2019 (4) TMI 1363 - AT - Income Tax

Tribunal upholds CIT(A)'s decision on capital gains, transactions deemed not genuine.

The Tribunal dismissed both appeals, affirming the CIT(A)'s decision to uphold the additions of Rs. 22,28,172/- and Rs. 14,36,364/- as Long Term Capital ... Addition u/s. 68 - credits of sale of penny stock - HELD THAT:- Independent findings of the AO, which are corroborated by the information given by the Investigation Wing, the assessee has failed to substantiate the genuineness of alleged share transactions in respect of long term capital gain u/s. 10(38) of the Act. The landmark decision in the case of McDowell and Company Limited, [1985 (4) TMI 64 - SUPREME COURT] are squarely applicable in this case wherein it has been held that tax planning may be legitimate provided it is within the framework of the law and any colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by dubious methods. However, the case laws cited by the assessee are on distinguished facts, hence, not applicable in the instant case. Assessee has failed to substantiate his claim before the lower revenue authorities as well as before this Bench. CIT(A) has rightly confirmed the addition in dispute, which does not need any interference on our part - Decided against assessee. Issues Involved:1. Legitimacy of the addition of Rs. 22,28,172/- and Rs. 14,36,364/- as Long Term Capital Gains (LTCG) from the sale of listed equity shares of M/s CCL International Ltd.2. Adequacy of evidence and basis for the addition.3. Reliance on statements recorded during the survey conducted by the Investigation Wing of Income Tax, Kolkata.4. Denial of the opportunity for cross-examination of Sh. Jai Kishan Poddar.5. Applicability of Section 10(38) of the Income Tax Act, 1961.Detailed Analysis:1. Legitimacy of the Addition of Rs. 22,28,172/- and Rs. 14,36,364/- as LTCG:The primary issue in both appeals concerns the addition of Rs. 22,28,172/- and Rs. 14,36,364/- as LTCG from the sale of shares of M/s CCL International Ltd. The assessee claimed these gains as exempt under Section 10(38) of the Income Tax Act, 1961. The Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] held that these transactions were not genuine but were bogus entries created to claim tax exemption.2. Adequacy of Evidence and Basis for the Addition:The assessee argued that the addition was based on presumptions, conjecture, and surmises without any corroborative material. The AO's conclusion was primarily based on the statement of Sh. Jai Kishan Poddar and the Investigation Wing's findings, which indicated that the transactions were part of an organized racket to generate bogus LTCG entries. The AO noted that the shares were purchased through off-market transactions, and the financials of M/s CCL International Ltd. did not justify the significant increase in share value.3. Reliance on Statements Recorded During the Survey:The assessee contended that the addition was made solely based on statements recorded during the survey by the Investigation Wing, without independent inquiry by the AO. The Tribunal observed that the AO's findings were corroborated by the Investigation Wing's information, and the assessee failed to substantiate the genuineness of the share transactions.4. Denial of Opportunity for Cross-Examination:The assessee argued that the statement of Sh. Jai Kishan Poddar was recorded at their back, and no opportunity for cross-examination was provided. The Tribunal noted that the assessee did not provide any specific rebuttal to Sh. Jai Kishan Poddar's statement, which admitted involvement in providing bogus LTCG entries through shares of M/s CCL International Ltd.5. Applicability of Section 10(38) of the Income Tax Act, 1961:The Tribunal upheld the AO and CIT(A)'s view that the transactions were not genuine and thus did not qualify for exemption under Section 10(38). The Tribunal referred to the Supreme Court's decision in McDowell and Company Limited, emphasizing that tax planning must be within the law and not involve dubious methods.Conclusion:The Tribunal dismissed both appeals, affirming the CIT(A)'s decision to uphold the additions. The Tribunal found that the assessee failed to substantiate the genuineness of the LTCG claims and that the AO's findings were supported by the Investigation Wing's evidence. The Tribunal also noted that the case laws cited by the assessee were not applicable to the facts of the case. Consequently, the appeals were dismissed, and the additions were confirmed.