2024 (7) TMI 707 - AT - Income Tax

Investor wins appeal against Section 68 addition for long-term capital gains deemed bogus without specific evidence

The ITAT Mumbai allowed the assessee's appeal against addition under section 68 for alleged bogus long-term capital gains. The AO treated LTCG from Pine ... Bogus LTCG - Addition u/s 68 - assessee failed to discharge the onus of proving the genuineness of the transaction and that the price of the scrip has increased abnormally in a period of two years - HELD THAT:- AO without finding any fault with the evidence submitted by the assessee has proceeded to treat the transaction as non- genuine and the long-term capital gains earned by the assessee as bogus for the reason that the name of scrip is part of Investigation report and there is an abnormal increase in the price within a period of 2 years. Therefore, we seen merit in the contention of the ld. AR that the assessee is a regular investor and that in his normal course of operation has sold a part of his investments made in Pine Animations Ltd. The fact that the assessee continues to hold the portion of shares of Pine Animations Ltd. also goes to substantiate the claim that assessee is not involved in the price manipulation of the impugned shares. On perusal of the the statements recorded from Mr. Anuj Agarwal we notice that there is no specific mention of the names of neither the assessee nor the broker through whom the assessee carried out the transactions. We see no merit in the order upholding the treatment of the LTCG as an income u/s 68 of the Act. Assessee appeal allowed. Issues Involved:1. Violation of principles of Natural Justice.2. Addition of Rs. 22,33,264/- under section 68 of the Income Tax Act.Detailed Analysis:1. Violation of Principles of Natural Justice:The assessee contended that the assessment order passed by the AO and affirmed by the CIT(A) was void due to gross violations of the principles of natural justice. The primary argument was that the addition was made based on statements from third parties without providing the assessee an opportunity to cross-examine these parties or confront the material used against him.2. Addition under Section 68 of the Income Tax Act:The main issue revolved around the addition of Rs. 22,33,264/- under section 68, which the AO treated as unexplained cash credits. The AO's basis for this addition was the alleged non-genuine nature of the Long Term Capital Gain (LTCG) from the sale of shares of Pine Animation Ltd., influenced by an investigation report from the Kolkata Directorate.Arguments by the Assessee:- The assessee, a Chartered Accountant, declared LTCG on the sale of shares of Pine Animation Ltd., which was claimed as exempt under section 10(38).- The AO's addition was based on conjectures and ignored the documentary evidence provided, which included purchase bills, broker notes, share certificates, and Demat statements.- The assessee argued that the AO relied on a general investigation report without specific incriminating evidence against him.- The assessee cited the Bombay High Court decision in PCIT Vs. Indravadan Jain, HUF, asserting that mere mention in an investigation report without concrete evidence linking the assessee to price manipulation cannot justify an addition under section 68.Arguments by the Department:- The Department contended that the AO's detailed analysis of Pine Animation Ltd.'s financials indicated that the price increase was not justified by the company's performance.- The onus was on the assessee to prove the genuineness of the transaction beyond mere documentary evidence.- The AO relied on the investigation report and statements indicating that Pine Animation Ltd. was used for artificial booking of capital gains.Tribunal's Findings:- The Tribunal noted that the AO did not find any specific fault with the evidence submitted by the assessee.- The AO's reliance on the investigation report and the abnormal price increase did not directly incriminate the assessee in price manipulation.- The Tribunal emphasized that the assessee had provided substantial evidence supporting the genuineness of the transactions, including broker bills, contract notes, share certificates, and bank statements.- The Tribunal found merit in the assessee's argument that he was a regular investor and the transactions were part of his normal investment activities.- The Tribunal referenced the Bombay High Court decision in PCIT Vs. Indravadan Jain, HUF, which supported the assessee's case that mere mention in an investigation report without specific evidence cannot justify an addition under section 68.Conclusion:The Tribunal concluded that the addition under section 68 was not justified and deleted the addition made by the AO. The appeal of the assessee was allowed on merits, and the order was pronounced in the open court on 25-01-2024.