2018 (10) TMI 187 - AT - Income Tax

Bogus LTCG - Long term capital gains arising from sale of shares - Held that - As relying on NAVNEET AGARWAL, LEGAL HEIR OF LATE KIRAN AGARWAL VERSUS ITO, WARD-35 (3) , KOLKATA 2018 (8) TMI 509 - ITAT KOLKATA AO 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. AO 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. AO 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. 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. Correctness of treating Long Term Capital Gains (LTCG) as bogus.
2. Addition under Section 68 of the Income Tax Act, 1961.
3. Consideration of evidence and surrounding circumstances.
4. Application of human probabilities and preponderance of evidence.
5. Reliance on investigation reports and statements without cross-examination.

Detailed Analysis:

1. Correctness of treating Long Term Capital Gains (LTCG) as bogus:
The core issue in this case is whether the LTCG declared by the assessee from the sale of shares in M/s Unno Industries Ltd. and Sharp Trading Finance Ltd. amounting to ?93,19,895/- was genuine or bogus. The Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] concluded that the LTCG was bogus based on the astronomical rise in share prices and the alleged involvement of entry operators in manipulating share prices. The AO undertook a detailed analysis of the share price trends and concluded that the transactions were a sham, designed to convert unaccounted cash into tax-exempt income.

2. Addition under Section 68 of the Income Tax Act, 1961:
The AO invoked Section 68 of the Act to treat the LTCG as unexplained cash credits and added the amount of ?93,19,895/- along with a 5% commission of ?4,65,995/-. The CIT(A) upheld this addition, emphasizing that the transactions were suspicious and lacked genuine economic substance. The CIT(A) relied on various judicial precedents to support the view that the burden of proof lies on the assessee to substantiate the genuineness of the transactions.

3. Consideration of evidence and surrounding circumstances:
The assessee provided extensive documentation, including bank statements, demat account statements, contract notes, and proof of amalgamation, to support the genuineness of the transactions. However, the AO and CIT(A) dismissed these documents as mere paperwork, arguing that they were part of a pre-planned scheme to generate bogus LTCG. The CIT(A) cited several judicial rulings to justify the reliance on circumstantial evidence and the principle of human probabilities in assessing the genuineness of the transactions.

4. Application of human probabilities and preponderance of evidence:
The CIT(A) and AO applied the principle of human probabilities to conclude that the transactions were not genuine. They argued that the extraordinary rise in share prices and the subsequent fall indicated manipulation. The CIT(A) referenced several cases, including CIT vs. Durga Prasad More and Sumati Dayal vs. CIT, to support the view that the apparent must be considered real until proven otherwise, and that the surrounding circumstances and human conduct must be considered in determining the genuineness of transactions.

5. Reliance on investigation reports and statements without cross-examination:
The AO relied on investigation reports from the Directorate of Income Tax (Investigation) [DIT(Inv)] which indicated that the shares in question were part of a larger scheme involving entry operators and brokers to generate bogus LTCG. However, the assessee was not provided with an opportunity to cross-examine the individuals who made these statements, nor were the investigation reports shared with the assessee. This reliance on third-party statements without cross-examination was a significant point of contention.

Tribunal's Findings:
The Tribunal found that the addition made by the AO was based on suspicion and generalizations rather than concrete evidence. It highlighted that the AO did not provide the assessee with the investigation reports or an opportunity to cross-examine the witnesses. The Tribunal emphasized that suspicion, however strong, cannot replace evidence. It relied on various judicial precedents to conclude that the documents provided by the assessee were sufficient to prove the genuineness of the transactions.

The Tribunal noted that the AO's conclusions were based on the assumption that the transactions were part of a larger scheme without providing specific evidence against the assessee. It referenced several cases where similar additions were deleted due to the lack of direct evidence and the reliance on circumstantial evidence and human probabilities.

Conclusion:
The Tribunal allowed the assessee's appeal, deleting the additions made under Section 68 and the 5% commission. It concluded that the AO and CIT(A) erred in treating the LTCG as bogus without concrete evidence and solely based on suspicion and circumstantial evidence. The Tribunal emphasized the importance of providing the assessee with an opportunity to rebut the evidence and cross-examine the witnesses relied upon by the AO.

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