2015 (1) TMI 1220 - HC - Income Tax

Appeal Dismissed: Unexplained Cash Credit as Capital Gain Upheld

The Commissioner of Income Tax-16. Versus Mrs. Kesar A. Gada

The appeal challenging the addition of unexplained cash credit as long-term capital gain under Section 68 of the Income Tax Act for Assessment Year ... Unexplained cash credit u/s. 68 - ITAT deleted the addition - Held that:- The transaction of purchase and sale of shares done by the respondent – assessee was genuine. Consequently, it was also held by both the Authorities that addition under Section 68 of the Act was not called for. We find that the impugned order has been passed relying upon the decision of this Court in the case of “Mukesh R. Marolia” [2005 (12) TMI 457 - ITAT MUMBAI] and the findings are essentially findings of facts. Hence, no substantial question of law arises for our consideration. - Decided against revenue Issues:Challenge to order under Section 260A of the Income Tax Act, 1961 regarding addition of unexplained cash credit as long-term capital gain. Justification for upholding the order by the Tribunal based on the decision of the Jurisdictional High Court of Bombay.Analysis:1. The appeal by the Revenue challenges the Tribunal's order regarding the addition of unexplained cash credit as long-term capital gain under Section 68 of the Income Tax Act, 1961 for Assessment Year 2006-07. The respondent sold shares and declared income, but the Assessing Officer disallowed the capital gain claim and added it as unexplained cash credit. The Commissioner of Income Tax (Appeals) allowed the respondent's appeal, citing confirmation of transactions and banking channel payments. The Tribunal upheld this decision, emphasizing the genuineness of the share transactions and reliance on the decision in the case of 'Mukesh R. Marolia Vs. ACIT.'2. The main issue revolves around the Tribunal's reliance on the decision of the Jurisdictional High Court of Bombay in the case of 'Mukesh R. Marolia' despite the department not accepting it and recommending Special Leave Petition (SLP) to the Central Board of Direct Taxes (CBDT). Both the Commissioner of Income Tax (Appeals) and the Tribunal concluded that the share transactions were genuine and no addition under Section 68 of the Act was necessary. The Tribunal's decision was based on facts and the precedent set by the High Court's judgment in the mentioned case. Consequently, the appeal was dismissed as no substantial question of law was found, and the impugned orders were not deemed perverse to warrant interference by the Court.