2020 (2) TMI 1344 - AT - Income Tax

Addition u/s 68 - bogus penny stock transaction and earned bogus long term capital gain - HELD THAT - As neither statement was supplying to the assessee nor cross examination was allowed by the ld. A.O. Therefore, in our considered opinion, assessee has discharged his onus and no addition can be sustained in the hands of the assessee.

Summary

Issues:
1. Challenge to order passed under section 143(3) of the Act
2. Deletion of addition made under section 68 of the Act
3. Rejection of claim of exempt income of Long Term Capital Gain u/s Sec 10(38) of the Act
4. Appeal for the determination of the amount of interest under section 234B of the Act

Analysis:
1. The appeal challenged the order passed under section 143(3) of the Act, arguing for its quashing and deletion of the addition made therein. The contention was that the learned AO should accept the returned income. The Tribunal considered the facts presented, where the assessee was engaged in trading shares and earning income from various sources. The investigating wing raised concerns about long term capital gain transactions, leading to the assessing officer issuing a notice alleging bogus transactions. Despite the assessee's submissions of relevant documents, the AO made an addition. However, the Tribunal, after reviewing the evidence, held that the assessee had provided sufficient details, including bank statements and demat account information, to support the legitimacy of the transactions. Consequently, the Tribunal allowed the appeal, emphasizing that the onus was discharged by the assessee.

2. The next issue involved the deletion of the addition made under section 68 of the Act. The CIT(A) had upheld the addition, stating that the companies involved were bogus. However, the Tribunal, upon examining the records and submissions, found that the assessee had purchased shares through legitimate channels and provided necessary documentation. The Tribunal concluded that the long term capital gains were genuine, and the addition was unwarranted. Therefore, the appeal was allowed in favor of the assessee.

3. The third issue pertained to the rejection of the claim of exempt income of Long Term Capital Gain under section 10(38) of the Act. The Tribunal noted that the assessee had fulfilled the requirements by presenting relevant details and transactions through recognized brokers. The Tribunal held that the claim of long term capital gain was valid and directed the AO to allow the said claim while computing the total income.

4. Lastly, the appeal sought a determination of the interest amount under section 234B of the Act. The Tribunal observed that the AO had not provided an opportunity for cross-examination or supplied relevant statements to the assessee. Citing precedent, the Tribunal emphasized the importance of granting such opportunities. As a result, the Tribunal held that the assessee had discharged the onus, and no addition could be sustained. Consequently, the appeal was allowed in favor of the assessee.

In conclusion, the Tribunal allowed the appeal filed by the Assessee, emphasizing the importance of providing opportunities for cross-examination and ensuring that the onus of proof is met in such cases.