exempt under Section 10(38) of the Act.

Issue 2: Violation of Natural Justice

Relevant legal framework and precedents: The principles of natural justice require that a party must be given a fair opportunity to present their case, including the right to cross-examine witnesses whose statements are relied upon.

Court's interpretation and reasoning: The Tribunal noted that the assessee was not provided with the opportunity to cross-examine the witnesses whose statements were used against her, which constituted a violation of natural justice.

Key evidence and findings: The Tribunal highlighted that the assessee had repeatedly requested copies of the statements and the opportunity to cross-examine the witnesses, which were not granted by the Revenue.

Application of law to facts: The Tribunal found that the procedural lapses by the Revenue, in not allowing cross-examination, invalidated the reliance on those statements for making additions.

Treatment of competing arguments: The Tribunal rejected the Revenue's argument that the statements could be relied upon without cross-examination, citing precedents that emphasize the necessity of such procedural fairness.

Conclusions: The Tribunal held that the addition based on such statements was not sustainable due to the violation of natural justice.

Issue 3: Addition under Section 68

Relevant legal framework and precedents: Section 68 of the Income Tax Act deals with unexplained cash credits, allowing the Revenue to add such credits to the income of the taxpayer if the taxpayer fails to satisfactorily explain the nature and source.

Court's interpretation and reasoning: The Tribunal found that the assessee had provided sufficient evidence to explain the nature and source of the LTCG, thus discharging the onus under Section 68.

Key evidence and findings: The Tribunal noted that the sale of shares was documented through proper channels, with all transactions routed through banking channels and supported by documentary evidence.

Application of law to facts: The Tribunal concluded that the assessee had adequately explained the source of the LTCG, and the addition under Section 68 was not justified.

Treatment of competing arguments: The Tribunal dismissed the Revenue's contention that the transactions were bogus, emphasizing the lack of evidence to support such a claim.

Conclusions: The Tribunal directed the deletion of the addition made under Section 68.

3. SIGNIFICANT HOLDINGS

The Tribunal established the following core principles:

- The genuineness of transactions under Section 10(38) must be assessed based on the evidence provided by the taxpayer, and procedural fairness must be ensured by allowing cross-examination of witnesses whose statements are relied upon.

- Procedural lapses, such as denying the opportunity to cross-examine, can invalidate the reliance on such evidence for making additions.

- The burden of proof under Section 68 is discharged when the taxpayer provides adequate documentary evidence explaining the nature and source of the credits.

Final determinations on each issue: The Tribunal allowed the appeal, holding that the LTCG claimed was genuine and exempt under Section 10(38), the addition under Section 68 was not justified, and the principles of natural justice were violated.