2019 (2) TMI 1431 - AT - Income Tax

Tribunal allows LTCG claim, rejects suspicion-based addition.

The Tribunal allowed the assessee's claim of Long Term Capital Gains (LTCG) and directed the deletion of the addition of Rs. 1,03,72,989/-, as the ... Bogus LTCG - penny stock - denying the exemption claimed by the assessee u/s. 10(38) - HELD THAT:- So, as the facts of the case are very similar, the AO has failed to establish any link and therefore the order is based on surmises, predetermined, solely relying upon the investigation report which is general in nature and no concrete material has been brought on record proving otherwise. The assessee has furnished all evidences in support of the claim of the assessee that it earned LTCG on transactions of his investment in shares. The purchase of shares had been accepted by the AO in the year of its acquisition and thereafter until the same were sold. The off market transaction for purchase of shares is not illegal as was held by the decision of Co-ordinate Bench of this Tribunal in the case of Dolarrai Hemani vs. ITO [2016 (12) TMI 1074 - ITAT KOLKATA] and PCIT Vs. BLB Cables & Conductors Pvt. Ltd. [2018 (8) TMI 525 - CALCUTTA HIGH COURT] wherein all the transactions took place off market and the loss on commodity exchange was allowed in favour of assessee. The transactions were all through account payee cheques and reflected in the books of accounts. The purchase of shares and the sale of shares were also reflected in Demat account statements. The sale of shares suffered STT, brokerage etc. In the facts and circumstances of the case, it cannot be held that the transactions were bogus. - Decided in favour of assessee. Issues Involved:1. Confirmation of addition on account of travelling expenses.2. Treatment of Long Term Capital Gains (LTCG) as bogus and denial of exemption under Section 10(38) of the Income-tax Act, 1961.Detailed Analysis:1. Confirmation of Addition on Account of Travelling Expenses:The assessee did not press ground no. 8, which challenged the confirmation of an addition of Rs. 1,54,302/- on account of travelling expenses by the Learned Commissioner of Income Tax (Appeals) [CIT(A)]. Consequently, this ground of appeal was dismissed.2. Treatment of Long Term Capital Gains (LTCG) as Bogus and Denial of Exemption Under Section 10(38):The main grievance of the assessee pertained to the CIT(A)'s action in confirming the Assessing Officer's (AO) treatment of LTCG of Rs. 1,03,72,989/- as bogus, thereby denying the exemption claimed under Section 10(38) of the Income-tax Act, 1961.Facts of the Case:- The AO noted that the assessee claimed LTCG on the sale of shares of M/s. Smart Champs IT and Infra Ltd. (later amalgamated with M/s. Cressanda Solutions Ltd.).- The assessee purchased 2,00,000 shares offline on 24.09.2012 for Rs. 2,00,000/- and sold them between 18.12.2013 to 27.03.2014 for Rs. 1,05,72,989/-.- The AO, influenced by an investigation report, concluded that the gains were artificial and systematically arranged to evade tax.Assessee's Argument:- The assessee provided documents such as contract notes, bank statements, and demat account statements to substantiate the purchase and sale of shares.- The assessee argued that the CIT(A) ignored these documents without pointing out any faults.- The assessee cited judicial precedents where similar claims of LTCG were upheld.Revenue's Argument:- The Revenue argued that the sharp increase in the share price from Rs. 1/- to Rs. 510/- in fifteen months was against human probability and not supported by any extraordinary event.- The Revenue relied on the decision of the Hon’ble Bombay High Court in the case of Bimalchand Jain to support the AO's findings.Tribunal's Findings:- The Tribunal noted that the transactions were carried out on a recognized stock exchange (Bombay Stock Exchange) and through a registered broker, with all due payments made via account payee cheques.- The Tribunal observed that the AO did not find any defects in the documents provided by the assessee.- The Tribunal emphasized that the non-furnishing of the investigation report to the assessee violated the principles of natural justice.- The Tribunal referred to the decision in the case of Navneet Agarwal, where similar claims of LTCG on the sale of shares of M/s. Cressanda Solutions Ltd. were upheld.Legal Precedents Cited:- The Tribunal cited several judgments, including those from the Hon’ble Supreme Court and various High Courts, emphasizing that suspicion, conjectures, and human probabilities cannot replace concrete evidence.- The Tribunal highlighted the necessity of providing cross-examination opportunities and the requirement for the Revenue to prove allegations with substantial evidence.Conclusion:- The Tribunal concluded that the AO's findings were based on mere suspicion and the investigation report, without concrete evidence linking the assessee to any collusive transactions.- The Tribunal allowed the assessee’s claim of LTCG and directed the deletion of the addition of Rs. 1,03,72,989/-.Result:The appeal of the assessee was partly allowed, specifically in respect of the LTCG claim, while the ground related to travelling expenses was dismissed.