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2019 (3) TMI 2004 - AT - Income TaxBogus LTCG - unexplained cash credit u/s 68 - denying exemption u/s 10(38) - HELD THAT:- On the issue of claim of exemption u/s.10(38) in respect of long term capital gains, it is noticed that the assessee has not been given any opportunity to prove the genuineness but the assessment has been made based on the evidences collected by the Revenue in the course of the investigation conducted by them on brokers / share broking entities etc. This is not permissible. This being so, in the interest of natural justice, the issue of the genuineness of the transactions require re-adjudication. Since, the right to exemption must be established by those who seek it, the onus therefore lies on the assessee. In order to claim the exemption from payment of income tax, assessee had to put before the Income Tax authorities proper materials which would enable to come to a conclusion. AO must keep in mind that the onus of proving the exemption rests on the assessee. If the A O does have any evidence to the contrary, it is to be put to the assessee for his rebuttal. The internal communications of the Revenue are evidences for drawing an opinion on possible wrong claims but they are not the final evidence. AO shall require the assessee; to establish who, with whom, how and in what circumstances the impugned transactions were carried out etc., to prove that the impugned transactions are actual , genuine etc. The assessee shall comply to the A O’s requirements as per law. On appreciation of all the above aspects, the AO would decide the matter in accordance with law.
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