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2025 (4) TMI 744 - AT - Income TaxUnexplained cash credit u/s 68 and taxable u/s 115BBE - Bogus share transactions - treating the sale proceeds of shares as unexplained cash credit - HELD THAT - Assessee held the shares for around 17 months and sold the same through banking channel and it is a fact that no action has ever been taken by the SEBI or any Investigation Agency against the Assessee herein and it is a fact that the Assessee has produced the relevant documents such as purchase bills of shares bank account statement DP statement and some broker notes in order to establish his claim of LTCG. This fact is duly admitted by the AO in assessment order itself. Therefore in our considered opinion the Assessee has discharged its prima-facie onus cast u/s 68. AO had no base or foundation/corroboration to make the addition in the hands of the Assessee. AO simply relied on the investigation report of the Kolkata Directorate and the SEBI report and usual rise in the price in which the Assessee has not played any role and therefore it goes to show that the AO made the additions under consideration simply on the conjecture and surmises which at all are not sustainable as per the decision of Ziauddin A Siddique 2022 (3) TMI 1437 - BOMBAY HIGH COURT Hon ble Gujarat High Court in Divyaben Prafulchandra Parmar 2024 (1) TMI 800 - GUJARAT HIGH COURT has also dealt with same scrip i.e. M/s. Sunrise Asian Limited as involved in this case and ultimately affirmed the decision of the Hon ble Tribunal in deletion of the identical addition. Assessee purchased the share through banking channel and held the same for around 17 months and sold the same through online platform and banking channel. The Assessee by filling relevant documents such as purchase bills of shares bank account statement DP statement and some broker notes in order to establish his claim of LTCG has discharged prima-facie onus cast u/s 68. AO had no base or foundation/corroboration to make the addition in the hands of the Assessee but he simply relied on the investigation report of the Kolkata Directorate and the SEBI report and usual rise in the price in which the Assessee has not played any role and it is a fact that no action has ever been taken by the SEBI or any investigation agency against the Assessee herein and therefore it goes to show that the AO made the additions under consideration simply - Appeal filed by the Assessee is allowed.
ISSUES PRESENTED and CONSIDERED
The primary legal issues considered in this judgment include: 1. Whether the addition made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, 1961, treating the sale proceeds of shares as unexplained cash credit, was justified. 2. Whether the addition of commission income under Section 69 of the Act was appropriate. 3. Whether the Assessee was entitled to claim exemption under Section 10(38) of the Act on account of Long Term Capital Gain (LTCG) from the sale of shares. ISSUE-WISE DETAILED ANALYSIS 1. Addition under Section 68 of the Income Tax Act Relevant legal framework and precedents: Section 68 of the Income Tax Act pertains to unexplained cash credits. The burden is on the Assessee to prove the nature and source of such credits. The precedent set by the case of Sumati P. Dayal vs. CIT was considered, where the Supreme Court emphasized the importance of the surrounding circumstances in determining the genuineness of transactions. Court's interpretation and reasoning: The Tribunal found that the Assessee had adequately discharged the prima facie onus under Section 68 by providing purchase bills, bank statements, DP statements, and broker notes. The AO's reliance on the investigation report and the unusual rise in share prices was deemed insufficient to substantiate the addition. Key evidence and findings: The Assessee had purchased shares through a banking channel, held them for 17 months, and sold them through the Bombay Stock Exchange. No adverse action was taken by SEBI or any investigation agency against the Assessee. Application of law to facts: The Tribunal applied the principles established in prior cases, such as PCIT vs. Ziauddin A Siddique, to conclude that the transaction was genuine and the addition under Section 68 was based on conjecture. Treatment of competing arguments: The Tribunal considered the AO's arguments but found them lacking in corroborative evidence. The reliance on third-party reports without direct evidence against the Assessee was insufficient. Conclusions: The Tribunal concluded that the addition under Section 68 was not sustainable and deleted it. 2. Addition of Commission Income under Section 69 Relevant legal framework and precedents: Section 69 deals with unexplained investments. The AO added a commission income, assuming it was related to the alleged bogus transactions. Court's interpretation and reasoning: The Tribunal found no basis for the commission addition, as there was no evidence of the Assessee's involvement in any price rigging or manipulation. Key evidence and findings: The AO's addition was based on a presumption of commission payment, which was not substantiated by evidence. Application of law to facts: The Tribunal noted the lack of direct evidence linking the Assessee to any commission-related activities. Treatment of competing arguments: The Tribunal dismissed the AO's arguments due to a lack of corroborative evidence. Conclusions: The addition under Section 69 was deleted. 3. Exemption under Section 10(38) of the Act Relevant legal framework and precedents: Section 10(38) provides exemption for LTCG arising from the sale of equity shares subject to certain conditions. The Tribunal referred to decisions such as PCIT-1 Vs Divyaben Prafulchandra Parmar, which supported the Assessee's claim. Court's interpretation and reasoning: The Tribunal found that the Assessee met the conditions for exemption under Section 10(38), as the transactions were conducted through recognized stock exchanges and the payments were made through banking channels. Key evidence and findings: The Assessee's documentation was consistent and supported the claim of genuine transactions. Application of law to facts: The Tribunal applied relevant precedents to uphold the Assessee's claim for exemption. Treatment of competing arguments: The Tribunal rejected the AO's reliance on investigation reports, as they lacked direct evidence against the Assessee. Conclusions: The Tribunal upheld the exemption claim under Section 10(38). SIGNIFICANT HOLDINGS The Tribunal's significant holdings include: - The Assessee discharged the prima facie onus under Section 68, and the AO's additions were based on conjecture and not sustainable. - The addition of commission income under Section 69 was unwarranted due to a lack of evidence. - The exemption under Section 10(38) was rightly claimed by the Assessee, as the transactions were genuine and conducted through recognized channels. Verbatim quote: "The Tribunal has not committed any perversity or applied incorrect principles to the given facts... the claim of the assessee for exemption of Long Term Capital Gains under Section 10(38) of the Act cannot be held to be bogus on the basis of presumption in absence of any evidence..." In conclusion, the Tribunal allowed the appeal filed by the Assessee, deleting the additions made by the AO and affirming the Assessee's entitlement to the claimed exemptions.
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