2021 (1) TMI 1008 - HC - Income Tax

Delhi HC upholds ITAT deletion of Section 68 and 115BBE additions for alleged bogus long-term capital gains through penny stocks

Principal Commissioner of Income Tax -12 Versus Smt. Krishna Devi, Hardev Sahai Gupta (Garg), Smt. Bindu Garg

The Delhi HC upheld ITAT's decision to delete additions made under Section 68 read with Section 115BBE regarding alleged bogus long-term capital gains ... Additions made u/s 68 read with Section 115BBE - claiming bogus LTCG through penny stocks - difference being the figures relating to the additions made under Section 68 read with Section 115BBE - theory of human behavior and preponderance of probabilities - HELD THAT:- It is recorded that “There is no dispute that the shares of the two companies were purchased online, the payments have been made through banking channel, and the shares were dematerialized and the sales have been routed from de-mat account and the consideration has been received through banking channels.” The above noted factors, including the deficient enquiry conducted by the AO and the lack of any independent source or evidence to show that there was an agreement between the Respondent and any other party, prevailed upon the ITAT to take a different view. Before us, Mr. Hossain has not been able to point out any evidence whatsoever to allege that money changed hands between the Respondent and the broker or any other person, or further that some person provided the entry to convert unaccounted money for getting benefit of LTCG, as alleged. In the absence of any such material that could support the case put forth by the Appellant, the additions cannot be sustained. Lower tax authorities are not able to sustain the addition without any cogent material on record. We thus find no perversity in the Impugned Order. Issues Involved:1. Condonation of delay in re-filing appeals.2. Legality of additions made under Section 68 read with Section 115BBE of the Income Tax Act, 1961.3. Validity of the Income Tax Appellate Tribunal (ITAT) decision in favor of the Respondent-Assessee.4. Adequacy of the Assessing Officer's (AO) enquiry and reliance on the Investigation Wing's report.5. Applicability of judicial precedents cited by the Revenue.Issue-wise Detailed Analysis:1. Condonation of Delay in Re-filing Appeals:The court condoned the delay of 11 days in re-filing ITA 125/2020 and 13 days in re-filing ITA 130/2020 & ITA 131/2020, as stated in the applications. The applications were disposed of accordingly.2. Legality of Additions under Section 68 read with Section 115BBE:The Revenue's appeals challenged the ITAT's order which deleted the additions made by the AO under Section 68 read with Section 115BBE of the Act. The AO had added Rs. 96,75,939/- to the Respondent's income, alleging it was a bogus Long Term Capital Gain (LTCG) from penny stocks. The ITAT found that the AO's assessment was based on the Investigation Wing's report without any independent enquiry or corroborative evidence.3. Validity of ITAT Decision:The ITAT held that the AO did not conduct an independent enquiry and relied solely on the Investigation Wing's report. The ITAT noted that the AO failed to corroborate the pre-existing statements from the Investigation Wing with independent evidence during the assessment proceedings. The ITAT concluded that the Respondent had successfully discharged the onus cast upon her under Section 68 of the Act, as the transactions were conducted through banking channels and dematerialized accounts.4. Adequacy of AO's Enquiry and Reliance on Investigation Wing's Report:The court observed that the AO's conclusion was based on the financial analysis of M/s Gold Line International Finvest Limited and the Investigation Wing's report. However, the AO did not conduct a deeper enquiry or corroborate the report with independent evidence. Notices issued under Sections 133(6)/131 to relevant entities did not yield any substantial information. The court found that the AO's conclusion of a pre-planned agreement to convert unaccounted money was unsupported by material evidence, making it an assumption based on conjecture.5. Applicability of Judicial Precedents:The Revenue relied on the judgments in Suman Poddar v. ITO and Sumati Dayal v. CIT to support their case. However, the court distinguished these cases based on their specific facts. In Suman Poddar, the ITAT found a lack of evidence for actual sale of shares, which was not the case here. Similarly, Sumati Dayal's decision was based on its unique facts. The court held that these precedents did not assist the Revenue's case.Conclusion:The court dismissed the Revenue's appeals, finding no substantial question of law. The ITAT's decision to delete the additions was upheld, as the AO's findings were based on assumptions without corroborative evidence. The court emphasized the need for decisions to be based on evidence rather than suspicion or conjecture.