2019 (5) TMI 1376 - AT - Income Tax

Tribunal overturns disallowance of capital loss, emphasizes need for evidence over suspicion.

The tribunal allowed the assessee's appeal, concluding that the disallowance of the short-term capital loss was unjustified. It emphasized the importance ... Bogus Short term capital gain - penny stock - addition of Short term capital loss arising from sale of shares STT paid - claimed as set off against short term capital gain on in the matter of compensation received from govt. of Haryana against acquisition of land - genuineness of share transactions on both purchase and sale aspects - lack of cross examination - HELD THAT:- Assessee has filed all the requisite details on record in support of her share transactions. The Revenue’s case questions the genuineness of assessee’s details particularly in the light of search statement by Shri Anil Agarwal in the light of SEBI’s proceedings finalized on 2-4-2018 regarding M/s. First Financial Services Ltd. Rutron International Ltd (supra). Learned departmental representative fails to dispute that there is no direct evidence against the assessee to have indulged in artificial rigging of any of the 7 scrips’ shares. Or that said statement of Shri Anil Agarwal has nowhere quoted the assessee’s name adopting any of the alleged dubious means for artificial rigging of scrips prices. This tribunal’s recent decision in Mahavir Jhanwar V/s. ITO, [2019 (3) TMI 210 - ITAT KOLKATA] held that addition should be based on evidence and not on generalisation, human probabilities, suspicion, conjectures and surmises. Thus we conclude that such a disallowance has to be based on evidence rather as alleged suspicion circumstances. We accordingly direct the Assessing Officer to delete the impugned addition. - Decided in favour of assessee. Issues Involved:1. Correctness of the addition of short-term capital loss from share transactions against compensation received for land acquisition.2. Genuineness of share transactions and allegations of artificial price rigging.3. Applicability of judicial precedents and SEBI orders on the case.Issue-wise Detailed Analysis:1. Correctness of the Addition of Short-term Capital Loss:The assessee challenged the addition of Rs. 93,41,510/- as short-term capital loss from share transactions against the compensation received from the Haryana Government for land acquisition. The Assessing Officer (AO) disallowed the loss, claiming it was manipulated to evade tax on the compensation received. The CIT(A) upheld the AO's decision, noting that the assessee, a senior citizen with no prior share investment history, invested large sums in lesser-known companies, resulting in substantial losses. This was viewed as a deliberate attempt to book artificial losses to offset the capital gain from the land compensation.2. Genuineness of Share Transactions and Allegations of Artificial Price Rigging:The AO and CIT(A) questioned the genuineness of the share transactions, particularly in companies like First Financial Services Ltd. and Rutron International Ltd., which were identified as penny stocks involved in dubious activities. The AO cited a search operation and a statement from an entry operator, Shri Anil Agarwal, who admitted to manipulating share prices to create artificial gains and losses. The assessee's transactions were deemed part of this scheme, and the losses were considered non-genuine.3. Applicability of Judicial Precedents and SEBI Orders:The CIT(A) referred to several judicial precedents, including the Supreme Court's decision in McDowell & Co. Ltd. vs. CTO, which held that tax avoidance through dubious methods is not permissible. The CIT(A) also cited the ITAT Chandigarh's decision in Avtar Singh vs. Department of Income Tax, which emphasized the need to look beyond the form of transactions to their substance. The SEBI orders against the companies involved further supported the view that the transactions were manipulated.Tribunal's Findings:The tribunal examined the evidence, including the assessee's purchase and sale details, contract notes, broker's bills, D-mat statements, and SEBI's order. The tribunal noted that the Revenue's case relied heavily on the statement of Shri Anil Agarwal and SEBI's findings but lacked direct evidence against the assessee. The tribunal referred to its recent decision in Mahavir Jhanwar vs. ITO, which emphasized that disallowances should be based on concrete evidence rather than suspicion. The tribunal concluded that the assessee had provided sufficient evidence to support the genuineness of the transactions and directed the AO to delete the addition.Conclusion:The tribunal allowed the assessee's appeal, finding that the disallowance of the short-term capital loss was not justified based on the evidence presented. The tribunal emphasized the need for concrete evidence rather than suspicion to support such disallowances and directed the AO to delete the impugned addition. The order was pronounced on 17-05-2019.