2020 (4) TMI 290 - AT - Income Tax

Appellate tribunal upholds decision on LTCG exemption denial for sham transactions.

The appellate tribunal upheld the lower authorities' findings in a case concerning the addition of Long Term Capital Gain (LTCG) on the sale of listed ... Bogus LTCG - Long Term Capital Gain on sale of listed equity share exempt u/s 10(38) - HELD THAT:- Assessee HUF and another HUF of the same family entered into similar transaction with the same company and earned astronomical return within a short span of time of one year and three months. The lower authorities analyzed the financials of the company whose shares were invested into, they do not speak anything except that the whole transaction are sham. Company has a meager turnover and minuscule profit. The regulators conducted the enquiry and found that the price of this company has been rigged. They also found that the route was preferential allotment of individual allottees and three different cooperates. The regulator also found the exit providers, the persons who funded the IPO, and the evidence of rigging of the price. All these culminated into an order dated 23 January 2017 by SEBI . Investigation wing of the income tax department also found with the statement of the brokers that the whole transaction is sham. The statement of the assessee itself did not give any credence to the mere documentary evidences produced by. Further more the honourable Delhi High Court has already decided on identical issue in case of Udita Kalra [2019 (4) TMI 834 - DELHI HIGH COURT] and Suman Poddar [2019 (9) TMI 1089 - DELHI HIGH COURT] which are against the assessee. Therefore, no merit in the appeal of the assessee and all six grounds of appeal challenging the same addition on different pretext are dismissed. Issues Involved:1. Addition of Long Term Capital Gain (LTCG) on sale of listed equity shares exempt under Section 10(38) of the Income Tax Act.2. Addition based on assumption and presumption without concrete evidence.3. Treatment of genuine transactions as ingenuine.4. Lack of opportunity for cross-examination.5. Addition of 7% commission income based on assumption and presumption.Issue-wise Detailed Analysis:1. Addition of Long Term Capital Gain (LTCG) on sale of listed equity shares exempt under Section 10(38) of the Income Tax Act:The assessee filed a return of income declaring LTCG on the sale of shares of M/s HPC Biosciences Ltd, claiming exemption under Section 10(38). The AO noted an astronomical increase in share value and examined the transactions, concluding that the LTCG was a sham transaction used to launder black money. The AO invoked Section 68, treating the sale proceeds as unexplained credit entry, and added Rs. 1,84,090 as commission income under Section 69C.2. Addition based on assumption and presumption without concrete evidence:The assessee argued that the addition was made on the basis of assumptions and presumptions without concrete evidence. The AO had analyzed the price/volume movement, financials, and bank statements of entities involved, concluding the transactions were manipulated. The CIT(A) upheld the AO's findings, noting the dubious nature of the transactions and the lack of concrete evidence from the assessee to prove genuineness.3. Treatment of genuine transactions as ingenuine:The assessee claimed the transactions were genuine, supported by bank statements, demat accounts, share certificates, and contract notes. However, the CIT(A) noted the significant increase in share value without corresponding financial growth of the company, indicating manipulation. The CIT(A) also referred to SEBI's order and investigation reports, which confirmed the manipulation of share prices for LTCG entries.4. Lack of opportunity for cross-examination:The assessee contended that no opportunity for cross-examination was provided. The CIT(A) held that formal cross-examination is not mandatory if adequate opportunity to rebut the case is provided. The assessment records showed that all evidence was confronted to the assessee, and multiple opportunities were given to respond. Hence, the claim of lack of cross-examination was dismissed.5. Addition of 7% commission income based on assumption and presumption:The AO added 7% commission income based on the presumption of payment to an accommodation entry broker. The CIT(A) upheld this addition, noting the lack of concrete evidence from the assessee to disprove the AO's findings. The CIT(A) emphasized that the entire transaction was a sophisticated device to launder money, supported by false documents.Conclusion:The appellate tribunal dismissed the appeal, agreeing with the findings of the lower authorities. The tribunal noted the lack of genuine evidence from the assessee and the strong indicators of manipulation in the transactions. The decision was also supported by previous judgments of the Delhi High Court in similar cases. The appeal was dismissed on all grounds, confirming the additions made by the AO.