2018 (8) TMI 509 - AT - Income Tax

Gain on sale of shares - allegation of taking accommodation taken for the purpose of bogus longterm capital gains to claim exempt income - LTCG or busniss income - Held that - Assessing Officer at best could have considered the investigation report as a starting point of investigation. The report only informed the assessing officer that some persons may have misused the script for the purpose of collusive transaction. The Assessing Officer was duty bound to make inquiry from all concerned parties relating to the transaction and then to collect evidences that the transaction entered into by the assessee was also a collusive transaction. We, however, find that the Assessing Officer has not brought on record any evidence to prove that the transactions entered by the assessee which are otherwise supported by proper third party documents are collusive transactions. We are bound to consider and rely on the evidence produced by the assessee in support of its claim and base our decision on such evidence and not on suspicion or preponderance of probabilities. No material was brought on record by the AO to controvert the evidence furnished by the assessee. Under these circumstances, we accept the evidence filed by the assessee and allow the claim that the income in question is a bonafide Long Term Capital Gain arising from the sale of shares and hence exempt from income tax. - Decided in favour of assessee.

Issues Involved:
1. Legitimacy of Long Term Capital Gains (LTCG) claimed by the assessee.
2. Validity of the evidence provided by the assessee.
3. Application of the principles of natural justice, including the right to cross-examine witnesses.
4. The reliance on general modus operandi and preponderance of probabilities by the Assessing Officer (AO) and Commissioner of Income Tax (Appeals) [CIT(A)].

Issue-wise Detailed Analysis:

1. Legitimacy of Long Term Capital Gains (LTCG) claimed by the assessee:
The assessee declared LTCG from the sale of shares of M/s Cressanda Solution Ltd., which was initially allotted through "Smart Champ IT & Infra Ltd." and later amalgamated. The AO rejected the claim, labeling it as unexplained cash credit based on an investigation report suggesting that the shares were part of a bogus LTCG/STCG scheme. The AO's conclusions were based on a general modus operandi of such schemes, including preferential allotment, artificial price inflation, and thin trading volumes.

2. Validity of the evidence provided by the assessee:
The assessee provided extensive documentation to support the genuineness of the transactions, including:
- Application for shares and allotment letters.
- Payment evidence through account payee cheques.
- Filings with the Registrar of Companies.
- Dematerialization of shares.
- Broker’s contract notes and bank statements.
Despite these, the AO and CIT(A) dismissed the evidence, citing the general modus operandi of bogus transactions without specific evidence against the assessee.

3. Application of the principles of natural justice, including the right to cross-examine witnesses:
The judgment emphasized the importance of cross-examination as part of natural justice. The AO relied on statements from third parties without giving the assessee an opportunity to cross-examine these witnesses. The judgment cited several legal precedents affirming that evidence collected from third parties cannot be used against an assessee unless they are given an opportunity to counter it.

4. The reliance on general modus operandi and preponderance of probabilities by the AO and CIT(A):
The judgment criticized the AO and CIT(A) for relying on general observations and the preponderance of probabilities rather than concrete evidence. It highlighted that each case must be assessed individually, and the burden of proof lies with the revenue authorities to establish the involvement of the assessee in any alleged scam. The judgment referenced multiple legal precedents where courts have held that suspicion, however strong, cannot replace concrete evidence.

Conclusion:
The Tribunal concluded that the AO and CIT(A) failed to provide specific evidence linking the assessee to the alleged bogus transactions. The evidence provided by the assessee was not adequately countered by the revenue authorities. The judgment emphasized that legal principles and concrete evidence must guide decisions, not mere suspicion or general modus operandi. Consequently, the Tribunal allowed the appeal, recognizing the LTCG claimed by the assessee as legitimate and exempt from income tax.

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