2025 (4) TMI 263 - AT - Income Tax

Addition u/s 68 - bogus capital gains from the sale of shares and the denial of exemption u/s 10(38) - HELD THAT - We note that the share scrip M/s PS IT Infra Services Ltd is stated as a tainted scrip by the AO relying on the investigation report of DDIT Inv 3(3) Kolkata but no such specific evidence was brought in the record. AO only on the basis of the surmises and conjectures made the addition under section 68. The assessee is a regular trader of the shares and also dealt with the market. There is no evidence that assessee is involved in the price rigging with any or about the scrip mentioned by the SEBI. The nature of company is public limited and huge amount is invested by the public. The assessee himself regular trader of share and continued the same profession since long. The evidence which are submitted by the assessee is never be discarded by any of the revenue authorities. We respectfully relied on the order of Renu Agarwal 2023 (7) TMI 288 - SC ORDER and Vikram N Chandan 2024 (8) TMI 221 - ITAT MUMBAI Related to this scrip the ITAT Mumbai Bench has already taken the view in favour of the assessee in case of Bhadresh Mansukhlal Dudhediya 2021 (1) TMI 361 - ITAT MUMBAI We respectfully relied in the case of Pr. CIT v. Ziauddin A Siddique 2022 (3) TMI 1437 - BOMBAY HIGH COURT held that the AO also has not criticized the documentation involving the sale and purchase of shares. The Tribunal has also come to a finding that there is no allegation against assessee that it has participated in any price rigging in the market on the shares. AO did not able to bring any evidence related to the involvement of assessee in price rigging or any cash trail related proof of rotation of assessee s own cash. Only on general view the addition can not be sustained. Decided in favour of assessee.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal were:

1. Whether the assessment orders passed by the Learned Assessing Officer (Ld. AO) and upheld by the Learned Commissioner of Income Tax (Appeals) (Ld. CIT(A)) violated the principles of natural justice.

2. Whether the proceedings and the assessment orders were valid under the law and judicial precedents.

3. Whether the additions made under Section 68 of the Income-tax Act, 1961, for alleged bogus capital gains from the sale of shares and the denial of exemption under Section 10(38) were justified.

4. Whether the addition of Rs. 80,359/- under Section 69C as unexplained expenditure was sustainable.

ISSUE-WISE DETAILED ANALYSIS

1. Violation of Natural Justice

Relevant Legal Framework and Precedents: The principles of natural justice require that parties be given a fair opportunity to present their case and that decisions be made without bias.

Court's Interpretation and Reasoning: The Tribunal noted the assessee's contention that the assessment was made without considering relevant evidence and submissions, and without providing an opportunity to cross-examine third parties whose statements were relied upon.

Key Evidence and Findings: The assessee argued that the Ld. AO ignored detailed evidence and documents provided, and the Ld. CIT(A) upheld the order without addressing these concerns.

Conclusions: The Tribunal found that the assessment process lacked adherence to natural justice principles, as the assessee was not given a fair opportunity to contest the evidence against them.

2. Validity of Proceedings

Relevant Legal Framework and Precedents: Legal validity of proceedings depends on adherence to statutory provisions and judicial precedents.

Court's Interpretation and Reasoning: The Tribunal examined whether the assessment orders were consistent with the legal requirements and precedents governing such proceedings.

Conclusions: The Tribunal determined that the proceedings were flawed due to procedural lapses, thus affecting their validity.

3. Additions under Section 68 and Denial of Exemption under Section 10(38)

Relevant Legal Framework and Precedents: Section 68 pertains to unexplained cash credits, while Section 10(38) provides exemption for long-term capital gains from the sale of listed shares.

Court's Interpretation and Reasoning: The Tribunal noted that the Ld. AO treated the capital gains as bogus based on an investigation report, without specific evidence against the assessee.

Key Evidence and Findings: The assessee provided substantial documentation supporting the legitimacy of the share transactions, including dematerialization and sale through a recognized stock exchange.

Application of Law to Facts: The Tribunal found that the Ld. AO's reliance on general allegations and assumptions, without concrete evidence, was insufficient to justify the additions.

Treatment of Competing Arguments: The Tribunal considered the assessee's arguments and evidence, contrasting them with the Ld. AO's reliance on general findings.

Conclusions: The Tribunal quashed the additions under Section 68, affirming the genuineness of the transactions and the applicability of the exemption under Section 10(38).

4. Addition under Section 69C

Relevant Legal Framework and Precedents: Section 69C pertains to unexplained expenditure.

Court's Interpretation and Reasoning: The Tribunal found the addition of Rs. 80,359/- as commission for the alleged bogus transaction was based on assumptions without substantive evidence.

Conclusions: The Tribunal held that the addition under Section 69C was unsustainable and should be deleted.

SIGNIFICANT HOLDINGS

The Tribunal held that:

"The Ld. AO did not bring any evidence related to the involvement of the assessee in price rigging or any cash trail related proof of rotation of assessee's own cash. Only on general view the addition cannot be sustained."

The Tribunal established the principle that assessments must be based on specific evidence rather than general assumptions or allegations.

Final determinations on each issue:

1. The assessment orders were found to violate principles of natural justice.

2. The proceedings were deemed invalid due to procedural lapses.

3. The additions under Section 68 were quashed, affirming the legitimacy of the capital gains and the applicability of the exemption under Section 10(38).

4. The addition under Section 69C was deleted as unsustainable.