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2024 (10) TMI 74 - AT - Income TaxValidity of reassessment proceedings - Bogus LTCG/Sham transactions - reasons to believe v/s suspect - as argued notice u/s 148A is not valid for the reason that the AO has re-opened the assessment without any material connecting the assessee to the alleged sham transaction and that the assessee was not provided with the documents relied on by the AO for the purpose of reopening the assessment - HELD THAT - AO has not brought anything on record to implicate the assessee that he in any manner is involved in the sham transaction. It is also relevant to mention here that the assessee is a regular investor which is substantiated by the significant investments made by the assessee in mutual funds etc. (refer statement of investments submitted). Considering the facts of the present case and the decision of Karan Maheshwari 2024 (3) TMI 953 - BOMBAY HIGH COURT we hold that the notice issued by the AO under section 148A is not sustainable and accordingly the addition / disallowance made in the reopened proceedings is liable to be quashed. Assessee appeal allowed.
Issues Involved:
1. Limitation under Section 153 r.w.s. 144C of the Income Tax Act, 1961. 2. Validity of reopening the assessment under Section 148 of the Income Tax Act, 1961. 3. Disallowance of dividend income and short-term capital loss (STCL). 4. Initiation of penalty proceedings under Section 271(1)(c) of the Income Tax Act, 1961. Issue-Wise Detailed Analysis: 1. Limitation under Section 153 r.w.s. 144C of the Income Tax Act, 1961: - The appellant initially raised the issue that the assessment order dated 01/03/2024 was barred by limitation under Section 153 r.w.s. 144C. However, during the course of the hearing, this ground was not pressed by the appellant and was therefore dismissed as not pressed. 2. Validity of Reopening the Assessment under Section 148: - The appellant contended that the reopening of the assessment under Section 148 was invalid as it was based on information not provided to the appellant, violating the principles of natural justice. The appellant argued that the AO and DRP erred in reopening the assessment without providing the information and material relied upon, including statements recorded during a survey action. - The Tribunal noted that the AO reopened the case based on information from a survey at JM Financial Asset Management Ltd., alleging that the appellant benefited from fictitious losses and dividend income from sham transactions. - The Tribunal referred to the Bombay High Court's decision in the case of Karan Maheshwari Vs. ACIT, which quashed a similar notice under Section 148A, emphasizing that the AO must provide relevant information to the assessee and establish a direct nexus between the assessee and the alleged sham transactions. - The Tribunal found that the AO did not provide the appellant with the necessary documents and failed to establish the appellant's involvement in the sham transactions. Consequently, the notice under Section 148A was deemed unsustainable, and the addition/disallowance made in the reopened proceedings was quashed. 3. Disallowance of Dividend Income and Short-Term Capital Loss (STCL): - The AO disallowed Rs. 5,47,81,701/- being dividend income and Rs. 5,73,71,962/- being STCL, alleging that these were results of sham transactions. - The appellant argued that the dividend income and STCL were genuine and that any manipulation by JM Financial Asset Management Ltd. should not penalize the appellant. - The Tribunal noted that the AO did not bring anything on record to show the appellant's involvement in the alleged sham transactions and relied on the Bombay High Court's decision, which held that mere receipt of dividend and booking of STCL by an investor does not imply participation in sham transactions. - Given the lack of evidence against the appellant and the High Court's ruling, the Tribunal quashed the disallowance of dividend income and STCL. 4. Initiation of Penalty Proceedings under Section 271(1)(c): - The AO initiated penalty proceedings under Section 271(1)(c) for the alleged concealment of income and furnishing inaccurate particulars. - The Tribunal found that since the primary addition/disallowance was quashed, the penalty proceedings became academic and did not require separate adjudication. Conclusion: - The appeal was partly allowed, with the Tribunal quashing the notice under Section 148A and the subsequent addition/disallowance of dividend income and STCL. The issue of penalty proceedings was deemed premature and not adjudicated separately. The Tribunal's decision was pronounced in the open court on 27-08-2024.
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