2019 (1) TMI 298 - AT - Income Tax

Bogus LTCG - Addition u/s 68 - unexplained cash credits addition - Held that - Coming to Revenue s arguments that department had searched / surveyed various entry operators alleged to have engaged in giving bogus LTCG regarding very scrip, put a specific question to Mr.Bhattacherjee as to whether any of the said entry operators had ever quoted assessee s name or not. The replies is received in negative. Coupled with this, there is no substance in Revenue s argument that similar addition(s) stand affirmed in various judicial precedents for the reason that sec. 68 addition is a factual issue requiring the taxpayer to prove the identity, genuineness and creditworthiness of the relevant sum credited. Thus make it clear that all these assessees have placed sufficient materials on record indicating them to have derived the impugned LTCG form sale of shares held in M/s Unno Industries Ltd. only. Delete the impugned addition(s) respectively. Brokerage commission disallowance, if any, thereupon shall automatic stood as a necessary corollary. - Decided in favour of assessee

Issues Involved:
1. Treatment of Long Term Capital Gains (LTCG) as unexplained cash credit under Section 68 of the Income Tax Act, 1961.
2. Genuineness of transactions in shares of M/s Unno Industries Ltd.
3. Validity of Assessing Officer’s (AO) findings and additions based on circumstantial evidence and human probabilities.
4. Applicability of Section 10(38) exemption for LTCG.
5. Disallowance of brokerage commission.

Detailed Analysis:

1. Treatment of LTCG as Unexplained Cash Credit under Section 68:
The primary issue was whether the LTCG claimed by the assessees from the sale of shares in M/s Unno Industries Ltd. could be treated as unexplained cash credit under Section 68 of the Income Tax Act, 1961. The AO treated the LTCG as unexplained cash credits, citing the lack of substantial trading activity or investment experience by the assessees and the abnormal price movements of the shares. The AO inferred that the transactions were pre-arranged to bring back unaccounted money, thus treating the LTCG as non-genuine.

2. Genuineness of Transactions in Shares of M/s Unno Industries Ltd.:
The AO questioned the genuineness of the transactions based on several factors:
- The appellant's lack of trading expertise and the predetermined nature of the share acquisition.
- Abnormal price movements of M/s Unno Industries Ltd. shares compared to the BSE Sensex.
- Statements from investigation wing and individuals like Shri Anil Kumar Khemka indicating the use of penny stocks for bogus LTCG.
- Discrepancies in the purchase and sale documentation, including the absence of broker notes and transfer deeds.

3. Validity of AO’s Findings and Additions:
The AO’s findings were based on circumstantial evidence, human conduct, and preponderance of probabilities. The AO concluded that the transactions were sham and part of a colorable device to evade taxes. The CIT(A) upheld these findings, emphasizing the abnormal profits and the lack of genuine purchase evidence. However, the tribunal found no merit in the Revenue’s submissions, noting that the AO’s conclusions were based on suspicion and generalizations without concrete evidence.

4. Applicability of Section 10(38) Exemption for LTCG:
The assessees contended that the LTCG should be exempt under Section 10(38) of the Act, as the transactions were conducted through banking channels and supported by contract notes. The tribunal referred to previous decisions where similar additions were deleted, emphasizing that mere suspicion cannot replace evidence. The tribunal found that the assessees had provided sufficient documentation to support the genuineness of their transactions, thus qualifying for the Section 10(38) exemption.

5. Disallowance of Brokerage Commission:
In some cases, brokerage commissions were also disallowed. The tribunal noted that these disallowances were secondary to the primary issue of the LTCG’s genuineness. Since the primary additions were found to be unjustified, the disallowance of brokerage commissions was also deemed incorrect.

Conclusion:
The tribunal concluded that the AO and CIT(A) erred in treating the LTCG as unexplained cash credits. It emphasized that the additions were based on suspicion and generalizations without concrete evidence. The tribunal deleted the impugned additions and allowed the assessees' appeals, affirming the genuineness of the LTCG and the applicability of the Section 10(38) exemption. The brokerage commission disallowances, being consequential, were also set aside.

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