2022 (4) TMI 893 - AT - Income Tax

Addition u/s 68 - Non compliance of provisions of section 142(3) - bogus sale consideration received on sale of shares of listed companies - Denial of claim of exemption u/s 10(38) and commission paid on the sale transaction - HELD THAT - On material made available to the assessee vis- -vis provisions of section 142(3) of the Act which casts a mandatory statutory procedural compliance requirement on the Ld. AO in completing the assessment proceedings which otherwise may vitiate the assessment itself, it necessitates us to remand back the present case to the Assessing Officer for its appropriate adjudication by respectfully considering the observation made by the Hon ble Madras High Court in case of Mrs. Manish D. Jain (HUF) 2020 (12) TMI 740 - MADRAS HIGH COURT on the availability of material to the assessee. Thus respectfully following the directions given in Para 8 in the judgment of Hon ble Karnataka High Court in the case of Chandra Devi Kothari 2015 (2) TMI 1313 - KARNATAKA HIGH COURT and the order of co-ordinate bench of ITAT, Bangalore in the case of Shri Suresh J. Kothari (HUF) 2019 (7) TMI 1918 - ITAT BANGALORE we set aside the impugned order passed by Ld. CIT(A) and Ld. AO and restore the matter back to the file of the Ld. AO with the direction to comply with the mandatory statutory requirements of section 142(3) of the Act failing which may vitiate the assessment itself. AO has to reconsider the issue afresh after furnishing to the assessee all the material relied upon by him/her while passing the assessment order. Appeal of the assessee is allowed for statistical purpose

Issues Involved:
1. Jurisdiction of the Assessing Officer (AO).
2. Validity of assessment orders under section 143(3).
3. Entitlement to exemption under section 10(38) for Long Term Capital Gains (LTCG).
4. Reliance on third-party statements without cross-examination.
5. Treatment of sale transactions as unexplained cash credits under section 68.
6. Levy of interest under section 234B.
7. Adequacy of drawings and disallowance under section 14A.

Detailed Analysis:

1. Jurisdiction of the Assessing Officer (AO):
The appellants contended that the Commissioner of Income Tax (Appeals) failed to appreciate that the AO's order was without jurisdiction. However, the judgment did not specifically address this issue, implying that the tribunal did not find merit in this contention.

2. Validity of Assessment Orders Under Section 143(3):
The appellants argued that the assessment orders under section 143(3) were bad in law. The tribunal did not explicitly address this issue, suggesting that the primary focus was on the substantive issues of the case rather than procedural validity.

3. Entitlement to Exemption Under Section 10(38) for Long Term Capital Gains (LTCG):
The appellants claimed exemption under section 10(38) for LTCG on the sale of shares. The AO disallowed this exemption, treating the transactions as engineered to generate artificial LTCG. The AO relied on a report from the Directorate of Income-tax (Investigation), Kolkata, which detailed the modus operandi of rigging prices of penny stocks. The tribunal noted that the AO did not provide the appellants with an opportunity to cross-examine the evidence and statements relied upon, which violated principles of natural justice.

4. Reliance on Third-Party Statements Without Cross-Examination:
The tribunal observed that the AO relied on statements from third parties without confronting the appellants with these statements for cross-examination. This was a violation of section 142(3) of the Income-tax Act, which mandates that the assessee be given an opportunity to be heard in respect of any material gathered. The tribunal remanded the case back to the AO to comply with this statutory requirement and provide the appellants with all relevant material for cross-examination.

5. Treatment of Sale Transactions as Unexplained Cash Credits Under Section 68:
The AO treated the sale consideration of shares as unexplained cash credits under section 68, based on the investigation report and statements. The tribunal remanded the matter back to the AO for fresh adjudication, emphasizing the need for compliance with section 142(3) and providing the appellants with an opportunity to examine the evidence.

6. Levy of Interest Under Section 234B:
The appellants objected to the levy of interest under section 234B. The tribunal did not specifically address this issue, indicating that the primary focus was on the substantive issues of the case.

7. Adequacy of Drawings and Disallowance Under Section 14A:
In one of the appeals, the AO added ?1,20,000 towards inadequacy of drawings, which was confirmed by the CIT(A). The tribunal upheld this addition, finding no reason to interfere with the CIT(A)'s finding. Regarding disallowance under section 14A, the tribunal directed the AO to restrict the disallowance to the amount of exempt income earned during the year, allowing the ground partly.

Conclusion:
The tribunal allowed the appeals for statistical purposes, remanding the cases back to the AO for fresh adjudication. The AO was directed to comply with section 142(3) by providing the appellants with all relevant material for cross-examination. The tribunal upheld the addition towards inadequacy of drawings but directed the AO to restrict the disallowance under section 14A to the amount of exempt income earned.

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