2015 (5) TMI 785 - AT - Income Tax

Undisclosed Short Term Capital Gain from sale of shares - Held that - The arguments of the learned Authorized Representative that the appellant had not sold the property cannot be accepted since it is judicially well known that in the case of a company the entire property held in the name of Company can be transferred through the mode of transfer of shares as held in Sanjay Parwal Versus ACIT, Circle, New Delhi 2015 (5) TMI 723 - ITAT DELHI thus we confirmed the basis of addition. However, there was no evidence on record to show that the appellant was paid her share of on money by her husband. Moreover, the appellant in her statement before the Investigating Wing had categorically stated that the entire control over her financial affair vested with her husband i.e. Mr. Sanjay Parwal. In view of the above statement, we confirmed the addition attributable to the appellant s share in the hands of her husband Mr. Sanjay parwal.money attributable to shareholding of Mrs. Ritu Parwal is taxable in the hands of the appellant. Mrs. Ritu Parwal was holding 58,000/- shares. The share of on money comes to ₹ 1,71,10,000/-. Therefore, the total addition in the hands of the appellant comes to ₹ 3,48,10,000/-. Hence, we confirm the addition in the hands of the appellant only to the extent of ₹ 3,48,10,000/-. Hence, there is no warrant for a separate addition in hands of appellant. - Decided partly in favour of assesse.

Summary

Issues Involved:
1. Legitimacy of addition of Rs. 4,24,65,150 on account of alleged undisclosed Short Term Capital Gain from sale of shares.
2. Validity of documents and statements used as evidence.
3. Principles of natural justice and right to cross-examine.
4. Ownership and competence to sell the property.
5. Lifting the corporate veil.
6. Legality and evidential value of the Agreement to Sell.
7. Variation in selling prices of shares.

Detailed Analysis:

1. Legitimacy of Addition of Rs. 4,24,65,150:
The appellant contested the addition of Rs. 4,24,65,150 as Short Term Capital Gain from the sale of shares of M/s Smriti Buildcom Pvt. Ltd. The Assessing Officer (AO) had recalculated the capital gains based on documents found during a search operation at HBN Group, which indicated a total consideration of Rs. 12.95 crores for the sale of shares. The AO concluded that the appellant received Rs. 4,24,65,150 as undisclosed capital gain after deducting the cost of shares.

2. Validity of Documents and Statements Used as Evidence:
The appellant argued that the addition was based on a document not executed or signed by her and statements from employees of another person without giving her the opportunity to rebut or cross-examine them. The AO relied on statements from Mr. Virender Nehra and Mr. Anil Mahajan, which confirmed the cash payments made to the appellant and her husband.

3. Principles of Natural Justice and Right to Cross-Examine:
The appellant claimed a violation of natural justice as she was not given the opportunity to cross-examine the witnesses whose statements were used against her. The Investigating Wing had confronted her with the statements, but she denied knowledge of her financial affairs, attributing control to her husband.

4. Ownership and Competence to Sell the Property:
The appellant argued that she was not competent to sell the property as it was owned by M/s Smriti Buildcom Pvt. Ltd., where she was merely a shareholder. The AO noted that the shares were transferred to HBN Group, indicating a sale of the property through share transfer.

5. Lifting the Corporate Veil:
The appellant contended that the AO unjustifiably lifted the corporate veil without any legal or factual basis. The AO treated the transaction as a direct sale of property by the appellant, ignoring the separate legal entity of the company.

6. Legality and Evidential Value of the Agreement to Sell:
The appellant challenged the validity of the Agreement to Sell, stating it was not registered as required by law and was based on photocopies, not originals. The AO found the agreement indicated a sale of property for Rs. 12.95 crores, with payments partially made in cash.

7. Variation in Selling Prices of Shares:
The appellant pointed out that there was no significant variation in the selling prices of the same shares sold to different parties within close proximity, questioning the basis for the AO's valuation.

Judgment:
The Tribunal considered whether the CIT(A) was justified in confirming the addition. It noted the lack of evidence showing the appellant received her share of the on-money from her husband. The appellant's statement indicated her husband controlled her financial affairs. The Tribunal apportioned the on-money based on shareholding, attributing Rs. 1,77,00,000 to the appellant and Rs. 1,71,10,000 to her husband's shareholding, totaling Rs. 3,48,10,000. The Tribunal confirmed the addition to this extent and allowed the appeal partly.

Conclusion:
The Tribunal concluded that the addition in the appellant's hands should be limited to Rs. 3,48,10,000, corresponding to her and her husband's shareholding in the company. The AO was given liberty to proceed against other shareholders as per the law. The appeal was partly allowed.