2017 (10) TMI 522 - AT - Income Tax

Tax Tribunal modifies assessments, orders deletion of additions under Sections 68 & 69C, recalculates interest, dismisses unsecured loan issue.

Manish Kumar Baid And Mahendra Kumar Baid Versus ACIT, Cir-35, Kolkata

The Tribunal partly allowed the appeals by directing the deletion of additions under Sections 68 and 69C and the disallowance under Section 14A. The ... Addition u/s 68 - sale proceeds of shares of Kailash Auto Finance Limited (KAFL) treating the same as income from undisclosed sources - rejecting the assessee’s claim of long term Capital Gains (LTCG) on sale of those shares - claim of exemption u/s 10(38) - Held that:- SEBI order did mention the list of 246 beneficiaries of persons trading in shares of KAFL, wherein, the assessee and/or Ashita Stock Broking Ltd’s name is not reflected at all. Hence the allegation that the assessee and/or Ashita Stock Broking Ltd. getting involved in price rigging of KAFL shares fails. We also find that even the SEBI’S order heavily relied upon by the Id AO clearly states that the company KAFL had performed very well during the year under appeal and the P/E ratio had increased substantially. Thus we hold that the said orders of SEBI is not evidence against the assessee. Much less to speak of direct evidence. The enquiry by the Investigation wing and/or the statements of several persons recorded by the Investigation Wing in connection with the alleged bogus transactions in the shares of KAFL also did not implicate the assessee and/or his broker. It is also a matter of record that the assessee furnished all evidences in the from of bills, contract notes, demat statements and the bank accounts to prove the genuineness of the transactions relating to purchase and sale of shares resulting in LTCG. These evidences were neither found by the AO to be false or fabricated. The facts of the case and the evidences in support of the assessee’s to be false or fabricated. The facts of the case and the evidences in support of the assessee’s case clearly support the claim of the assessee that the transactions of the assessee were bonafide and genuine and therefore the AO was not justified in rejecting the assessee’s claim of exemption under section 10(38) of the Act. AO was not justified in assessing the sale proceeds of shares of KAFL as undisclosed income of the assessee u/s 68 of the Act. - Decided in favour of the assessee. Unexplained expenditure u/s 69C - assessee must have incurred commission expenses @ 5% of the LTCG - Held that:- As already held that the transactions relating to LTCG were genuine and not the accommodation entries as alleged by the Id AO. Consequently the addition u/s 69C of the Act is hereby directed to be deleted. We accordingly hold that the reframe question no. 2 raised hereinabove is decided in the negative and in favour of the assessee. Disallowance u/s 14A - Held that:- AO did not record any satisfaction in terms of section 14A of the Act, We also find that Demat expenses were not claimed by the assessee in the return filed. We hold that the Id AO ought to have recorded primarily his satisfaction as mandated in terms of section 14A(2) of the Act and Rule 8D(1) of the Rules and without resorting to the same, he ought not to have proceeded directly as per Rule 2D(2) of the Rules. Only if the test provided in Rule 8D(1) of the Rules fail, the Id AO is authorized in law to proceed with the computation mechanism provided in Rule 8D(2) of the Rules. In view of this we hold that the Id AO was not justified in invoking the provisions of section 14A of the Act read with Rule 8d of the Rules, the disallowance made by the Id AO directed to be deleted - Decided in favour of assessee. Issues Involved:1. Addition under Section 68 of the Income Tax Act for sale proceeds of shares of Kailash Auto Finance Limited (KAFL).2. Addition under Section 69C for presumed commission expenses related to the alleged bogus Long Term Capital Gain (LTCG) transactions.3. Disallowance under Section 14A read with Rule 8D.4. Charging of interest under Sections 234A, 234B, and 234C.Issue-wise Detailed Analysis:1. Addition under Section 68 for Sale Proceeds of KAFL Shares:The primary issue was whether the Commissioner of Income Tax (Appeals) [CIT(A)] was justified in upholding the addition made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, treating the sale proceeds of KAFL shares as income from undisclosed sources, rejecting the assessee's claim of LTCG. The AO suspected the genuineness of the transactions due to the extraordinary gains and the price movement of KAFL shares, which seemed beyond human probabilities. The AO's investigation included statements from various individuals and entities, financial analysis of KAFL, and reliance on SEBI orders indicating price manipulation and artificial demand creation. However, the assessee provided substantial documentary evidence, including purchase bills, bank statements, demat statements, and contract notes, to support the genuineness of the transactions. The Tribunal found that the AO's conclusions were based on suspicion and presumptions without concrete evidence implicating the assessee. The Tribunal noted that the amalgamation of CPAL with KAFL was approved by the High Court and that the SEBI orders did not name the assessee or his broker as beneficiaries of the alleged accommodation entries. Therefore, the Tribunal held that the AO was not justified in treating the sale proceeds as undisclosed income under Section 68.2. Addition under Section 69C for Presumed Commission Expenses:The second issue was whether the CIT(A) was justified in upholding the addition under Section 69C, presuming that the assessee incurred commission expenses at 5% of the LTCG for arranging the alleged bogus LTCG. The Tribunal found that there was no evidence of the assessee incurring such expenses. Since the Tribunal had already held that the transactions resulting in LTCG were genuine, it directed the deletion of the addition under Section 69C, concluding that the AO's presumption of commission expenses was unfounded.3. Disallowance under Section 14A read with Rule 8D:The third issue was the disallowance made by the AO under Section 14A read with Rule 8D, which the CIT(A) upheld. The assessee argued that the AO did not record any satisfaction as required under Section 14A(2) before making the disallowance. The Tribunal found merit in the assessee's argument, noting that the AO did not record the necessary satisfaction and that the demat expenses were not claimed by the assessee. The Tribunal held that the AO should have recorded his satisfaction based on the assessee's accounts before proceeding with the computation under Rule 8D. Consequently, the Tribunal directed the deletion of the disallowance under Section 14A.4. Charging of Interest under Sections 234A, 234B, and 234C:The final issue was the charging of interest under Sections 234A, 234B, and 234C, which the CIT(A) upheld. The Tribunal noted that the charging of interest under these sections is mandatory and consequential to the final assessed tax. Therefore, the AO was directed to recalculate the interest based on the revised assessed tax after giving effect to the Tribunal's order.Additional Issue in ITA No. 1236/Kol/2017:In the case of Mr. Manish Kumar Baid, an additional issue related to the addition of Rs. 2,00,000 under Section 68 for an unsecured loan from Smt. Manju Devi Dagar and the consequential disallowance of interest of Rs. 51,929 was raised. However, this ground was not pressed by the assessee during the hearing due to the smallness of the amount, and it was dismissed accordingly.Conclusion:The appeals were partly allowed, with the Tribunal directing the deletion of additions under Sections 68 and 69C and the disallowance under Section 14A. The charging of interest under Sections 234A, 234B, and 234C was to be recalculated based on the revised assessed tax. The additional issue in ITA No. 1236/Kol/2017 was dismissed as not pressed.