2021 (9) TMI 1034 - AT - Income Tax

Unexplained cash credit u/s 68 - assessee has claimed to sell the share very high as compared to Bombay Stock Exchange quoted price - as per revenue it is not a genuine share transaction; and merely because transaction was through banking channel does not prove the genuineness of the transaction and the address of the company who has remitted the amount could not be located by the postal authorities at the given address - HELD THAT - The apparent transaction fully supported by documentary evidences cannot be disbelieved merely on some hypothetical premise that why someone will buy a share at such a low price. There is no gain which has accrued to the assessee nor there any big loss, except for minor cost of indexation in computation of capital gains. We agree with the contention of the Ld. Counsel that merely because the speed post sent by the AO to the purchaser company could not be served that does not mean said company is a non entity or nonexistent especially when under the statutory record and the records of Registrar of companies it was still active and was complying with all the statutory requirements under the Companies Act. The bank statement clearly reveals that the money has been received through RTGS from the bank account of the purchaser and duly confirmed by the purchaser company who has given confirmation letter filed before the AO and also placed before us. Apart from that, the sale bill and the copy of share certificates clearly show that the shares which were possessed by the assessee had duly been sold to the said party and it is not the case of the AO that these shares are still lying with the assessee. Without any adverse material or inquiry on record that purchaser is non genuine or purchaser has stated anything against the assessee or it has been found in any of the inquiry that the transaction is not genuine. Prima facie there has to be some kind of benefit to the assessee in such dubious transaction or there is some information that any unaccounted money has been converted into sale transaction and is appearing as credit in the books of assessee where such allegations are made against the assessee. If at all there is any loss then it could be in case of purchaser in this case and not the assessee. Accordingly, we do not find any justifiable reason for confirming the addition - Decided in favour of assessee.

Summary

Issues:
1. Addition of sale proceeds of equity shares as unexplained cash credit u/s 68 of the Act.
2. Treatment of sale proceeds as assessable u/s 115BBE of the Act.
3. Directions for carrying forward long term capital loss.
4. Request for amendment of grounds of appeal.

Issue 1: Addition of Sale Proceeds as Unexplained Cash Credit:
The assessee appealed against the addition of ?49,50,000 as unexplained cash credit under section 68 of the Act. The AO disbelieved the sale transaction due to discrepancies, including physical sale of listed company shares, undated confirmation letter, untraceable company address, and price variations. The CIT(A) upheld the addition, citing discrepancies in share price and lack of address verification. However, the ITAT found the purchase and sale of shares genuine, supported by documentary evidence and direct banking transactions. The absence of purchaser denial, gain to the assessee, or adverse inquiry led to the deletion of the addition.

Issue 2: Treatment as Assessable u/s 115BBE:
The CIT(A) confirmed the action treating the sale proceeds under section 115BBE, contrary to legal principles. However, the ITAT found the transaction genuine and not warranting such treatment, leading to the reversal of this direction.

Issue 3: Directions for Carrying Forward Capital Loss:
The CIT(A) failed to provide directions for carrying forward long term capital loss, which the assessee sought. The ITAT did not address this specifically but allowed the appeal, implying relief on this aspect as well.

Issue 4: Amendment of Grounds of Appeal:
The appellant requested flexibility to amend the grounds of appeal as needed. The judgment did not explicitly mention any amendments made during the hearing.

In conclusion, the ITAT allowed the appeal, overturning the additions made by the AO and confirmed by the CIT(A) regarding the sale proceeds of equity shares. The judgment emphasized the genuineness of the transaction supported by documentary evidence and direct banking channels, leading to the deletion of the disputed amount from the assessee's income.