2015 (4) TMI 257 - AT - Income Tax

Unexplained cash credit u/s.68 - CIT(A) deleted the addition accepting the assessee s explanation of the same as representing the sale proceeds of equity shares - Held that - CIT(A) picks up one incident or aspect of the transaction at a time to note of it being backed by documentary evidence/s and, therefore, genuine. The approach is fallacious. Firstly, documentary evidences, in the face of unusual events, as prevailing in the instant case, and without any corroborative or circumstantial evidence/s, cannot be regarded as conclusive. Two, the preponderance of probabilities only denotes the simultaneous existence of several facts , each probable in itself, albeit low, so as to cast a serious doubt on the truth of the reported facts , which together make up for a bizarre statement, leading to the inference of collusiveness or a device set up to conceal the truth, i.e., in the absence of credible and independent evidences. For a scrip to trade at nearly 50 times its face value, only a few months after its issue, only implies, if not price manipulation, trail blazing performance and/or great business prospects (with of course proven management record, so as to be able to translate that into reality), while even as much as the company s business or industry or future program (all of which would be in public domain), is conspicuous by its absence, i.e., even years after the transaction/s. The company is, by all counts, a paper company, and its share transactions, managed. We, accordingly, reversing the findings of the first appellate authority, confirm the assessment of the impugned sum u/s.68 of the Act. - Decided against assessee.

Issues Involved:
1. Maintainability of addition of unexplained cash credit under Section 68 of the Income Tax Act, 1961.
2. Genuineness of the transaction involving the sale proceeds of equity shares.

Issue-wise Detailed Analysis:

1. Maintainability of Addition of Unexplained Cash Credit under Section 68 of the Income Tax Act, 1961:

The primary issue in this appeal is the maintainability of the addition of Rs. 12,14,932/- as unexplained cash credit under Section 68 of the Income Tax Act, 1961. The Revenue challenged the deletion of this addition by the Commissioner of Income Tax (Appeals) [CIT(A)], who had accepted the assessee's explanation that the amount represented the sale proceeds of equity shares.

The Assessing Officer (AO) had disallowed the assessee's claim based on several factors. The shares were purchased in cash from a broker, Suresh Kumar Somani, without being registered on the stock exchange, making the transaction unverifiable. The AO noted that the shares were from a nondescript company with no significant assets or earnings, and their price had inexplicably risen from Rs. 21.70 per share to as much as Rs. 489 within a year. The AO relied on various judicial decisions to assess the impugned credit as unexplained income under Section 68.

2. Genuineness of the Transaction Involving the Sale Proceeds of Equity Shares:

The CIT(A) had allowed the assessee's claim based on the documentary evidence provided, including a contract note from a registered broker and the fact that the shares were dematerialized in due course. The CIT(A) also noted that the sale proceeds were received via account payee cheques and that Security Transaction Tax (STT) was paid, fulfilling all conditions for exemption under Section 10(38).

However, the Tribunal found that the primary facts were not in dispute, but the inferences drawn by the AO and CIT(A) differed. The Tribunal emphasized that the genuineness of the transaction could be tested on the principle of preponderance of human probabilities, as established by the Supreme Court in Sumati Dayal vs. CIT. The Tribunal noted several discrepancies and unanswered questions regarding the transaction, such as the reason for purchasing shares in cash, the lack of contemporaneous evidence for the cash source, and the unusual rise in the share price.

The Tribunal observed that the shares were purchased off-market and paid for in cash, which raised doubts about the transaction's genuineness. The Tribunal also noted that the shares were dematerialized only days before their sale, coinciding with the price rise, suggesting possible orchestration. The Tribunal found the explanations provided by the assessee unsatisfactory and noted that the burden of proof under Section 68 lies with the assessee.

The Tribunal concluded that the CIT(A) had erred in dismissing the AO's observations as mere suspicions. The Tribunal found the AO's findings valid and relevant, noting that the assessee failed to provide satisfactory explanations for the various discrepancies. The Tribunal reversed the CIT(A)'s decision and confirmed the addition of Rs. 12,14,932/- as unexplained income under Section 68.

Conclusion:

The Tribunal allowed the Revenue's appeal, confirming the addition of Rs. 12,14,932/- as unexplained income under Section 68 of the Income Tax Act, 1961, due to the failure of the assessee to satisfactorily prove the genuineness of the transaction involving the sale proceeds of equity shares.

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