2021 (7) TMI 47 - AT - Income Tax

Disallowance of Short Term Capital loss incurred on trading of shares - as argued appellant deals in shares and loss incurred on the shares of other companies have been allowed - HELD THAT - The evidence produced before the Revenue by the appellant in the instant case supports the genuinity of the transaction. No direct material was found and/or relied upon to controvert such evidence filed by the appellant in support of the genuineness of the transactions; the overwhelming evidence filed by the appellant remains and/or uncontroverted. In fact the Revenue has failed to bring on record any evidence to suggest that the sale of shares by the assessee were not genuine. Conclusion drawn by the Revenue authorities on the basis of the common report of Director of Investigation Calcutta which is general in nature and not specific to any assessee so far as the assessee is concerned. Furthermore when the assessee was not confronted with any statement and/or material alleged to be the basis of the report of the Investigation Wing of the Department on which the conclusion drawn by the Revenue on human probabilities surmise and conjectures is not sustainable in the eye of law and therefore the rejection of the claim of short term capital loss made by the assessee is liable to be quashed. - Decided in favour of assessee.

Summary

Issues:
Confirmation of addition of short term capital loss on trading of shares of UNNO Industries Ltd.

Analysis:
The appeal was against the order passed by the Commissioner of Income Tax (Appeals) confirming the addition of short term capital loss on trading of shares of UNNO Industries Ltd. The assessee challenged the disallowance of the loss incurred in share trading, which was based on a report from the Investigation Wing of Kolkata and a statement from the Director of UNNO Industries Ltd. The appellant argued that the shares were purchased and sold through recognized stock exchanges, and all transactions were genuine. The appellant submitted various documents to support the transactions, including invoices, certificates, bank statements, and sale notes. The appellant also cited a similar decision by the Hyderabad ITAT Bench where additions were deleted in a comparable case.

The Tribunal considered the evidence presented by the appellant, which demonstrated the genuineness of the transactions. The Revenue's conclusions were based on a general report from the Investigation Wing and lacked specific evidence against the appellant. The Tribunal emphasized that decisions should be based on evidence, not generalizations or suspicions. The Tribunal referred to various case laws where additions based on suspicion were deleted. The Tribunal found that the Revenue failed to provide evidence to suggest the transactions were not genuine. The rejection of the claim of short term capital loss was deemed unsustainable in law, and the addition made by the Revenue was deleted.

The Tribunal observed that the transactions were conducted through Demat Accounts and payments were made through banking channels. The sale of shares occurred through recognized stock exchanges via authorized brokers. The Tribunal noted that while losses from other companies' shares were allowed, the loss from UNNO Industries Ltd. shares was disallowed based on a report from the investigation wing. However, the absence of concrete evidence linking the appellant to stock manipulation or ulterior motives led to the deletion of the addition. The Tribunal emphasized the importance of evidence in establishing the genuineness of transactions and ruled in favor of the appellant.

In conclusion, the Tribunal allowed the appeal of the assessee, emphasizing the lack of concrete evidence to support the disallowance of the short term capital loss. The decision was based on the genuineness of the transactions and the failure of the Revenue to provide specific evidence against the appellant.