2008 (8) TMI 415 - AT - Income Tax

Unexplained cash credit u/s 68 - Genuineness of the purchase and sale of shares - HELD THAT - AO is not able to make out any material except for presumptions and assumptions to come to the conclusion that the purchase and sale of shares claimed by the assessee are not genuine. More so in the presence of letter communicated by the broker giving the details of shares purchased and sold on behalf of the assessee mentioning therein the commission charged by him as well as proceeds available with him for purchase of shares as well as realization of sale proceeds and crediting the same to the bank account of the assessee. Hence we find that the ld CIT(A) s order in deleting the additions made by the AO is not infirm in any way requiring any interference. The same is hereby upheld by dismissing the appeal of the Department as not meritorious. In the result the appeal of the Revenue is dismissed.

Summary

Issues:
1. Deletion of unexplained cash credit under section 68.
2. Deletion of unaccounted commission paid for long-term capital gains on shares.

Analysis:

Issue 1: Deletion of unexplained cash credit under section 68
The Revenue appealed against the deletion of Rs. 66,90,330 as unexplained cash credit under section 68. The Department argued that the assessee failed to provide evidence of purchase and sale of shares, leading to the addition of the amount as unexplained cash. The AO contended that the claim of long-term capital gains was incorrect as no supporting evidence was presented. The CIT(A) deleted the addition, stating that the burden was on the AO to prove the transactions were not genuine. The Authorized Representative of the assessee argued that evidence, including broker statements and share certificate numbers, proved the genuineness of the transactions. The Tribunal found that the AO did not conduct thorough investigations, such as obtaining the list of shareholders or contacting the stock exchange, to verify the transactions. The Tribunal upheld the CIT(A)'s decision, stating that the evidence provided by the assessee was sufficient to establish the genuineness of the transactions, dismissing the Revenue's appeal.

Issue 2: Deletion of unaccounted commission for long-term capital gains on shares
The Revenue also contested the deletion of Rs. 3,35,000 for unaccounted commission paid to the broker for long-term capital gains on shares. The Department argued that the entries were accommodation entries, justifying the addition. The Authorized Representative of the assessee presented evidence, including a broker's intimation mentioning the commission paid and details of share transactions, to support the genuineness of the commission payment. The Tribunal found that the evidence provided by the assessee, such as the broker's communication and account statements, established the legitimacy of the commission payment. Therefore, the Tribunal upheld the CIT(A)'s decision to delete the addition, dismissing the Revenue's appeal.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to delete both additions related to unexplained cash credit and unaccounted commission for long-term capital gains on shares.