2023 (9) TMI 1725 - AT - Income Tax

Section 68 penny stock cash credit additions unsustainable solely on retracted statement; 5% profit estimated instead

ITAT Kolkata held that additions u/s 68 towards alleged unexplained cash credits from sale of penny stock shares could not be sustained solely on a ... Unexplained Cash Credit u/s 68 - penny stocks and share capital - sale consideration received by the assessee on account of sale of shares/investments in different companies holding that the assessee had failed to establish the identity and creditworthiness of the purchasers - whether retracted statement can not be made sole basis for making the additions? - HELD THAT:- It is in the notice of the statutory controlling body of the Income Tax Authorities that the revenue officials are used to take confessional statements from the person searched under force, pressure or threat and that is why they have made it mandatory that additions solely on the basis on such statements should not be made and that corroborative evidences should be collected or obtained before making such additions. The circular of the CBDT is binding on the revenue officials. In the facts and circumstances of this case, when seen in the light of above case laws and CBDT circular, additions in this case cannot be said to be justifiably made. All the above details when kept in juxtaposition, there remains nothing to cast an iota of doubt on the sale transaction of shares held by the assessee as investments which it undertook in the ordinary course of its business, more importantly, purchases having made in the current year also. Further, as rightly pointed out by the learned Counsel, both opening balance of investment in shares and the purchases made during the year have not been disputed or doubted by the authorities below so as to bring the entire sale consideration to tax. DR has submitted that the assessee has claimed that it has undertaken this sale transaction by selling the shares at the cost at which it had acquired them in AY 2006-07. At the same time, assessee submits that it has undertaken this transaction in the ordinary course of its business. DR has submitted that the conduct of business is always with a profit motive, more particularly when the assessee had held these shares for past several years and had also made purchases during the year, deploying its funds. There ought to be certain element of profit embedded in the sale transaction executed which must be brought to tax. DR and taking a holistic view of the facts and circumstances of the case, we find it proper to consider net profit element @ 5% of the sale consideration i.e. 5% of Rs. 17,05,60,000/- which comes to Rs. 85,28,000/- be subjected to tax. We, accordingly delete the addition to the extent of Rs. 16,20,32,000/- made u/s 68 of the Act and sustain the balance of Rs. 85,28,000/- towards profit element on the impugned sale transaction of shares undertaken by the assessee. 1. ISSUES PRESENTED AND CONSIDERED * Whether an undated assessment order passed beyond the period of limitation and without a Document Identification Number (DIN) is non est and incapable of being relied upon by appellate authorities. * Whether the original cryptic assessment order validly justified the addition under section 68 on the sale consideration of shares/investments, in absence of specific incriminating material or discussion on merits. * Whether, in the facts, section 68 could be invoked to treat recorded sale proceeds of investments as unexplained cash credits when the opening investments, purchases during the year, and closing investments stood accepted and the transactions were through banking channels. * What is the evidentiary value of retracted statements recorded under section 132(4), in absence of corroborative material, for sustaining additions. * Whether, notwithstanding the failure of the Revenue to sustain the entire section 68 addition, some profit element embedded in the sale of investments could be brought to tax on estimation. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Validity of the subsequent undated assessment order without DIN and beyond limitation Legal framework: The Tribunal referred to CBDT Circular No. 19 of 2019 mandating quoting of DIN on all communications, and to the decision of the Delhi High Court in CIT v. Brandix Mauritius Holdings Ltd., holding that any communication without DIN is to be treated as non est. Interpretation and reasoning: The Tribunal noted that, apart from the original short assessment order dated 30.09.2021, the Assessing Officer had passed another detailed, undated order, beyond the prescribed limitation and without any DIN. Applying the CBDT circular and Brandix, it held that any such communication without DIN in its body is to be treated as non est. Further, as it was also passed beyond the limitation period, it could not be recognized as a valid assessment order. Conclusions: The subsequent undated and DIN-less order passed after limitation was held to be non est in law and incapable of being taken cognisance of; reliance placed by the appellate authority on that order was impermissible. Issue 2: Sustainability of addition under section 68 based on the original cryptic assessment order Legal framework (as discussed): Section 68; principles on evaluation of evidence and 'test of human probabilities' as referred by the Assessing Officer and CIT(A) through various case law; CBDT Circular No. 19/2019 (only for DIN aspect). The Tribunal also considered precedents cited by the assessee that recorded sale of investments, already reflected in books, cannot again be taxed under deeming provisions as unexplained credits when it results in double taxation. Interpretation and reasoning: * The Tribunal observed that the original assessment order was 'small and cryptic' and contained only a bare, general observation that the identity and financial credentials of the purchasers were 'suspicious', with no discussion on the specific nature of the investments sold, or any concrete material/evidence establishing that the sale consideration was bogus or represented the assessee's own unaccounted money. * It noted that the assessee had a regular pattern of holding and dealing in investments: share capital and premium raised in FY 2005-06 had been accepted in scrutiny under section 143(3); the capital was invested in shares of various private companies; the movement of investments over several years (opening balance, purchases, sales, closing balance) was on record and not disputed. * For the relevant year, the Tribunal recorded that: (a) opening investments, (b) purchases during the year (approx. Rs. 66.47 crore), and (c) the closing investments (approx. Rs. 69.82 crore) were all accepted by the Assessing Officer; only the sale consideration of Rs. 17.05 crore was treated as unexplained under section 68. * On analysis of the tabulated data, the Tribunal found that the entire sales were out of the accepted opening balance and current year purchases; the shares were sold at cost, resulting in no profit or loss. * The Tribunal emphasized that the sale