2022 (2) TMI 1342 - AT - Income Tax

Unexplained credits u/s. 68 - bogus long term capital gain - disallowance of claim of exempted long term capital gain on sale of shares - HELD THAT - Issue on hand is squarely covered by the order of this ITAT in the group case of the assessee i.e. Smt. Meera Alpesh Kanugo 2022 (9) TMI 809 - ITAT AHMEDABAD held that the claim of the assessee cannot be denied on the basis of presumption and surmises in respect of penny stock by disregarding the direct evidences on record relating to the sale/purchase transactions in shares supported by broker s contract notes confirmation of receipt of sale proceeds through regular banking channels and the demat account. There is nothing on record which could suggest that the shares were never transferred in the name of the assessee. There is also nothing on record to suggest that the shares were never with the assessee. On the contrary the shares were thereafter transferred to demat account. The demat account was in the name of the assessee from where the shares were sold. In our understanding of the facts if the shares were of some fictitious company which was not listed in the Bombay Stock Exchange/National Stock Exchange the shares could never have been transferred to demat account. Shri Akash Agarwal may have been providing accommodation entries to various persons but so far as the facts of the case in hand suggest that the transactions were genuine and therefore no adverse inference should be drawn.Further the alleged operators have not named the assessee as a beneficiary in their statements. - Decided in favour of assessee.

Summary

Issues Involved:
1. Disallowance of claim of exempted long-term capital gain on sale of shares.
2. Treatment of long-term capital gain as unexplained credits under Section 68 of the Income Tax Act, 1961.

Issue-Wise Detailed Analysis:

1. Disallowance of Claim of Exempted Long-Term Capital Gain on Sale of Shares:

The core issue revolves around the disallowance of the claim of exempted long-term capital gain (LTCG) on the sale of shares of Shree Shaleen Textiles Ltd. The assessee had declared a taxable income and claimed exemption on LTCG from the sale of shares, which was disallowed by the Assessing Officer (AO). The AO's disallowance was based on several grounds including the modus operandi of the transactions, non-conformity with SEBI guidelines, and suspicion of insider trading and price rigging. The AO argued that the transactions were not genuine and were part of a scheme to convert unaccounted money into accounted form.

The assessee contested this disallowance, providing various documents to substantiate the genuineness of the transactions. These included purchase and sale documents, contract notes, and evidence of payments through banking channels. The assessee argued that the AO's decision was based on assumptions and the report of the Investigation Wing without concrete evidence. The assessee also highlighted that no opportunity for cross-examination of the alleged operators was provided, which is a violation of natural justice.

2. Treatment of Long-Term Capital Gain as Unexplained Credits under Section 68 of the Income Tax Act, 1961:

The AO treated the declared LTCG as unexplained cash credits under Section 68 of the Act. This treatment was based on the findings from investigations and statements from brokers and operators involved in providing accommodation entries for bogus LTCG. The AO cited that the transactions were part of a larger scheme involving penny stocks and insider trading to artificially inflate share prices.

The assessee appealed against this treatment, arguing that the transactions were genuine and supported by documentary evidence. The assessee relied on several judicial precedents where similar disallowances were overturned due to lack of concrete evidence and violation of principles of natural justice. The assessee emphasized that the AO failed to establish a direct link between the assessee and the alleged scheme of bogus LTCG.

Judgment:

The Tribunal, after hearing the rival contentions and examining the materials on record, found that the issue on hand was squarely covered by several judicial precedents where similar additions were deleted. The Tribunal noted that the AO's disallowance was based on suspicion and assumptions rather than concrete evidence. It was highlighted that the AO did not provide the opportunity for cross-examination, which is a serious flaw and a violation of principles of natural justice.

The Tribunal referred to various cases where the courts held that mere suspicion or the theory of human behavior cannot override concrete evidence. The Tribunal cited the Delhi High Court's decision in the case of PCIT vs. Smt. Krishna Devi, where it was held that astounding jumps in share prices alone do not justify treating LTCG as bogus without material evidence.

The Tribunal also referred to the case of Mrs. Pratibha S. Mhatre and other similar cases where the ITAT had allowed the claim of exemption under section 10(38) of the Act despite the AO's reliance on investigation reports and statements of operators.

In conclusion, the Tribunal allowed the appeals filed by the assessee, holding that the AO and CIT(A) failed to provide concrete evidence to support the disallowance and the treatment of LTCG as unexplained credits. The Tribunal emphasized the need for adherence to principles of natural justice and reliance on concrete evidence rather than assumptions and suspicions.

Separate Judgments Delivered:

The judgment was delivered for multiple appeals involving different assessees but with identical issues. The findings and conclusions for each appeal were consistent and based on the same principles and judicial precedents.

Final Order:

All the appeals filed by the different assessees were allowed. The disallowance of the claim of exempted LTCG and the treatment of LTCG as unexplained credits under Section 68 were overturned. The Tribunal pronounced the order in the court on 28/02/2022 at Ahmedabad.