2020 (11) TMI 902 - AT - Income Tax

Assessment u/s 153A - Bogus claim of LTCG - Addition made without reference to seized material - HELD THAT - AO has reassessed the income of the assessee by disallowing the long term capital gains exemption claimed u/s 10(38) without making any reference to any incriminating material found during the course of search. No finding of AO or any other material brought on record that these transactions of sale of shares were concealed and not reported to the Revenue while filing the original return of income on 30.08.2015 for the impugned assessment year. Once these transactions were reported in the return of income furnished before the date of search, the said transactions were duly disclosed to the department and thus, doesn t represent any undisclosed transactions so as to constitute incriminating material found during the course of search in case of the assessee. Therefore, the addition made by the AO by disallowing the claim of exemption u/s 10(38) and reassessment completed u/s 153A is undisputedly not based on any incriminating material found or seized during the course of search and seizure action u/s 132 of the Act. See KABUL CHAWLA 2015 (9) TMI 80 - DELHI HIGH COURT . - Decided in favour of assessee. Addition u/s 68 on account of bogus LTCG - denial of claim of exemption under section 10(38) in respect of sale of shares - addition u/s 69C made by the AO on account of unexplained commission expenditure for taking bogus accommodation entry in the form of LTCG - HELD THAT - In the instant case, we note that the assessee satisfies the necessary ingredients and conditions as so specified in section 10(38) of the Act, in terms of transfer of long term capital asset by way of sale of equity shares on which STT has been paid, he shall therefore be eligible for exemption on whole of the income so realized as the provisions talks about any income arising from transfer of such long term capital asset which shall be exempt from tax. We accordingly donot see any infirmity or illegality in the said findings of the ld CIT(A). As relying on SHRI VIJAYRATTAN BALKRISHAN MITTAL, 2019 (10) TMI 439 - ITAT MUMBAI we find that evidence produced by the assessee in support of his claim of purchase and sale of shares on the stock exchange have not been refuted by any adverse findings or material which could demonstrate involvement of the assessee or collusion with so called accommodation entry providers to obtain bogus LTCG as so alleged by the authorities below. As entirety of facts and circumstances of the case, we are of the considered view that the assessee has discharged the necessary onus cast on him in terms of claim of exemption of long term capital gains u/s 10(38) of the Act by establishing the genuineness of transaction of purchase and sale of shares and satisfying the requisite conditions specified therein and the gains so arising on sale of shares therefore has been rightly claimed as exempt u/s 10(38) - Accordingly, in the facts and circumstances of the case, we do not find any error or illegality in the impugned order of the CIT(Appeals) who has rightly allowed the said claim of the assessee - Decided against revenue.

Issues Involved:

1. Validity of additions made without reference to incriminating material.
2. Deletion of addition on account of bogus Long-Term Capital Gains (LTCG).
3. Deletion of addition on account of unexplained commission expenditure.
4. Reliance on statements and information from the Investigation Wing.
5. Analysis of financial fundamentals and share price movement.
6. Impact of SEBI's interim and final orders.
7. Applicability of cross-examination rights.
8. Legal principles and precedents regarding addition based on suspicion and surmises.

Issue-wise Detailed Analysis:

1. Validity of Additions Made Without Reference to Incriminating Material:

The Revenue challenged the findings of the CIT(A) that the additions were made without reference to incriminating material found during the search. The assessee had filed a return of income declaring total income, which was accepted in the original assessment. The CIT(A) held that no incriminating material was found during the search related to the disallowance of the LTCG claim under section 10(38). The Tribunal upheld the CIT(A)'s decision, emphasizing that in the absence of incriminating material, the completed assessment could not be disturbed.

2. Deletion of Addition on Account of Bogus LTCG:

The assessee claimed LTCG exemption on the sale of shares of Mishka Finance and Trading Ltd. The AO disallowed the exemption, treating the LTCG as bogus based on statements from entry operators and information from the Investigation Wing. The CIT(A) deleted the addition, noting that the assessee provided all necessary documentary evidence to substantiate the transactions. The Tribunal affirmed the CIT(A)'s decision, highlighting that the AO failed to provide any direct evidence linking the assessee to the alleged bogus transactions.

3. Deletion of Addition on Account of Unexplained Commission Expenditure:

The AO made an addition for unexplained commission expenditure, alleging that the assessee paid commission for obtaining bogus LTCG entries. The CIT(A) deleted this addition as well, reasoning that since the LTCG was found to be genuine, the related commission expenditure could not be considered unexplained. The Tribunal upheld this finding.

4. Reliance on Statements and Information from the Investigation Wing:

The AO relied on statements from entry operators and information from the Investigation Wing to make the additions. The CIT(A) and the Tribunal found that these statements were not corroborated by any incriminating material found during the search. The Tribunal emphasized that statements alone, without supporting evidence, could not justify the additions.

5. Analysis of Financial Fundamentals and Share Price Movement:

The AO argued that the share price movement of Mishka Finance and Trading Ltd. was abnormal and not supported by the company's financial fundamentals. The CIT(A) and the Tribunal noted that the price movement alone could not be a basis for treating the transactions as bogus. The Tribunal cited precedents where capital gains could not be treated as bogus solely based on abnormal price movements.

6. Impact of SEBI's Interim and Final Orders:

The AO referred to SEBI's interim order banning trading in the shares of Mishka Finance and Trading Ltd. The CIT(A) and the Tribunal noted that SEBI's final order lifted the ban and exonerated the entities, including the assessee. The Tribunal held that the SEBI orders did not support the AO's findings of bogus transactions.

7. Applicability of Cross-Examination Rights:

The Tribunal emphasized the importance of cross-examination rights, citing the Supreme Court's decision in Andaman Timber Industries vs. CCE. The AO had relied on third-party statements without providing the assessee an opportunity to cross-examine the witnesses. The Tribunal held that this was a serious flaw that rendered the order a nullity.

8. Legal Principles and Precedents Regarding Addition Based on Suspicion and Surmises:

The Tribunal referred to various legal precedents, including decisions of the Supreme Court and High Courts, which held that additions could not be made based on suspicion, surmises, or conjectures. The Tribunal reiterated that the burden of proving a transaction to be bogus lies with the Revenue, which must be discharged by adducing legal evidence.

Conclusion:

The Tribunal dismissed the Revenue's appeals, affirming the CIT(A)'s findings that the additions were not justified in the absence of incriminating material, direct evidence, and proper cross-examination. The Tribunal upheld the assessee's claim of LTCG exemption and deleted the related additions for unexplained commission expenditure.

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