2014 (2) TMI 1205 - HC - Income Tax

Addition u/s 68 - receipt of accommodation entry - Held that - ITAT and CIT(A) concluded that AO failed to show that the transaction for purchase and sale of shares was bogus and the appellant paid cash to the broker for availing accommodation entry in the form of sale proceeds of shares. Suspicion strange coincidences and grave doubts how so ever strong it may be cannot take place of legal proof. Therefore the AO erred in treating the entire transaction of long term capital gains as a sham transaction and bring it to tax as unexplained cash credit u/s 68 of the Income tax Act 1961. The findings as concurrently recorded by the CIT(A) and the ITAT that addition under Section 68 of the Act was not sustainable remain essentially in the realm of appreciation of evidence. The Appellate Authorities have returned the finding of fact in favour of the assessee after due appreciation of evidence on record on relevant considerations and on sound reasonings. The finding neither appears suffering from any perversity nor is of such nature that cannot be reached at all. - Decided in favour of assessee.

Issues Involved:

1. Legitimacy of Long Term Capital Gain (LTCG) from the sale of shares.
2. Addition of Rs. 37,77,847/- towards transactions of purchase and sale of shares.
3. Addition of Rs. 1,88,890/- towards alleged undisclosed commission paid in cash.
4. Application of Section 68 of the Income Tax Act, 1961.
5. Relevance of the Supreme Court decision in McDowell and Co. Ltd. Vs. Commercial Tax Officer.

Detailed Analysis:

1. Legitimacy of Long Term Capital Gain (LTCG) from the sale of shares:

The respondent-assessee declared LTCG of Rs. 37,77,847/- from the sale of shares, claiming it as exempt under Section 10(38) of the Income Tax Act, 1961. The AO questioned the legitimacy of these gains, suspecting manipulation by the stock broker due to the unusual rise in share prices within a short period. However, both the CIT(A) and ITAT found the transactions genuine, supported by substantial evidence like broker's notes, contract notes, cash book extracts, balance sheets, and share certificates. The appellate authorities concluded that the AO's suspicions were based on presumptions without concrete proof.

2. Addition of Rs. 37,77,847/- towards transactions of purchase and sale of shares:

The AO added Rs. 37,77,847/- to the assessee's income, treating the transactions as sham. The CIT(A) and ITAT, after thorough examination, found that the AO failed to provide evidence against the genuineness of the transactions. The shares were purchased and sold through recognized brokers, and the transactions were duly documented and dematerialized. The appellate authorities held that the AO's additions were unjustified and based on mere suspicions.

3. Addition of Rs. 1,88,890/- towards alleged undisclosed commission paid in cash:

The AO presumed that the assessee paid an undisclosed commission of Rs. 1,88,890/- to the broker for accommodation entries. The CIT(A) and ITAT found no evidence to support this claim. The assessee provided broker notes and bank statements showing receipt of sale proceeds through account payee cheques. The appellate authorities confirmed the deletion of this addition, emphasizing the lack of evidence from the AO.

4. Application of Section 68 of the Income Tax Act, 1961:

The AO invoked Section 68, treating the LTCG as unexplained cash credit. The CIT(A) and ITAT rejected this, stating that the AO did not prove the transactions as fabricated or fictitious. The appellate authorities noted that the AO's reliance on returned notices, delayed payments, and discrepancies in share certificates were insufficient to negate the transactions in the face of overwhelming evidence provided by the assessee.

5. Relevance of the Supreme Court decision in McDowell and Co. Ltd. Vs. Commercial Tax Officer:

The Revenue cited McDowell's case, arguing against the use of dubious tax planning methods. However, the High Court found this case inapplicable, as the present issue involved the genuineness of share transactions, not the avoidance of tax through dubious methods. The appellate authorities' findings were based on detailed examination and relevant considerations, distinguishing the present case from McDowell's fact situation.

Conclusion:

The High Court concluded that no substantial question of law was involved, and the appeal did not merit admission. The findings of the CIT(A) and ITAT were based on thorough examination and relevant considerations, and the AO's suspicions were unsupported by concrete evidence. The appeal was dismissed, affirming the genuineness of the share transactions and the deletion of the additions under Section 68 of the Income Tax Act, 1961.

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