2018 (3) TMI 584 - AT - Income Tax

Tribunal rules in favor of Assessee, upholding long-term capital gains on listed equity shares.

Mohit Hora (HUF) Versus ITO, Ward 2 (5), Gurgaon

The Tribunal allowed the Assessee's appeal, deleting the enhanced addition and upholding the claim of long term capital gains on the sale of listed equity ... Bogus long term capital gain - unexplained cash credit u/s. 68 - Held that:- In support of claim of LTCG, the assessee has provided all the documents relating to sale and purchase which have taken place only through banking channel and are supported by contract note from HDFC Securities and the shares of Unno Industries Ltd. being listed shares on stock-exchange were filed by the assessee before the AO. The shares of assessee were sold through HDFC Securities Ltd. at Bombay Stock Exchange and assessee received sale consideration from HDFC Securities Ltd. after payment of STT and brokerage. However, the AO has not brought on record any material to support its finding that there has been collusion/ connivance between the broker and the assessee for the introduction of assesses own unaccounted money. LTCG claimed by the assessee is resulting from purchases made directly from the seller through a/c payee cheque based on actual delivery of shares, the transaction for sale is through registered broker on the floor of the stock exchange. LTCG of ₹ 33,63,368/- is fully supported by evidence, which in my considered opinion needs to be allowed. The assessee has justified the LTCG as a genuine and bonafide transaction the cost of ₹ 1,14,686/- shall also be allowed as a deduction from the sale consideration. Hence, the enhanced addition is deleted. Issues:1. Disallowance of long term capital gains on sale of listed equity shares under section 10(38) of the Income Tax Act.2. Addition of unexplained credit under section 68 instead of long term capital gain.3. Enhancement of assessed income by a certain amount.4. Reliance on statement recorded by Investigation Wing, Kolkata.Issue 1: Disallowance of long term capital gains on sale of listed equity shares under section 10(38) of the Income Tax Act:The Assessee declared income from long term capital gains (LTCG) on the sale of listed equity shares of a company. The Assessing Officer (AO) treated the LTCG as unaccounted income and added it to the total income under section 68 of the Act. The CIT(A) dismissed the appeal and enhanced the addition. However, the Tribunal found that the LTCG was supported by evidence, including documents of sale and purchase through banking channels. The Tribunal concluded that the LTCG claim was genuine and allowed it, deleting the enhanced addition.Issue 2: Addition of unexplained credit under section 68 instead of long term capital gain:The AO added the LTCG amount as unexplained credit under section 68. The Assessee contended that the source and genuineness of the transaction were established through documentary evidence. The Tribunal agreed, noting that the shares were sold through a registered broker on the stock exchange, and the transaction was supported by evidence of actual delivery of shares. The Tribunal deleted the enhanced addition, considering the LTCG as a bona fide transaction.Issue 3: Enhancement of assessed income by a certain amount:The CIT(A) enhanced the assessed income by a specific amount, which the Assessee argued was impermissible. The Tribunal agreed with the Assessee, stating that the enhancement was not legally justified. The Tribunal deleted the enhanced addition, finding that the Assessee had justified the LTCG as a genuine transaction.Issue 4: Reliance on statement recorded by Investigation Wing, Kolkata:The lower authorities relied on a statement recorded by the Investigation Wing, Kolkata, which the Assessee argued had no relevance to the case. The Tribunal noted that the statement did not establish any collusion or connivance between the broker and the Assessee. The Tribunal found that the LTCG claimed by the Assessee was genuine and supported by evidence, leading to the deletion of the enhanced addition.In conclusion, the Tribunal allowed the Assessee's appeal, deleting the enhanced addition and upholding the claim of long term capital gains on the sale of listed equity shares. The Tribunal emphasized the importance of documentary evidence and genuine transactions in determining the tax liability of the Assessee.