of investments and the corresponding receipts were recorded in the regular books of account; purchases were not doubted, and the stock positions mathematically reconciled. Treating the sale consideration as unexplained credit, despite accepting both the source (investments) and the resultant closing balance, would effectively lead to double taxation of the same amount. * The Tribunal also took note that the Assessing Officer had not rejected the books of account, had not pointed out specific defects in the books, and had not brought any material to show that sale proceeds were funded by cash deposits or represented the assessee's own money routed back. * It was also observed that general observations about modus operandi of shell companies or reliance on generic statements of entry operators, without concrete, transaction-specific evidence linking the assessee's particular sale transactions and funds trail, could not justify invoking section 68 on the entire sale consideration already appearing in the books. Conclusions: The original cryptic order did not contain sufficient reasoning or specific evidentiary foundation to sustain the entire addition under section 68 on the sale consideration of Rs. 17.05 crore. The mechanical addition, in the face of accepted opening balance, purchases, and closing balance of investments and absence of concrete adverse material, was held unsustainable in law. Issue 3: Applicability of section 68 to recorded sale proceeds of investments where source and stock movement are accepted Interpretation and reasoning: * The Tribunal reiterated that the assessee's investments in shares were duly reflected in the books of account over several years; the Assessing Officer had accepted both the opening investments and the purchases made during the year, and had also accepted the closing investment figure. * It noted that the sale proceeds under challenge were directly linked to those accepted investments, and the sale amounts had been received through banking channels; buyers were identifiable, assessed to tax, and responded to summons under section 131 by furnishing confirmations and supporting details. * On these admitted facts, the Tribunal found that the sale consideration was only a realization of investments already taxed/recognized earlier, not an independent cash credit with unexplained source. If the underlying investments and their continuity in the books were not disputed, taxing the gross sale proceeds again as unexplained credit under section 68 would amount to taxing the same funds twice. * The Tribunal accepted the assessee's argument that deeming provisions like section 68 could not be invoked to re-characterise duly recorded sale proceeds of investments, absent proof that such proceeds were in truth unexplained money of the assessee. Conclusions: In the given factual matrix-where opening investments, purchases, and closing investments were accepted, and the sale proceeds were booked in regular books and received through banking channels-section 68 could not be applied to tax the entire sale consideration as unexplained cash credit. Addition of the full sale consideration under section 68 was held impermissible. Issue 4: Evidentiary value of retracted statements recorded under section 132(4) Legal framework (as discussed): Section 132(4); various judicial precedents (including decisions of High Courts and Tribunals) on the limited evidentiary value of retracted statements; CBDT Letter No. 286/2/2003-IT(Inv) dated 03.10.2003 advising against reliance on forced confessions and stressing collection of corroborative evidence. Interpretation and reasoning: * The Tribunal noted that the principal incriminating material relied upon by the Revenue was the statements of key persons of the group recorded under section 132(4), which were retracted by duly sworn affidavits on the very next day before a Metropolitan Magistrate. * It held that retracted statements recorded under section 132(4), in the absence of corroborating incriminating material found during the search or subsequently, could not be the sole basis for making additions. * The Tribunal relied on the jurisdictional High Court's ruling in Golden Goenka Fincorp Ltd., where additions under section 68 based solely on a statement (later retracted) of a director recorded during search, without any cash trail or corroborative investigation, were deleted. * The Tribunal also referred to other High Court and Tribunal decisions holding that: (i) statements under section 132(4) without supporting incriminating material have limited evidentiary value; (ii) a belated or immediate retraction requires the Assessing Officer to test the explanation with reference to books and evidence; and (iii) mere admission, especially when alleged to be under coercion or pressure, cannot substitute for substantive evidence. * The CBDT letter was cited to underscore that confessions during search, if not based on credible evidence, are often retracted and should not form the basis of assessment; the department is expected to rely on evidence/material gathered, not on mere confessions. * The Tribunal emphasized that in the present case the retraction was immediate, there was no further cross-examination or independent corroboration, and the quantum of addition exceeded even the alleged disclosure in the retracted statements. Conclusions: The retracted statements under section 132(4) could not, by themselves and without corroborative incriminating material, justify the additions. Such statements, particularly when retracted promptly and unsupported by evidence, had insufficient evidentiary value to sustain the impugned section 68 addition. Issue 5: Estimation and taxation of profit element embedded in sale of investments Interpretation and reasoning: * Having held that the entire sale consideration could not be taxed under section 68, the Tribunal considered the argument of the Departmental Representative that, if the assessee claimed to be carrying on business in shares/investments, and had held shares for several years and made further purchases, normal business conduct would involve a profit motive; therefore, some profit element should be assumed to be embedded in the sale consideration. * The Tribunal accepted that, viewed holistically and on the test of probability in the context of business activity, it was reasonable to infer that the transactions would contain a margin of profit, even though the assessee had recorded them at cost with no declared profit. * Balancing the fact that the Revenue had not concretely established bogusness of the entire receipts with the commercial reality of business profit motive, the Tribunal held it appropriate to tax only the estimated net profit component rather than the full sale proceeds. Conclusions: The Tribunal deleted the addition under section 68 to the extent of Rs. 16,20,32,000/- and sustained a limited addition of 5% of the total sale consideration, i.e., Rs. 85,28,000/-, as representing the profit element on the impugned share sale transactions, to be brought to tax. The assessee's appeal was thus partly allowed.