2023 (8) TMI 1013 - AT - Income Tax

Tribunal directs AO to delete disallowance & cash credit, finds genuine investment.

Vimal Kishor Shah Versus ITO, Ward-27 (3) (5) Now ITO-27 (3) (1) Income Tax office, Mumbai

The tribunal directed the Assessing Officer to delete the disallowance under section 69 of the Act for unexplained investment in jewellery for A.Y. ... Addition u/s 69 - unexplained investment in jewellery - HELD THAT:- First for all the assessee has purchased the above said jewellery for her own purpose and payments have been made through banking channel. The above said purchases have been duly reflected in the books of account as part of investment. Hence, we are of the view that there is no scope for treating the above said purchases as unexplained investment warranting addition of u/s 69 - Accordingly, we set aside the order passed by CIT(A) and direct the AO to delete the disallowance under section 69 of the Act. Unexplained cash credit u/s 68 - bogus LTCG on sale of shares - HELD THAT:- The shares have entered the demat account of the assessee and it was held for a period of two years. The assessee has sold them after a period of two years through same broker. The assessee earned long term capital gains from such sale. The fact that the assessee has held the shares for a period of more than two years, in our view, would go in favour of the assessee. We also noticed that the assessee is a regular investor in shares and it is not stray incidence of purchase and sale of shares. We notice that the aggregate value of investments held by the assessee as on 31.3.2014 was Rs. 3.78 crores, which consisted of investments made in 73 companies. Purchase of shares has been accepted by the revenue in the earlier year and hence it may not be correct to treat the sale consideration as bogus in nature. It is not the case of the AO that either the assessee or the stock broker has been subjected to investigation by the SEBI. We also noticed that the AO has entirely relied upon the report given by the investigation wing without making further investigation in order to find out whether the assessee was part of the group which indulged in rigging the price of the shares. AR also submitted that the share price has increased three times during the period of two years which is normal phenomenon found in the share market. Tax authorities are not justified in assessing sale consideration of shares as unexplained cash credit u/s 68. Addition of 1% of the sale consideration of shares as expenditure incurred - Since we have deleted the assessment of sale consideration, this addition, being consequential in nature, is liable to be deleted. We order accordingly. Issues involved:- Appeal against addition made under section 69 of the Act towards unexplained investment in jewellery for A.Y. 2011-12.- Appeal against assessment of sale value of shares as unexplained cash credit under section 68 of the Act for A.Y. 2014-15.Issue 1: Addition under section 69 of the Act towards unexplained investment in jewellery for A.Y. 2011-12:The assessee contested the addition made under section 69 of the Act towards unexplained investment in jewellery. The Assessing Officer treated purchases of jewellery from certain concerns as unexplained investment. The assessee argued that payments were made through banking channels and reflected in the balance sheet under 'Jewellery'. The tribunal found merit in the assessee's submission, noting that purchases were for personal use, payments were made through banking channels, and properly reflected in the books of account. Consequently, the tribunal directed the Assessing Officer to delete the disallowance under section 69 of the Act.Issue 2: Assessment of sale value of shares as unexplained cash credit under section 68 of the Act for A.Y. 2014-15:The Assessing Officer treated the capital gains declared by the assessee from the sale of shares as bogus based on an investigation report. The Assessing Officer assessed the entire sale consideration as taxable income under section 68 of the Act. The tribunal observed that the shares were held for more than two years, indicating genuine investment behavior. The assessee's history as a regular investor with a substantial portfolio was also considered. It was noted that no investigation was conducted on the assessee or the stockbroker by SEBI. The tribunal concluded that the tax authorities were not justified in assessing the sale consideration of shares as unexplained cash credit under section 68 of the Act. The order of the CIT(A) was set aside, directing the AO to delete the addition. Additionally, a 1% expenditure added by the AO was also deleted as consequential.Separate Judgement:- No separate judgment was delivered by the judges in this case.