2021 (1) TMI 953 - AT - Income Tax

Addition u/s 68 - Bogus LTCG on the sale of equity shares - HELD THAT - The sale of such shares is corroborated by contract notes issued by SEBI registered broker M/s Edelweiss Financial Advisors Ltd., a copy of contract note is placed - These contract notes show the order time, trade number and trade time of the shares sold and also show that Security Transaction Tax and Service Tax was also paid by the assessee. See SHRI ACHAL GUPTA, SHRI UDIT GUPTA, SHRI RAKESH NARAIN GUPTA VERSUS INCOME TAX OFFICER-3 (1) , KANPUR. 2021 (1) TMI 896 - ITAT LUCKNOW The sale proceeds of such shares was credited to the bank account of the assessee. A copy of bank account where the proceeds are reflected is placed. The copy of DEMAT statement of assessee reflects various other shares also which the assessee was holding. All these documentary evidences, which were before the Assessing Officer, show that assessee did earn Long Term Capital Gain on the sale of equity shares of CCL International Ltd. - Decided in favour of assessee.

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Assessment of Long Term Capital Gain (LTCG) on sale of equity shares.
3. Allegation of bogus transactions and addition under Section 68 of the Income Tax Act.
4. Addition under Section 69 of the Income Tax Act for alleged commission paid for arranging bogus capital gain.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The appellant requested condonation of a five-day delay in filing the appeal, attributing it to confusion regarding the date of service of notice. The CIT(A)'s order was received by mail on 06/07/2019, but the physical copy was received on 24/07/2019, leading to the mistaken belief that the service date was 24/07/2019. The respondent had no objection to the condonation. The tribunal found the cause of delay genuine and admitted the appeal.

2. Assessment of Long Term Capital Gain (LTCG) on Sale of Equity Shares:
The assessee claimed LTCG on the sale of equity shares of CCL International Ltd. The Assessing Officer (AO) deemed the LTCG bogus based on an investigation report from Kolkata. The assessee provided documentary evidence, including purchase bills, payment records, DEMAT statements, and contract notes from SEBI-registered brokers, to substantiate the LTCG claim. The Tribunal referenced a similar case involving the assessee's family members where the LTCG was upheld as genuine.

3. Allegation of Bogus Transactions and Addition Under Section 68 of the Income Tax Act:
The AO added the LTCG under Section 68, alleging the transactions were bogus. The Tribunal reviewed the documentary evidence provided by the assessee, including bank statements, broker bills, and DEMAT statements, which demonstrated genuine purchase and sale transactions through authorized channels. The Tribunal cited a previous ruling (Reeshu Goel) where the same scrip was held genuine and not a paper entity. The Tribunal found no material evidence to support the AO's claim of bogus transactions and concluded that the LTCG was genuine.

4. Addition Under Section 69 of the Income Tax Act for Alleged Commission Paid for Arranging Bogus Capital Gain:
The AO also added an amount under Section 69, assuming the assessee paid a commission for arranging the bogus capital gain. The Tribunal found no evidence of commission payments and noted that the AO did not question the authenticity of the submitted documents. The Tribunal referenced previous rulings where similar allegations were dismissed due to lack of evidence. Consequently, the Tribunal deleted the addition under Section 69.

Conclusion:
The Tribunal allowed the appeal regarding the LTCG, holding that the transactions were genuine and not bogus. The additions under Sections 68 and 69 were deleted. Other grounds not argued were dismissed as not pressed. The appeal was partly allowed, following the judicial precedents and the facts of the case.

(Order pronounced in the open court on 18/01/2021)

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