2018 (10) TMI 1914 - AT - Income Tax

Bogus LTCG - unexplained income u/s.68 - denial of exemption of long term capital gains arising on transfer of shares claimed u/s.10(38) -importance of providing an opportunity to cross examine the witness - HELD THAT - As transactions claimed by the assessee whether real or sham requires a revisit by the ld. Assessing Officer. Similar directions as given in the cases of Vimalchand Gulabchand Praveen Chand Gatraj Jain Sons and Mahendra Kumar Bhandari 2018 (4) TMI 701 - ITAT CHENNAI read along with the directions given in the case of Heerachand Kanunga 2018 (6) TMI 1329 - ITAT CHENNAI are given here also. Useful reference may be made to the law laid down by Hon ble Apex Court in the case of CIT vs. Sunita Dhadda 2018 (3) TMI 1610 - SC ORDER while affirming a judgment of Hon ble Rajasthan High Court in the case of CIT vs. Smt. Sunita Dhadda 2017 (7) TMI 1164 - RAJASTHAN HIGH COURT where the importance of providing an opportunity to cross examine the witness has been stressed. Their lordship held that this was an important constituent of natural justice - Appeal of assessee partly allowed for statistical purposes.

Summary

Issues Involved:
1. Denial of exemption of long-term capital gains under Section 10(38) of the Income Tax Act, 1961.
2. Treatment of a sum as unexplained income under Section 68 of the Income Tax Act, 1961.

Detailed Analysis:

1. Denial of Exemption of Long-term Capital Gains under Section 10(38):
The assessee sold 31,500 shares of M/s. Kailash Auto Finance Ltd. for Rs. 11,02,118 and claimed long-term capital gains of Rs. 10,70,618 as exempt under Section 10(38) of the Income Tax Act, 1961. The lower authorities disbelieved the sale, relying on reports from the Directorate of Income Tax (Investigation) in Kolkata and Delhi, which classified M/s. Kailash Auto Finance Ltd. as a penny stock company. The assessee argued that the purchase of shares was genuine, albeit off-market, and that the sale was conducted through a recognized stock exchange. It was contended that the statements and reports used by the authorities were not disclosed to the assessee, violating principles of natural justice. The interim SEBI report, which was initially adverse, was later vacated, further supporting the assessee's claim.

2. Treatment of a Sum as Unexplained Income under Section 68:
The lower authorities treated Rs. 11,02,118 as unexplained income under Section 68. The assessee argued that the lower authorities relied on an interim SEBI report and statements from various persons without providing the assessee an opportunity to respond or cross-examine, which is against the principles of natural justice. The Tribunal noted that similar cases involving M/s. Kailash Auto Finance Ltd. had been remitted back for reconsideration, emphasizing the need for adherence to natural justice.

Tribunal's Observations:
The Tribunal referenced previous cases where the issue of exemption under Section 10(38) for sales of shares of M/s. Kailash Auto Finance Ltd. was reconsidered. It noted that the lower authorities had relied on the SEBI order dated 29.03.2016 and statements from individuals like Mr. Sunil Dokania, which were not made available to the assessee. The Tribunal underscored the necessity of providing the assessee an opportunity to examine these statements and reports.

Tribunal's Decision:
The Tribunal set aside the orders of the lower authorities and remitted the issue back to the Assessing Officer for fresh consideration. It emphasized the need for the Assessing Officer to adhere to the rules of natural justice by providing the assessee with all relevant statements and reports and allowing cross-examination of the witnesses. The Tribunal also referenced the importance of providing an opportunity to cross-examine witnesses as highlighted by the Hon’ble Apex Court in the case of CIT vs. Sunita Dhadda.

Conclusion:
The appeal of the assessee was partly allowed for statistical purposes, with the Tribunal directing a fresh examination of the transactions to determine if the claim of capital gains was genuine or bogus, ensuring compliance with the principles of natural justice.