2015 (3) TMI 141 - AT - Income Tax

Sale proceeds of shares - Income from Other Sources or Long term Capital gains - Held that - As per the CBDT circular, referred earlier, the date of purchase of shares should be recognized as the date on which the broker has issued the contract notes. Hence, we are unable to agree with the view taken by the AO that the date of purchase should be considered as the date on which the shares were credited to Demat account. The undisputed fact remains that the assessees have opened the Demat account only subsequent to the date of purchase of shares. Hence, in the absence of a Demat account, one could have purchased the shares in physical form only. Though the assessee has furnished the details of purchases of shares, we notice that the AO has rejected them without examining them. This approach of the assessing officer, in our view, was not appreciable at all. When the assessees are furnishing the necessary details available with them and if the AO feels that they are not reliable then he should have conducted further investigation and brought any other material on record to disprove the claims put forth by the assessees. However, the AO has taken adverse inferences against the assessees without causing further examination of the materials furnished by the assessees. Further, we are aware that there is no compulsion under any law that the shares should be held only in Demat account form only. As per the trade practice, in our knowledge, the broker is liable to deliver the shares which were purchased on behalf of the clients and in this connection only the broker contract notes are issued. We further notice that the submissions of the assessees that the shares were in the possession of the broker were also rejected without making further examination. There was no credible material with the department to disprove the claim of Long term Capital gains made by these assessees in their respective returns of income. Accordingly we set aside the orders of Ld CIT(A) passed in the respective hands of the assessees herein on this issue and direct the assessing officer to delete the assessment of gross sale receipts as income from other sources in all the years under consideration and accordingly direct the AO to accept the LTCG declared by these assessees in all the years under consideration. Since we have upheld the disclosure of LTCG, the question of assessing 5% of the Gross sale receipts as unaccounted income of assessees does not arise. Accordingly, we set aside the orders of ld CIT(A) on this issue and direct the assessing officer to delete this addition in the hands of all the assessees in all the assessment years under consideration. - Decided in favour of assessee.

Issues Involved:
1. Assessment of sale proceeds of shares as Income from Other Sources.
2. Rejection of Long Term Capital Gains claim.
3. Validity of assessments under Section 153A and 153C of the Income Tax Act.
4. Non-production of sub-broker and reliance on the statement of Shri Narendra R Shah.
5. Period of holding of shares for Long Term Capital Gains.
6. Assessment of 5% of gross sale receipts as unexplained income.

Detailed Analysis:

1. Assessment of Sale Proceeds of Shares as Income from Other Sources:
The assessees challenged the decision of the CIT(A) confirming the assessment of sale proceeds of shares as Income from Other Sources instead of Long Term Capital Gains. The AO based his decision on the investigation findings that the shares were purchased through bogus bills issued by entities controlled by Shri Narendra R Shah. The AO concluded that the transactions were engineered to generate artificial capital gains, thus treating the sale proceeds as income from other sources.

2. Rejection of Long Term Capital Gains Claim:
The assessees argued that they had purchased shares in physical form through a sub-broker, M/s Amizara Securities & Finance P Ltd (AFSL), and later dematerialized them. The AO, however, disbelieved the purchase documents and held that the shares were not genuinely purchased. The tax authorities relied heavily on the statement of Shri Narendra R Shah, who admitted to issuing bogus purchase bills for certain shares. The Tribunal noted that the statement was taken prior to the search and did not directly implicate the assessees. Furthermore, the assessees were not given an opportunity to cross-examine Shri Narendra R Shah, which weakened the evidentiary value of his statement.

3. Validity of Assessments under Section 153A and 153C of the Income Tax Act:
The Tribunal observed that no incriminating material was found during the search operations to doubt the veracity of the Long Term Capital Gains declared by the assessees. The AO's reliance on pre-search statements and lack of further investigation into the assessees' claims led the Tribunal to question the validity of the assessments. In cases where no warrant was executed in the name of the assessee or no incriminating material was found, the Tribunal held that the assessments under Sections 153A and 153C were not valid.

4. Non-Production of Sub-Broker and Reliance on the Statement of Shri Narendra R Shah:
The AO drew adverse inferences from the assessees' inability to produce the sub-broker, M/s AFSL. The Tribunal noted that the assessees had provided the last known address of the sub-broker and explained their inability to produce him. The AO did not take further steps to trace the sub-broker. The Tribunal found that the AO's reliance on Shri Narendra R Shah's statement without corroborating evidence and without allowing cross-examination was unjustified.

5. Period of Holding of Shares for Long Term Capital Gains:
The AO considered the date of credit in the Demat account as the date of purchase, which led to the rejection of the Long Term Capital Gains claim. The assessees contended that the period of holding should be computed from the date of the broker's contract note, as per CBDT instructions. The Tribunal agreed with the assessees, stating that the date of purchase should be based on the broker's note, not the date of Demat credit.

6. Assessment of 5% of Gross Sale Receipts as Unexplained Income:
The AO assessed 5% of the gross sale receipts as unexplained income, assuming that the assessees paid this amount to obtain accommodation bills. The Tribunal, having upheld the Long Term Capital Gains claim, found no basis for this addition and directed the AO to delete it.

Conclusion:
The Tribunal concluded that the tax authorities did not have credible material to disprove the Long Term Capital Gains claims. The orders of the CIT(A) were set aside, and the AO was directed to delete the assessments of gross sale receipts as income from other sources and to accept the Long Term Capital Gains declared by the assessees. The assessment of 5% of gross sale receipts as unexplained income was also deleted. All appeals filed by the assessees were allowed.

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