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2021 (3) TMI 1169 - AT - Income TaxBogus LTCG - addition u/s 68 - long term on sale of equity share and 3% commission on sale value of shares through registered stock exchange - eligibility for exemption u/s 10(38) denied - HELD THAT - As the assessee has successfully discharged the onus cast upon him by provisions of section 68 of the Act and such discharge is purely a question of fact. We, accordingly, direct the Assessing Officer to accept the long term capital gain declared as such and allow exemption u/s 10(38) of the Act. In light of the above, we delete the impugned addition made on account of unexplained cash credits u/s 68 - Decided in favour of assessee.
Issues Involved:
1. Legitimacy of Long Term Capital Gains (LTCG) claimed as exempt under Section 10(38) of the Income Tax Act. 2. Treatment of the receipt of ?5,76,90,819/- as unexplained cash credit under Section 68 of the Act. 3. Addition of ?17,98,225/- as unexplained expenditure under Section 69C of the Act. Issue-wise Detailed Analysis: 1. Legitimacy of Long Term Capital Gains (LTCG) claimed as exempt under Section 10(38) of the Income Tax Act: The assessee declared LTCG of ?5,76,90,819/- from the sale of shares of M/s Radford Global Ltd., claimed as exempt under Section 10(38) of the Act. The Assessing Officer (AO) denied this claim, citing an investigation report by Pr. DIT (Inv.) Kolkata, which indicated that the assessee was a beneficiary of bogus LTCG entries through stock brokers trading in circular and penny stocks. The AO relied on an interim order by SEBI dated 19.12.2014, which restrained the assessee from accessing the securities market due to alleged market manipulation by Radford Group & Suspected Entities. The AO concluded that the transactions were not genuine and treated the receipt of ?5,76,90,819/- as unexplained cash credit under Section 68 of the Act, to be taxed at 30% under Section 115BBE. 2. Treatment of the receipt of ?5,76,90,819/- as unexplained cash credit under Section 68 of the Act: The AO's decision was based on the SEBI interim order and the investigation report, which suggested that the transactions were part of a scheme to provide accommodation entries for LTCG benefits. The AO did not conduct independent inquiries or provide the assessee with the investigation material or statements of alleged entry operators. The Ld. Commissioner of Income Tax (Appeals) [CIT (A)] upheld the AO's decision, relying on the principle of preponderance of probability and noting that the SEBI interim order had not been revoked. However, the Tribunal found that the SEBI interim orders were later revoked by SEBI's final order dated 20.9.2017, which cleared the assessee of any adverse findings. The Tribunal noted that the AO did not make any independent inquiries or provide the assessee with the investigation material or cross-examination opportunities, and thus, the addition under Section 68 was not justified. 3. Addition of ?17,98,225/- as unexplained expenditure under Section 69C of the Act: The AO also added ?17,98,225/- as unexplained expenditure under Section 69C, assuming that commission charges of 3% to 5% would have been incurred for arranging the capital gains. The CIT (A) upheld this addition, but the Tribunal found no evidence to support the AO's assumption. The Tribunal noted that the AO's approach was based on surmises and conjectures without any material evidence. The Tribunal directed the AO to delete the addition of ?17,98,225/- as unexplained expenditure under Section 69C. Conclusion: The Tribunal allowed the assessee's appeal, directing the AO to accept the LTCG of ?5,76,90,819/- as genuine and exempt under Section 10(38) of the Act. The Tribunal also directed the deletion of the addition of ?17,98,225/- made under Section 69C. The Tribunal emphasized the need for independent inquiries and evidence-based conclusions, rather than reliance on interim orders or investigation reports without further verification. The Tribunal's decision was based on the final SEBI order, which cleared the assessee of any adverse findings, and the lack of material evidence to support the AO's conclusions.
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