2021 (4) TMI 148 - AT - Income Tax

Bogus LTCG - script being a penny stock and paper entity - HELD THAT - Assessee had purchased shares through SEBI registered brokers through screen based trading and for which the payments were made through banking channels. The assessee had sold shares through authorized stock brokers through screen based trading and payments were received through banking channels after deduction of STT. shares of CCL International Ltd. were in the demat account of asses see and the fact of these shares having been transferred to the account of brokers M/s. Chuknoo Securities Ltd. on account of sale is also apparent from this paper. The transaction statement placed in paper book also proves that the assessee was holding other scripts also. Paper book demonstrates that proceeds of sale of such shares were credited to bank account of the assessee. All evidence of purchase sale are placed. All these documents clearly demonstrate that the assessee did earn long-term capital gain on the sale of shares of CCL International Ltd. after holding for a period of more than one year and on which STT was also paid. Moreover the Assessing Officer has not doubted any of the above documents. The only objection raised by the authorities below is that the scrip from which the assessee had earned long-term capital gain has been held by the Investigation Wing of the Revenue to be a paper entity and which has further held that this scrip was being used for creating artificial capital gain. We find that the hon'ble Tribunal in the case of Mohan Lal Agarwal (HUF) 2018 (11) TMI 1489 - ITAT DELHI has examined this aspect and after recording detailed findings has held this scrip to be a genuine scrip and has held that the scrip is not a paper entity. Also see SHRI ACHAL GUPTA, SHRI UDIT GUPTA, SHRI RAKESH NARAIN GUPTA VERSUS INCOME TAX OFFICER-3 (1) , KANPUR. 2021 (1) TMI 896 - ITAT LUCKNOW Therefore, following the above judicial precedents, we allow the appeals of the assessee on the merits.

Issues Involved:
1. Non-confrontation of statements during assessment proceedings.
2. Validity of notice issued under section 143(2) of the Income-tax Act, 1961.
3. Jurisdictional issues concerning the transfer of the case.
4. Application of section 292BB of the Income-tax Act, 1961.
5. Addition of ?49,13,833 as unexplained money under section 69A.
6. Addition on account of sale proceeds of shares.
7. Reliance on third-party documents/statements without cross-examination.
8. Addition of ?98,277 as alleged commissions brokerage.
9. Adequacy of opportunity provided to the appellant.
10. Consideration of written submissions.

Detailed Analysis:

1. Non-confrontation of Statements:
The assessee contended that the Commissioner of Income-tax (Appeals) (CIT(A)) erred by holding that statements of share brokers, promoters, and exit providers were shown and confronted to the appellant during the assessment proceedings, which was not the case. The Tribunal noted that the CIT(A) made assumptions without examining the assessment records, which was contrary to the Central Board of Direct Taxes (CBDT) manual of procedures.

2. Validity of Notice under Section 143(2):
The assessee argued that the notice under section 143(2) issued by the Income-tax Officer (ITO) was invalid as the jurisdiction was with the Assistant Commissioner of Income-tax (ACIT) at the time. The Tribunal observed that the CIT(A) erroneously relied on section 124(3) to validate the notice, despite the jurisdictional issues.

3. Jurisdictional Issues:
The assessee highlighted that the case was transferred from the ACIT to the ITO without an order under section 127, making the jurisdictional assumption and subsequent assessment order illegal and void ab initio. The Tribunal acknowledged this procedural lapse.

4. Application of Section 292BB:
The CIT(A) held that the notice issued under section 143(2) was valid under section 292BB, despite contravening CBDT Instructions. The Tribunal found this reliance misplaced, given the procedural irregularities.

5. Addition of ?49,13,833 as Unexplained Money:
The CIT(A) sustained the addition of ?49,13,833 as unexplained money under section 69A. The assessee provided evidence of purchasing shares through banking channels and SEBI registered brokers, holding them in a demat account, and selling them through screen-based trading. The Tribunal found the documentary evidence credible and noted that the Assessing Officer (AO) did not dispute these documents.

6. Addition on Account of Sale Proceeds of Shares:
The CIT(A) sustained the addition of ?49,13,833 on account of sale proceeds of shares, deeming them as managed transactions. The Tribunal referred to similar cases where the Delhi Tribunal ruled in favor of the assessee, recognizing the legitimacy of the transactions and holding that the shares were not merely paper entities.

7. Reliance on Third-Party Documents/Statements:
The assessee argued that the CIT(A) relied on third-party documents/statements without providing an opportunity for cross-examination. The Tribunal emphasized that this approach was contrary to the provisions of law and previous judicial precedents, which required confronting the assessee with such evidence.

8. Addition of ?98,277 as Alleged Commissions Brokerage:
The CIT(A) sustained the addition of ?98,277 as alleged commissions brokerage based on assumptions. The Tribunal found this addition baseless and unsupported by concrete evidence.

9. Adequacy of Opportunity Provided:
The assessee claimed that the CIT(A) decided the appeal in a biased manner, antedating the appellate order and not providing adequate opportunity for representation. The Tribunal noted procedural unfairness in the appellate process.

10. Consideration of Written Submissions:
The assessee contended that the written submissions filed on the ITBA website were not considered before issuing the appellate order. The Tribunal recognized this oversight and the importance of considering all submissions in the appellate process.

Conclusion:
The Tribunal found merit in the assessee's arguments on multiple grounds, particularly concerning procedural lapses, jurisdictional issues, and the credibility of documentary evidence supporting the transactions. The appeals were partly allowed, with the Tribunal directing relief to the assessee based on the merits of the case and previous judicial precedents. The Tribunal emphasized the need for adherence to procedural fairness and proper examination of evidence in tax assessments.

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