2018 (10) TMI 1913 - AT - Income Tax

Tribunal rules in favor of assessee, deleting additions under Section 68 of Income Tax Act

Navneet Agarwal (HUF) Versus ITO, Ward-35 (2), Kolkata; Biswanath Agarwal & Sons (HUF) Versus ITO, Ward-34 (1), Kolkata; Biswanath Agarwal Versus ITO, Ward-34 (1), Kolkata

The Tribunal allowed the assessee's appeals, directing the deletion of the addition made under Section 68 of the Income Tax Act, 1961, regarding the sale ... Addition u/s 68 - Addition towards long term capital gains on sale of shares - whether the LTCG on sale of shares of Cressanda Solutions Ltd earned through sale in recognized stock exchange and subjected to payment of STT through a registered share broker could be treated as genuine or not? - conflicting views on an issue for and against - HELD THAT:- As the entire issue with regard to sale of shares of Cressanda Solutions Ltd had been the subject matter of adjudication by this tribunal in the case of Navneet Agarwal, L/H of Later Kiran Agarwal [2018 (8) TMI 509 - ITAT KOLKATA] wherein we are bound to consider and rely on the evidence produced by the assessee in support of its claim and base our decision on such evidence and not on suspicion or preponderance of probabilities. No material was brought on record by the AO to controvert the evidence furnished by the assessee. Under these circumstances, we accept the evidence filed by the assessee and allow the claim that the income in question is a bona fide Long Term Capital Gain arising from the sale of shares and hence exempt from income tax. We direct the ld AO to delete the addition made u/s 68 of the Act in respect of sale consideration of sale of shares and the corresponding addition towards commission income. Accordingly, the grounds raised by the assessee are allowed in all the appeals herein before us. - Decided in favour of assessee. Issues Involved:1. Whether the addition made towards long-term capital gains (LTCG) on the sale of shares was justified.2. Whether the sale consideration received on the sale of shares could be treated as unexplained cash credit under Section 68 of the Income Tax Act, 1961.Detailed Analysis:1. Justification of Addition Towards Long-Term Capital Gains (LTCG):The assessee filed a return for the Assessment Year 2014-15, declaring a total income of Rs. 17,79,571 after claiming exempt LTCG of Rs. 2,19,33,154 on the sale of listed equity shares of Cressanda Solutions Ltd. The shares were initially purchased from Smart Champs IT & Infra Limited, which later merged with Cressanda Solutions Ltd. The shares were sold through a recognized stock exchange, and the transactions were subjected to Securities Transaction Tax (STT).The Assessing Officer (AO) treated the LTCG as bogus, citing reasons such as the unjustified huge increase in the share price, artificial price rigging, and the financials of Cressanda Solutions Ltd not supporting such an increase. The AO's conclusion was based on the report of the investigation wing, which suggested that the stock had been converted into a penny stock. Consequently, the AO added the sale consideration as unexplained cash credit under Section 68 and included a commission component of Rs. 43,866 as income.The assessee argued that the transactions were genuine, supported by primary documents evidencing the purchase and sale of shares. The assessee contended that the shares were sold based on prevailing market prices, and there was no evidence to suggest involvement in price rigging. The assessee also highlighted that the broker was registered with SEBI and no fault was found by any investigating agency.2. Treatment of Sale Consideration as Unexplained Cash Credit Under Section 68:The AO's action was based on the presumption that the increase in share price was artificial and orchestrated by some market operators. However, the assessee provided substantial evidence, including contract notes, delivery instructions, ledger accounts, bank statements, Form No. 10DB, and demat statements, to demonstrate the genuineness of the transactions.The Tribunal noted that the AO's conclusions were based more on presumption than on factual evidence. The Tribunal emphasized that the assessment must be completed based on records and materials available before the assessing authority. The Tribunal also referred to various judicial precedents, including the decisions of the Hon'ble Punjab & Haryana High Court and the Hon'ble Bombay High Court, which supported the assessee's claim in similar circumstances.The Tribunal found that the assessee had made genuine investments and that the transactions were duly recorded and supported by evidence. The Tribunal rejected the AO's reliance on general observations and reports without specific evidence against the assessee. The Tribunal also highlighted the importance of providing an opportunity for cross-examination when relying on third-party statements.Conclusion:The Tribunal concluded that the AO had failed to bring any material evidence to prove that the transactions were collusive or bogus. The Tribunal held that the documents provided by the assessee, including contract notes, demat statements, and bank statements, were credible and supported the genuineness of the transactions. The Tribunal directed the AO to delete the addition made under Section 68 and the corresponding addition towards commission income.Order:The appeals of the assessee were allowed, and the Tribunal directed the deletion of the addition made under Section 68 of the Income Tax Act, 1961, in respect of the sale consideration of shares and the corresponding addition towards commission income.