2015 (10) TMI 2747 - AT - Income Tax

Addition u/s 68 - bogus LTCG - unexplained share transactions - Held that - There was a direct evidence in the form of purchase of shares by the assessees in financial year 2002-03 on payment made by account payee cheques the reflection of the said shares as investment in the balance-sheets of the assessee as on 31.03.2003 and 31.03.2004 and sale of the said shares in the financial year 2004-05 by the assessee against the payments received again by account payee cheques. The claim of the assessee of these transactions in purchase and sale of shares was also duly supported by the contract notes issued by the concerned brokers. Considering circumstantial evidence brought on record to come to the conclusion that the relevant transactions of purchase and sale of shares giving rising to long term capital gain to the assesses were genuine transactions and the additions made by the Assessing Officer under section 68 by treating the said transactions as bogus were not sustainable. - Decided in favour of assessee.

Summary

Issues Involved:
1. Legitimacy of Long Term Capital Gains (LTCG) claimed by the assessees.
2. Validity of Assessing Officer's (AO) reliance on documents seized from a third party.
3. Applicability of Section 68 of the Income Tax Act for treating LTCG as unexplained cash credits.
4. Right to cross-examine the third party whose statements were used as evidence.

Detailed Analysis:

1. Legitimacy of Long Term Capital Gains (LTCG) Claimed by the Assessees:
The primary issue was whether the LTCG claimed by the assessees from the sale of shares of M/s. Continental Fiscal Management Limited and M/s. Swastik Securities & Finance Limited were genuine. The assessees argued that these transactions were legitimate, supported by contract notes, payments through account payee cheques, and reflected in their balance sheets. They contended that the transactions were conducted through recognized stock exchanges and met all conditions for LTCG.

2. Validity of Assessing Officer's (AO) Reliance on Documents Seized from a Third Party:
The AO based his findings on documents seized from Shri Shyamsukha, which indicated that cash was converted into cheques through alleged accommodation entries. Shri Shyamsukha admitted in his statement under Section 132(4) that he facilitated these bogus transactions for a commission. The AO noted that the details of share transactions found in the seized documents matched the transactions declared by the assessees in their returns, leading him to conclude that the LTCG was bogus.

3. Applicability of Section 68 of the Income Tax Act for Treating LTCG as Unexplained Cash Credits:
The AO invoked Section 68, treating the LTCG as unexplained cash credits, and added these amounts to the assessees' total income. The assessees challenged this, arguing that the AO's reliance on the third party's statement and the seized documents was not sufficient to discredit their genuine transactions supported by direct evidence.

4. Right to Cross-Examine the Third Party Whose Statements Were Used as Evidence:
The assessees also contended that they were not given an opportunity to cross-examine Shri Shyamsukha, whose statements were pivotal in the AO's findings. They argued that adverse inferences could not be drawn against them without this opportunity.

Tribunal's Findings:
The Tribunal noted that similar issues were previously decided in favor of other assessees in comparable cases, where the Tribunal had accepted the genuineness of LTCG claims. The Tribunal observed that the direct evidence provided by the assessees, such as contract notes, payments through account payee cheques, and the reflection of shares in their balance sheets, outweighed the circumstantial evidence and statements from the third party.

The Tribunal emphasized that the AO's findings were based on circumstantial evidence and the statement of a third party, whereas the assessees provided direct evidence supporting the genuineness of their transactions. The Tribunal found no reason to deviate from its earlier decisions in similar cases and accepted the assessees' claims for LTCG as genuine.

Conclusion:
The Tribunal concluded that the additions made by the AO under Section 68, treating the LTCG as bogus, were not sustainable. The appeals were allowed, and the additions were deleted. The Tribunal's decision was consistent with its earlier rulings in similar cases, reinforcing the principle that direct evidence should be given precedence over circumstantial evidence and third-party statements when assessing the genuineness of transactions.

Order:
The Tribunal pronounced the order in favor of the assessees on October 9, 2015, allowing all four appeals and deleting the additions made by the AO.