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2019 (9) TMI 770 - AT - Income TaxBogus LTCG - AO on the basis of the report of investigations done by the Revenue in Kolkatta in which one of the brokers named the respective assessee as a beneficiary of bogus LTCG or named the shares held by the company as a paper/shell/bogus company - Disallowance of exemptions claimed u/s.10(38) - HELD THAT - The issue is restored to the file of AO for re-adjudication on identical directions as given in the case of Heerachand Kanunga 2018 (6) TMI 1329 - ITAT CHENNAI . AO shall also bring on record the role of the assessee in promoting the company and relationship of the assessee with other promoters, role of the assessee in inflating the price of shares, etc. Assessing Officer concerned shall require the assessees; to establish who, with whom, how and in what circumstances the impugned transactions were carried out etc., to prove that the impugned transactions are actual, genuine etc. The assessees shall comply to the concerned AO s requirements as per law. On appreciation of all the above aspects, the Assessing Officer concerned would decide the matter in accordance with law. - Decided in favour of assessee for statistical purposes.
Issues:
Appeal against orders of Commissioner of Income Tax (Appeals) regarding treatment of purchase and sale of shares as penny stock transactions for claiming exemption under section 10(38). Analysis: 1. The assessees appealed against the orders of the Commissioner of Income Tax (Appeals) regarding the treatment of purchase and sale of shares as penny stock transactions for claiming exemption under section 10(38) for the assessment year 2015-16. The Assessing Officer scrutinized the transactions based on investigations by the Revenue and concluded that the assessees manipulated transactions to convert unaccounted income, treating the entire sale consideration as unexplained credit and denying the exemption claim under section 10(38). 2. The assessees contended that the Commissioner of Income Tax (Appeals) erred in confirming the addition made by the Assessing Officer, treating the transactions as penny stock. The arguments presented by both parties focused on the genuineness of the transactions and the burden of proof on the assessee. The Tribunal noted that the assessees were not given a fair opportunity to prove the genuineness and emphasized that the onus of proving exemption rests on the assessee. 3. Referring to previous tribunal decisions and legal principles, the Tribunal highlighted the importance of providing proper materials to establish exemption claims. The Tribunal emphasized that the Assessing Officer must allow the assessee to rebut any evidence contrary to their claims. The Tribunal cited cases where matters were remitted back to the Assessing Officer for re-examination due to lack of conclusive evidence and the need for further investigation. 4. Considering the facts and circumstances of the cases, the Tribunal decided to remit the issue of exemption back to the respective Assessing Officer for re-adjudication. The Assessing Officer was directed to require the assessees to establish the details of the transactions, prove their genuineness, and comply with all legal requirements. The Assessing Officer was given the authority to conduct further inquiries and provide adequate opportunities to the assessees for a fair decision in accordance with the law. 5. Ultimately, the Tribunal partly allowed each of the assessees' appeals for statistical purposes, emphasizing the need for a fair and thorough re-examination of the exemption claims. The decision was pronounced in open court on 5th September 2019 at Chennai. This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision to remit the matter back to the Assessing Officer for re-adjudication based on the principles of natural justice and burden of proof on the assessee.
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