2022 (9) TMI 155 - AT - Income Tax

Validity of Reopening of assessment u/s 147 - addition u/s 68 - whether original return of income was not taken up for scrutiny assessment? - HELD THAT - AO noted that the assessee has not disclosed the above transaction in the return of income filed. After appraisal of these materials on record, there is enough reason to believe that the assessee has clearly failed to disclose all material facts for determination of income. This information along with the material on record constitutes a tangible material to form the belief that the income assessable to tax and claimed as exempt from tax has escaped assessment. Once the original return of income was not taken up for scrutiny assessment, then the said information and facts discovered by the Investigation Wing Kolkata constitutes a material on the basis of which the AO can reasonably form a belief that the income in the shape of long term capital gain claimed as exempt has escaped assessment within the meaning of section 147 - At the stage of reopening of the assessment what is required is prima facie reason to believe that income assessable to tax has escaped assessment and the AO is not required to establish the fact by legal evidence or conclusion. Accordingly we do not find any error or illegality in the impugned order of CIT (A) qua this issue. This ground of the assessee is dismissed. Bogus sale of shares claimed u/s 10(38) - Penny stock - As in the absence of any contrary material or evidence brought on record by the AO, the transaction of purchase and sale of the shares in question cannot be held as bogus merely on the basis of Report of the Investigation Wing of the Department in some other cases where some persons were found indulged in providing accommodation entry, and further it cannot be held that the assessee has introduced his own unaccounted money by way of bogus long term capital gain. Taking into consideration various documentary evidences produced by the assessee in support of his claim and further relying upon various decisions of this Tribunal as well as the decision of Hon ble Jurisdictional High Court including the decision in case of CIT vs. Pooja Agarwal 2017 (9) TMI 1104 - RAJASTHAN HIGH COURT as well as in case of PCIT vs. Pramod Jain Others 2018 (2) TMI 300 - ITAT JAIPUR . we allow the claim of exemption under section 10(38) of the Act and accordingly delete the addition made by the AO. The order of ld. CIT (A) is set aside. Commission paid for the accommodation entries - As when we have given a finding that the transaction of purchase and sale of shares and consequential Long Term Capital Gain cannot be treated as bogus, then the addition made by the AO on account of notional commission paid treating the same as undisclosed expenditure under section 69C will not be sustainable being consequential hence the same is deleted.

Summary

Issues Involved:
1. Validity of initiation of proceedings under section 147/148 of the Income Tax Act.
2. Addition made under section 68 on account of sale of shares claiming exempt Long Term Capital Gain (LTCG) under section 10(38).
3. Addition made under section 69C on account of commission.
4. Opportunity for cross-examination of the broker, promoters, and other persons who gave statements.
5. Consideration of additional written submissions and reliance on the Delhi ITAT judgment in a similar case.

Detailed Analysis:

1. Validity of Initiation of Proceedings under Section 147/148:
The return of income filed by the assessee under section 139 was processed under section 143(1) at a total income of Rs. 70,260/-. The AO received information from the Directorate of Investigation, Kolkata, about an organized racket generating bogus LTCG entries in penny stocks. The AO noted that SEBI had passed orders on the manipulation of the share market and banned trading in certain scrips. The AO found that the assessee was one of the beneficiaries of such bogus LTCG. The AO examined the evidence and found that the assessee had not disclosed the transaction in the return of income. The AO concluded that there was enough reason to believe that the income assessable to tax had escaped assessment. The Tribunal upheld the initiation of proceedings under section 147/148, stating that the AO had a prima facie reason to believe that income assessable to tax had escaped assessment.

2. Addition under Section 68 on Account of Sale of Shares Claiming Exempt LTCG under Section 10(38):
The assessee claimed exempt LTCG of Rs. 13,70,805/- on the sale of shares of Nouvea Multi Media Ltd. (NMML). The AO concluded that the LTCG was a bogus transaction representing unaccounted money routed back to the assessee. The AO added Rs. 13,70,805/- to the total income under section 68. The assessee provided various documents to support the genuineness of the transaction, including purchase bills, bank statements, demat account statements, and broker notes. The Tribunal found that the AO did not bring any contrary material or evidence to show that the transaction was bogus. The Tribunal noted that the assessee had discharged the onus by providing all relevant documentary evidence. The Tribunal deleted the addition made by the AO under section 68, stating that the AO's conclusion was based on mere suspicion without any cogent material.

3. Addition under Section 69C on Account of Commission:
The AO added Rs. 82,248/- under section 69C on account of commission, based on the assumption that the assessee paid commission for obtaining bogus LTCG entries. The Tribunal found that since the transaction of purchase and sale of shares and the consequential LTCG were genuine, the addition on account of notional commission paid was not sustainable. The Tribunal deleted the addition made under section 69C.

4. Opportunity for Cross-Examination:
The assessee contended that the AO did not provide an opportunity for cross-examination of the broker, promoters, and other persons who gave statements. The Tribunal noted that the AO relied on statements without providing an opportunity for cross-examination, which violated the principles of natural justice. The Tribunal emphasized that statements alone could not be the basis for addition without corroborative evidence. The Tribunal found that the AO's reliance on statements without cross-examination was not justified.

5. Consideration of Additional Written Submissions and Reliance on Delhi ITAT Judgment:
The assessee argued that the CIT(A) did not consider the additional written submissions and relied on the Delhi ITAT judgment in a similar case where the addition was deleted. The Tribunal considered the additional submissions and found that the assessee had provided sufficient evidence to substantiate the genuineness of the transactions. The Tribunal also referred to various judicial pronouncements supporting the assessee's case. The Tribunal concluded that the addition made by the AO was not justified and deleted the same.

Conclusion:
The Tribunal allowed the appeal of the assessee, deleting the additions made under sections 68 and 69C, and upheld the validity of the initiation of proceedings under section 147/148. The Tribunal emphasized the importance of providing an opportunity for cross-examination and the need for cogent material evidence to support the AO's conclusions.