2016 (11) TMI 439 - AT - Income Tax

Tribunal overturns LTCG treatment as undisclosed income, allows appeal

Smt. Falguni Sanghavi Versus ACIT, Circle 16 (2), Mumbai

The Tribunal allowed the appellant's appeal for A.Y. 2004-05, overturning the treatment of LTCG as income from undisclosed sources and the addition under ... Reopening of assessment - income from undisclosed source - LTCG - Held that:- It is not in dispute that the assessee has purchased the 9500 shares of Talent Infoway Ltd. for ₹ 14,655/- vide bill dated 04.03.2003 (contract Note placed at page 23 of the paper book) and that the same have been sold for a total consideration amounting to ₹ 7,08,982/- in the year under consideration on 20.03.2004 and 26.03.2004 (details/summary placed at page 47 to 59 of paper book). Once the date and source of purchase of the said shares and the date and sale consideration thereof are not disputed, in our considered view, the transaction is one of LTCG as declared by the assessee in the return of income for A.Y. 2004-05 and therefore the treatment of the same as income from undisclosed source by the authorities below is incorrect. Accordingly on merits of the issue we hold that the gain of ₹ 6,94,327/- on sale of 95000 shares of Talent Infoway Ltd. by the assessee in the year under consideration is to be assessed under the head long term capital gain and we therefore delete the finding of the authorities below that this income be assessed as undisclosed income alongwith the addition of ₹ 8,679/- under section 69C of the Act on account of alleged commission @1.25% thereon. - Decided in favour of assessee Issues:1. Reopening of assessment under section 147 of the Income Tax Act, 1961.2. Treatment of long term capital gains as income from undisclosed sources.3. Addition under section 69C of the Income Tax Act for alleged commission paid.Reopening of Assessment:The appeal challenged the action of reopening the assessment for A.Y. 2004-05 under section 147 of the Income Tax Act. The appellant argued that the income returned and assessed were the same, and no income chargeable to tax had actually escaped assessment. The appellant contended that the reasons recorded by the Assessing Officer were not based on a correct appreciation of facts and that reliance on a third party's statement could not be the basis for reopening the case. The Tribunal found that the initiation of proceedings under section 147 was academic due to the findings on the subsequent grounds raised by the appellant.Treatment of Long Term Capital Gains:The Assessing Officer treated the long term capital gains (LTCG) earned on the sale of shares as income from undisclosed sources. The CIT(A) upheld this treatment, stating that the appellant was involved in routing unaccounted income through bogus transactions to convert it into LTCG. The Tribunal, after considering the evidence presented by the appellant regarding the purchase and sale of shares, held that the LTCG should be assessed under the head of long term capital gains. The Tribunal concluded that the treatment of LTCG as undisclosed income was incorrect, and the addition made under section 69C for alleged commission was deleted.Addition under Section 69C:The Assessing Officer made an addition under section 69C of the Income Tax Act for alleged commission paid in cash. The appellant argued that all details regarding the purchase and sale of shares were provided, and the addition was made without proper inquiry. The Tribunal, after reviewing the evidence and contentions, found that the transaction of shares was genuine and the addition as undisclosed income was unwarranted. Consequently, the Tribunal allowed the appellant's appeal on grounds 2 and 3, leading to the deletion of the addition made under section 69C.Conclusion:The Tribunal allowed the appellant's appeal for A.Y. 2004-05, overturning the treatment of LTCG as income from undisclosed sources and the addition under section 69C. The Tribunal's decision was based on the genuine nature of the share transaction and the lack of basis for treating the income as undisclosed. The general ground raised by the appellant was not adjudicated upon, and the appeal was allowed based on the findings on the substantive issues raised.