2019 (1) TMI 892 - AT - Income Tax

Bogus LTCG - unexplained cash credit u/s 68 - unexplained expenditure on account of commission - assessee had made investment in shares not having any sound financial position or business activity so as to justify the long term capital gains to this extent - Held that - AO erred in recording a finding of fact that the assessee had made the purchase of M/s. NFGL not through Stock Exchange but it was an off market transaction. We find that the assessee had purchased the shares of M/s. NFGL through registered broker M/s. M. Prasad & Co. which was a registered stock broker of the Bombay Stock Exchange and on 13.06.2012 assessee purchased 25000 shares at ₹ 128.25 per share on which STT was paid and the total transaction of ₹ 32,21,213.10 was paid through account payee cheque to the registered broker and the shares were deposited in the demat account (D. P. Stock HLDG Corp of India Ltd.) Revenue fails to indicate any specific evidence against the assessee in terms qua the LTCG derived from transfer of shares in the mentioned two companies. We therefore delete the impugned bogus LTCG addition. Consequently the addition made towards unexplained expenditure on account of commission also stands automatically deleted.- Decided in favour of assessee.

Issues Involved:
1. Justification of the addition towards unexplained cash credit under Section 68 of the Income Tax Act, 1961.
2. Justification of the addition towards unexplained expenditure on commission.

Issue-wise Detailed Analysis:

1. Justification of the addition towards unexplained cash credit under Section 68 of the Income Tax Act, 1961:

The assessee filed a return of income for the Assessment Year 2014-15, declaring total income and claiming exempt income under Section 10(38) of the Act for long-term capital gains (LTCG) derived from the sale of shares of Nikki Global Finance Ltd and S R K Industries Ltd. The assessee provided detailed workings and evidence of the transactions, including purchase and sale details, contract notes, demat statements, and bank statements, all showing that the transactions were conducted through a registered share broker and duly suffered Securities Transaction Tax (STT).

The Assessing Officer (AO) treated the sale consideration as bogus, alleging that the share prices were artificially rigged and manipulated, thus converting illegal money into legal money. The AO added the sale consideration as unexplained cash credit under Section 68 of the Act. This action was upheld by the Commissioner of Income Tax (Appeals) [CIT(A)].

The tribunal noted that both lower authorities adopted identical reasoning, treating the sale consideration as bogus. The AO's findings were based on suspicion and presumption without any direct evidence against the assessee. The tribunal referred to various judicial precedents, including the case of Smt Madhu Killa vs ACIT, where similar additions were deleted based on the genuineness of the transactions supported by documentary evidence.

The tribunal emphasized that the assessee had furnished all primary evidence, including contract notes, demat statements, and bank statements, proving the genuineness of the transactions. The AO did not find any fault with these documents. The tribunal also highlighted that the AO failed to issue summons or conduct further investigations to substantiate the allegations.

The tribunal concluded that the AO and CIT(A) erred in rejecting the legally admissible evidence and taking an adverse view based on suspicion and conjecture. The tribunal held that the transactions were genuine and supported by relevant evidence, and thus, the addition of the sale consideration as unexplained cash credit was not justified.

2. Justification of the addition towards unexplained expenditure on commission:

The AO also made an addition towards unexplained expenditure on commission at the rate of 0.5% of the sale consideration, amounting to ?48,085/-, based on the presumption that the sale transactions were bogus. This addition was also upheld by the CIT(A).

The tribunal, however, found that since the primary addition of the sale consideration as unexplained cash credit was not justified, the consequent addition towards commission also could not be sustained. The tribunal noted that the AO's findings were based on assumptions and without any direct evidence. The tribunal emphasized that the burden of proof lies on the revenue to disprove the evidence furnished by the assessee, which the AO failed to do.

Therefore, the tribunal held that the addition towards unexplained expenditure on commission was also not justified and directed its deletion.

Conclusion:

The tribunal allowed the appeal of the assessee, deleting the additions made towards unexplained cash credit under Section 68 and unexplained expenditure on commission. The tribunal emphasized the importance of direct evidence and the need for the revenue to substantiate its allegations with concrete proof, rather than relying on suspicion and presumption. The tribunal's decision was based on the genuineness of the transactions supported by documentary evidence provided by the assessee.

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