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2018 (11) TMI 1544 - AT - Income TaxBogus Long Term Capital Gains (LTCG) / Long Term Capital Loss (LTCL) - addition u/s 68 - Held that - No dispute that assessee having derived her LTCG on transfer of shares held in M/s Kailash Auto Finance Ltd. Learned Departmental Representative fails to dispute that very issue stands adjudicated in assessee s favour in co-ordinate bench s decision in SANJEEV GOEL (HUF) VERSUS INCOME TAX OFFICER, WARD-45 (3) , KOLKATA 2018 (8) TMI 1747 - ITAT KOLKATA . As we 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 Long Term Capital Gain from sale of shares and hence exempt from income tax - Decided in favour of assessee
Issues Involved:
1. Treatment of Long Term Capital Gains (LTCG) and Long Term Capital Loss (LTCL) as bogus unexplained cash credits under Section 68 of the Income Tax Act, 1961. 2. Disallowance of unexplained commission expenditure. 3. Examination of the validity of the Assessing Officer's findings and the reliance on the investigation wing's report. Detailed Analysis: 1. Treatment of LTCG and LTCL as Bogus Unexplained Cash Credits The primary issue in the appeals was the treatment of LTCG and LTCL from the transfer of shares as bogus unexplained cash credits under Section 68 of the Income Tax Act, 1961. The Assessing Officer (AO) and the Commissioner of Income-tax (Appeals) had adopted an identical line of reasoning, treating the gains and losses as unexplained cash credits. This was based on the premise that the transactions were part of a scheme involving stock market price rigging in collusion with various entity operators. The AO argued that the entities in which investments were made, such as M/s Kailash Auto Finance Ltd., did not have a sound financial position or business activity to justify the LTCG. The AO relied on case laws such as Sumati Dayal vs. CIT 214 ITR 801 (SC) and CIT vs. Durga Prasad More (1971) 82 ITR (SC) to support the contention that the transactions were bogus. 2. Disallowance of Unexplained Commission Expenditure In some cases, the AO also disallowed unexplained commission expenditure. This disallowance was based on the conclusion that the transactions leading to LTCG were not genuine and hence, any related commission expenditure was also deemed unexplained and disallowable. 3. Examination of the Validity of the AO's Findings The Tribunal examined whether the AO's findings, which were largely based on general observations and the investigation wing's report, were valid. The Tribunal noted that the AO had not brought any specific evidence against the assessees to prove that the transactions were collusive or that the assessees were part of any scheme to generate bogus LTCG. The Tribunal referred to several precedents where similar issues had been adjudicated in favor of the assessees. For instance, in the case of Sanjeev Goel (HUF) vs. ITO (ITA No.354/Kol/2018), the Tribunal had held that the AO's reliance on general observations and the investigation wing's report, without specific evidence against the assessee, was insufficient to justify the addition of LTCG as unexplained cash credits. The Tribunal emphasized the need for the AO to provide specific evidence and allow cross-examination of any third-party statements relied upon. It was noted that the AO had failed to do so and had merely relied on the investigation wing's report, which was not substantiated with concrete evidence against the assessees. Conclusion: The Tribunal concluded that the AO had not provided specific evidence to prove that the transactions were bogus. The reliance on general observations, suspicion, and the investigation wing's report was insufficient. Consequently, the Tribunal deleted the additions made by the AO and allowed the appeals in favor of the assessees. The Tribunal's order was pronounced in open court on 14/11/2018, and it was directed that a copy of the common order be placed in the respective appeals.
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