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2019 (9) TMI 1255 - AT - Income TaxBogus LTCG - Addition u/s 68 - HELD THAT - AO has heavily relied upon the statement recorded from the director of NCL Research Financial Services Ltd during the course of search and the investigation wing of income-tax department, Kolkatta. It is also an admitted fact that the AO has relied upon said information in the show cause notice issued to the assessee dated 05-12-2016. The assessee has sought for information relied upon by the assessee in the form of statement of director of the company and also requested for cross examination of the person, who gave the statement vide letter dated 14-12-2016. All these are part of paper book filed by the assessee. When the assessee has specifically asked for statements, which are used against the assessee to draw an adverse inference and also requested for cross examination of the person, who gave the statement, it is the duty of the AO to provide such statements to the assessee and also to provide the opportunity of cross examination. In this case, inspite of repeated requests, the AO has failed to do so. Therefore, we are of the considered view that the assessment order passed by the AO suffers from jurisdiction and is in violation of principles of natural justice, consequently, liable to be quashed. Hence, considering the facts and circumstances of this case and also by following the decision of Hon ble Supreme Court in the case of Andaman Timber Industries vs Commissioner of Central Excise 2015 (10) TMI 442 - SUPREME COURT and other decisions, we quash the assessment order passed by the AO and deleted addition towards unexplained credit u/s 68 of the Act. - Decided in favour of assessee
Issues Involved:
1. Validity of the CIT(A) order. 2. Confirmation of addition made under section 68 of the Income Tax Act, 1961. 3. Violation of principles of natural justice. Detailed Analysis: 1. Validity of the CIT(A) Order: The appellant argued that the CIT(A) order dated 12/03/2018 was arbitrary, against natural justice, unlawful, and invalid. The appeal was directed against the CIT(A)-33, Mumbai's order, which confirmed the addition made under section 68 of the Income Tax Act, 1961, amounting to ?2,29,80,188 on account of Long Term Capital Gain (LTCG) claimed by the appellant. 2. Confirmation of Addition Made Under Section 68: - Assessment Proceedings: The assessee declared LTCG from the sale of shares of NCL Research & Financial Services Ltd amounting to ?2,10,99,063 and claimed exemption under section 10(38). The AO observed that NCL Research & Financial Services Ltd was a penny stock company involved in providing bogus LTCG entries. The AO concluded that the assessee was not a regular investor and treated the receipts from the sale of shares as unexplained credit under section 68, adding ?2,29,80,188 to the income. - CIT(A) Findings: The CIT(A) upheld the AO’s findings, stating that the transactions were arranged to convert unaccounted income into LTCG to claim exemption under section 10(38). The CIT(A) relied on various judicial precedents, including McDowell & Co. Ltd. v. CIT, to support the view that the transactions were not genuine and were merely accommodation entries. - Judicial Precedents: The CIT(A) cited several Supreme Court judgments emphasizing the need to expose subterfuges and dubious methods in tax cases. The CIT(A) concluded that the transactions in penny stocks were not genuine and upheld the addition made by the AO. 3. Violation of Principles of Natural Justice: - Assessee’s Argument: The assessee argued that the AO relied on statements from third parties without providing copies or allowing cross-examination, violating the principles of natural justice. The assessee cited the Supreme Court decisions in Kisinchand Chellaram vs CIT and Andaman Timber Industries vs Commissioner of Central Excise, which emphasized the need to provide the assessee with the opportunity to rebut third-party statements. - Tribunal’s Findings: The Tribunal noted that the AO heavily relied on the investigation report and statements from the director of NCL Research & Financial Services Ltd. The AO did not provide these statements to the assessee or allow cross-examination, despite repeated requests. The Tribunal held that this was a gross violation of the principles of natural justice, making the assessment proceedings null and void. - Legal Precedents: The Tribunal referred to the Supreme Court judgments in Kisinchand Chellaram vs CIT and Andaman Timber Industries vs Commissioner of Central Excise, which established that not providing the assessee with the opportunity to rebut or cross-examine third-party statements amounts to a violation of natural justice. Conclusion: The Tribunal quashed the assessment order passed by the AO, citing a violation of the principles of natural justice. Consequently, the addition of ?2,29,80,188 under section 68 was deleted. The grounds challenging the additions on merits were dismissed as infructuous since the assessment order was quashed on legal grounds. The appeal filed by the assessee was allowed.
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