2012 (8) TMI 398 - HC - Income Tax

Long term Capital Gain - sale of shares - share broker - Revenue condemned the share transaction of the assessee and held them to sham merely because some share brokers were found to be indulged in some wrong as per report of inquiry held to detect violation of SEBI ( Prohibition of Fraudulent and Unfair Trade Practices Relating to Security Market) Regulation, 2003 - Held that - It is clear that after getting that enquiry report, the SEBI prima facie found involvement of some of the share brokers in unfair trade practices. Fact of tinted broker may be relevant for suspicion but it alone necessarily does lead to conclusion of all transaction of that broker as tinted. In such circumstances, further enquiry is needed and that is for individual case. Such further enquiry was not conducted in that case. Just on the mere ground of share transaction with such broker does not lead to the belief that bonafide transactions are sham even if their genuineness and bonafides are established. it is also undisputed that purchase of the shares were shown by the assessees in their Balance Sheet of the last five years and genuineness of the Books of Accounts was never questioned - Decided in favor of assessee.

Summary

Issues:
1. Dismissal of appeals by I.T.A.T and confirmation of orders by C.I.T. (Appeals)
2. Allegations of fraudulent share transactions based on SEBI report
3. Assessment of individual cases by Assessing Officer and C.I.T. (Appeals)
4. Argument regarding common order by I.T.A.T and separate consideration of appeals
5. Burden of proof on Revenue and assessee in tax matters
6. Consideration of genuineness of share transactions and long-term capital gain benefits

Issue 1 - Dismissal of Appeals:
The Tax Appeals arose from an I.T.A.T order dismissing the Revenue's appeals and upholding the separate orders passed by the Commissioner of Income Tax (CIT) (Appeals). The CIT (Appeals) had set aside the Assessing Officer's orders and affirmed the assessees' long-term capital gain declarations.

Issue 2 - Allegations of Fraudulent Transactions:
The Assessing Officer raised concerns about share transactions following a SEBI report indicating potential violations by brokers. The transactions under scrutiny involved significant fluctuations in share prices, leading to suspicions of sham dealings. The Assessing Officer linked these transactions to identified brokers and companies, alleging non-genuineness.

Issue 3 - Assessment of Individual Cases:
Both the Assessing Officer and CIT (Appeals) examined individual cases separately, focusing on share purchase details, possession, and sale transactions. While the CIT (Appeals) found supporting evidence for some transactions, the Assessing Officer declared transactions as sham based on similarities with flagged cases without conducting further enquiries.

Issue 4 - Common Order by I.T.A.T:
The appellant argued that the I.T.A.T erred in issuing a common order for all appeals instead of considering each case separately. The Revenue contended that each assessee's transactions were distinct, potentially necessitating separate considerations or remands.

Issue 5 - Burden of Proof:
The appellant emphasized the Revenue's duty to prove taxable income and the assessee's obligation to demonstrate exemption eligibility, citing a Rajasthan High Court judgment. The appellant highlighted the need to investigate motives behind transactions, especially in cases of significant share price fluctuations.

Issue 6 - Genuineness of Transactions:
The CIT (Appeals) criticized the Assessing Officer for condemning transactions based on presumptions without concrete evidence. The court emphasized the importance of verifying share possession, purchase details, and bonafide transactions, especially when brokers were implicated in unfair practices.

In conclusion, the court dismissed the appeals, emphasizing the need for thorough investigations and individual assessments to determine the genuineness of share transactions and entitlement to long-term capital gain benefits.