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2021 (6) TMI 965 - AT - Income TaxAddition u/s 68 - Bogus LTCG on sale of shares - denial of assessee claim to the benefit u/s 10(38) - HELD THAT - Since the Ld. A.O has not indicated or brought on record any evidence which could prove that the assessee(s) are having any link with the alleged brokers/sub brokers/companies or are associated to earn bogus Long Term Capital Gain. We therefore in the given facts and circumstances of the case and respectfully following the judgment of Hon ble Delhi High Court in the case of PCIT v/s Smt. Krishna Devi Others 2021 (1) TMI 1008 - DELHI HIGH COURT and SWATI LUTHRA, SHRUTI LUTHRA, NAMRATA SEHGAL LUTHRA, MS. ASHA LUTHRA 2019 (7) TMI 526 - ITAT DELHI since the facts and issues raised are similar and assessee has filed necessary documents to prove the genuineness of purchase and sales of equity shares of listed company and also fulfilled the conditions provided u/s 10(38) of the Act and all these documentary evidences have not been found to be non genuine and the source of sale consideration is well supported by contract note issued by the registered broker and shares have been transferred from Demat account which were held for more than 12 months, the assessee is eligible for the exemption u/s 10(38) of the Act for Long Term Capital Gain and thus no addition was called for u/s 68 as well as the addition for estimated brokerage expenses. - Decided in favour of assessee.
Issues Involved:
1. Denial of exemption under Section 10(38) of the Income Tax Act for Long Term Capital Gain (LTCG). 2. Validity of assessment proceedings due to lack of opportunity for cross-examination of third-party statements used for additions. Detailed Analysis: 1. Denial of Exemption under Section 10(38) for LTCG: The main issue was whether the CIT(A) erred in denying the exemption under Section 10(38) for LTCG earned by the assessee and treating the transactions as sham. The assessee had claimed LTCG on the sale of shares which were purchased offline and later sold online through a recognized stock exchange. The Assessing Officer (A.O.) treated these gains as bogus, citing reasons such as abnormal increase in share prices not backed by financial growth and outcomes of investigations involving entry operators and share brokers. The Tribunal observed that the assessee provided ample documents to prove the genuineness of the transactions, including contract notes, demat statements, and bank statements. These documents were not found to be incorrect by the A.O. or CIT(A). The Tribunal referred to the decision of the Co-ordinate Bench in the case of Swati Luthra, where similar issues were adjudicated in favor of the assessee, allowing the claim of exemption under Section 10(38). The Tribunal emphasized that the transactions were supported by documentary evidence, and the A.O. did not provide any specific defect in these documents. The Tribunal also noted that the A.O.'s reliance on third-party statements without providing an opportunity for cross-examination was a serious flaw, as held by the Hon'ble Supreme Court in the case of Andaman Timber Industries. 2. Validity of Assessment Proceedings: The second issue was whether the assessment proceedings were valid given that the assessee was not granted the opportunity to cross-examine the persons whose statements were used by the A.O. to make the additions. The Tribunal found that the A.O. had based his conclusions on statements from third parties without confronting these statements to the assessee or providing an opportunity for cross-examination. This was a violation of the principles of natural justice. The Tribunal referred to the judgment of the Hon'ble Supreme Court in the case of Andaman Timber Industries, which held that not allowing cross-examination of witnesses whose statements are used as the basis for an order is a serious flaw that makes the order nullity. The Tribunal also noted that similar findings were made by the Hon'ble Delhi High Court in the case of Pr. CIT vs. Smt. Krishna Devi, where the court dismissed the revenue's appeal due to lack of evidence showing any agreement between the assessee and the parties providing accommodation entries. Conclusion: The Tribunal concluded that the assessee had provided sufficient documentary evidence to prove the genuineness of the transactions and had fulfilled the conditions of Section 10(38) of the Act. The Tribunal held that the A.O.'s reliance on third-party statements without providing an opportunity for cross-examination was not justified. Consequently, the Tribunal allowed the appeals of both assessees, granting them the benefit of exemption under Section 10(38) for LTCG and setting aside the additions made by the A.O. The appeals of Shri Hakimuddin Khambati and Smt. Manisha Agrawal were allowed, and the Tribunal's decision was pronounced as per Rule 34 of ITAT Rules, 1963 on 25.05.2021.
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