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2019 (12) TMI 455 - AT - Income TaxReopening of assessment - Exemption u/s 10(38) - sale of Long term shares - AO held that the assessee had manipulated the sale of shares within a short span of time in collusion with the borkers in order to earn tax free exempt LTCG and the assessee has not proved the genuiness of transactions - HELD THAT - Since, the assessee has taken a plea that the reasons recorded for reopening is not given to the assessee, we restore the matter to the Assessing Officer to intimate the reasons for reopening the assessment and thereafter comply in accordance with the Hon ble Supreme Court s decision in the case of GKN DRIVESHAFTS (INDIA) LTD. VERSUS INCOME-TAX OFFICER AND OTHERS 2002 (11) TMI 7 - SUPREME COURT . The Assessing Officer shall require the assessee 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 assessee shall comply with the Assessing Officer s requirements as per law - the assessee s appeal is treated as partly allowed for statistical purposes.
Issues:
1. Reopening of assessment without tangible material. 2. Treatment of purchase and sale of shares as penny stock transactions. 3. Claim of Long Term Capital Gain exemption under Section 10(38). Issue 1: Reopening of assessment without tangible material The assessee challenged the jurisdiction of the Assessing Officer to reopen the assessment under Section 147 without tangible material. The Tribunal directed the Assessing Officer to intimate the reasons for reopening the assessment, following the decision in GKN Driveshafts (India) Ltd. v. ITO. The Tribunal emphasized that assessments should not be based on mere suspicion but supported by facts. The Tribunal highlighted the importance of providing an opportunity for cross-examination to ensure fairness in assessments. Issue 2: Treatment of purchase and sale of shares as penny stock transactions The Assessing Officer treated the purchase and sale of shares by the assessee as penny stock transactions, alleging manipulation to earn tax-free exempt Long Term Capital Gains (LTCG). The Tribunal observed that the facts required for adjudicating the appeals were not forthcoming. It raised questions regarding the nature of the transactions, possession of shares, dematerialization process, share transfer details, and cash availability. The Tribunal found insufficient evidence to prove that the shares were held for more than 12 months, emphasizing the need for the assessee to substantiate the case with adequate opportunity for explanation. Issue 3: Claim of Long Term Capital Gain exemption under Section 10(38) The assessee claimed Long Term Capital Gain exemption under Section 10(38) on the sale of shares. However, the Assessing Officer refused the exemption, alleging bogus capital gains. The Tribunal directed the assessee to prove the genuineness of the transaction and provide all necessary evidence to substantiate the claim. It emphasized the importance of complying with the Assessing Officer's requirements and conducting a thorough enquiry to establish the actuality and genuineness of the transactions. In conclusion, the Tribunal partly allowed the assessee's appeal for statistical purposes, directing a re-adjudication of the issues by the Assessing Officer with a focus on establishing the authenticity of the transactions and compliance with legal requirements. The judgment highlighted the significance of providing factual evidence, fair assessment procedures, and opportunities for the assessee to substantiate their claims in tax matters.
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