2018 (12) TMI 561 - AT - Income Tax

Tribunal rules in favor of assessee, citing violation of natural justice and lack of evidence

Mr. Ramprasad Agarwal Versus Income tax Officer 2 (3) (2), Mumbai

The Tribunal allowed the assessee's appeals, setting aside the lower authorities' orders. It directed the deletion of the addition made under Section 68 ... Bogus capital gain on sale of long term shares - exemption under section 10(38) denied - addition made on the suspicion and surmises - Held that:- As decided in SHRI MEGHRAJ SINGH SHEKHAWAT VERSUS THE DCIT, CENTRAL CIRCLE-3, JAIPUR [2018 (3) TMI 1639 - ITAT JAIPUR] Assessee has produced the relevant record to show the allotment of shares by the company on payment of consideration by cheque and therefore, it is not a case of payment of consideration by in cash. But the transaction is established from the evidence and record which cannot be manipulated as all the entries are part of the bank account of the assessee and the assessee dematerialized the shares in the D-mat account which is also an independent material and evidence cannot be manipulated. The holding of the shares by the assessee cannot be doubted and the finding of the AO is based merely on the suspicion and surmises without any cogent material to show that the assessee has introduction his unaccounted income in the shape of long term capital gain. The order of the Assessing Officer treating the long term capital gain as bogus and consequential addition made to the total income of the assessee is not sustainable. Hence, we delete the addition made by the AO on this account. - decided in favour of assessee. Issues Involved:1. Validity of notice issued under Section 148 of the Income Tax Act.2. Addition of Rs. 83,45,689 under Section 68 of the Income Tax Act by treating capital gains on the sale of shares as non-genuine and denying exemption under Section 10(38).Issue-wise Detailed Analysis:1. Validity of Notice Issued Under Section 148:The assessee raised a ground challenging the issuance of notice under Section 148 of the Income Tax Act, claiming it to be without jurisdiction and bad in law. However, during the hearing, the assessee's representative did not press this ground, leading to its dismissal as not being pressed.2. Addition of Rs. 83,45,689 Under Section 68:The primary issue was the addition of Rs. 83,45,689 by the Assessing Officer (AO), upheld by the Commissioner of Income Tax (Appeals) [CIT(A)], by treating the capital gains from the sale of shares of Rutron International Ltd. as non-genuine and denying the exemption under Section 10(38) of the Act.Facts and Findings:- The assessee, a director of M/s. Sudhir Switchgears P. Ltd., filed a return declaring an income of Rs. 21,22,111, which was processed under Section 143(1). The case was reopened under Section 147 based on information from DGIT (Inv.), Kolkata, indicating the involvement of the assessee in a racket of penny stocks for claiming bogus long-term capital gains.- The AO found that the assessee earned a profit of Rs. 83,45,689 from the sale of shares of Rutron International Ltd. and claimed it as exempt under Section 10(38). The AO concluded that the capital gains were manipulated to avoid taxes, citing the significant price fluctuation of the shares and the involvement of Shri Anil Agarwal, who admitted to providing accommodation entries for bogus capital gains.- The AO issued a show-cause notice, and despite the assessee's reply, added the amount under Section 68, framing the assessment under Section 143(3) read with Section 147. The CIT(A) affirmed this addition.Tribunal's Analysis:- The Tribunal noted that a similar issue involving the same company, Rutron International Ltd., was decided by the Jaipur Bench in favor of the assessee in the case of Meghraj Singh Shekhawat vs. DCIT. The Tribunal found the facts of the present case identical to those in the cited case.- The Tribunal emphasized that the AO's reliance on the statement of Shri Anil Agarwal without providing the assessee an opportunity for cross-examination was a violation of the principles of natural justice. The Tribunal also pointed out that the assessee provided substantial evidence, including bank statements, dematerialization of shares, and sale transactions through recognized stock exchanges, to prove the genuineness of the transactions.- The Tribunal referred to the decision of the Hon'ble Supreme Court in CCE vs. Andaman Timber Industries, which held that not allowing cross-examination of witnesses whose statements were relied upon by the adjudicating authority amounted to a violation of natural justice.- The Tribunal also cited the Hon'ble Rajasthan High Court's decision in CIT vs. Smt. Pooja Agrawal, which supported the assessee's claim when all relevant documents substantiating the transactions were provided.Conclusion:The Tribunal concluded that the AO's addition based on mere suspicion and without any corroborative evidence was not sustainable. It directed the deletion of the addition made under Section 68 and allowed the exemption under Section 10(38) for the long-term capital gains.Final Judgment:The appeals of the assessee were allowed, and the orders of the lower authorities were set aside. The Tribunal directed the AO to treat the long-term capital gains as genuine and delete the consequential addition.