Shri Amar Nath Goenka Vs The ACIT (ITAT Delhi)
Conclusion: Where assessee placed sufficient documentary evidences before A.O. to prove genuineness of the transaction of sale of shares such as copies of bank statement, Demat account, share purchase documents and share certificate., etc., and no material had been brought on record against assessee to disprove the claim of assessee, addition made under section 68 on account of bogus long-term capital gain on sale of shares could not be sustained.
Held: Assessee claimed exemption under section 10(38) in respect of long-term capital gain on sale of shares. AO held that there were several important circumstantial as well as direct evidences that lead to the conclusion that the exempt Long-Term Capital Gain claimed by assessee on sale of shares of EBFL was not genuine but was pre-arranged collusive transaction in form of accommodation entry without real substance thus, by applying the test of human probability, AO held that long term capital gains claimed by assessee fell within the ambit of Section 68. It was held assessee placed sufficient documentary evidences before A.O. to prove genuineness of the transaction. Assessee purchased shares through banking channel and actually got the shares transferred in his name. Purchase was made through cheque which was supported by bank statement. The transactions of sale had been made through Demat account. The contract note along with other details were produced to show that purchase and sale of the shares had been made through banking channel through recognized Stock Exchange through Demat account on which Security Transaction Tax had also been paid. No material had been brought on record against the assessee to disprove the claim of assessee. A.O. did not mention any fact as to how the claim of assessee was sham or bogus. Thus, addition made by AO was merely made on presumption and assumptions of certain facts which were not part of the record.
FULL TEXT OF THE ITAT JUDGEMENT
This Order shall dispose-of all the above five appeals filed by different Assessees on an identical question with regard to addition under section 68 of the I.T. Act, 1961, on account of claim of long term capital gains.
2. I have heard the Learned Representatives of both the parties and perused the findings of the authorities below and considered the material available on record. Learned Representatives of both the parties mainly argued in ITA.No. 5882/Del./2018 and have submitted that the issue is same in the remaining appeals, therefore, Order in this case may be followed in other four appeals. In this view of the matter, I proceed to decide ITA.No.5882/Del./2018 as under.
ITA.No.5882/Del./2018 – Shri Amar Nath Goenka, New Delhi
3. This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-7, New Delhi, Dated 08.08.2018, for the A.Y. 2015-2016, challenging the addition of Rs.14,61,585/- under section 68 of the I.T. Act, 1961, on account of long term capital gains.
4. Briefly, the facts of the case are that the assessee filed its original return of income declaring income of Rs.25.35.010/-. The assessee is an individual and declared income from Salary, House Property and Income from other sources. The assessee is Employee-Director of M/s. Premier Polyfilm Ltd. The assessee filed necessary details which have been examined by the A.O. The A.O. found that the assessee claimed Rs.23.44.613/-as long term capital gain (LTCG) on sale of listed shares. Part of the Long Term Capital Gain (LTCG) has been claimed to have been earned is through sale of shares of M/s.Esteem Bio Organic Food Processing Ltd., (Scrip Code – EBFL Security Id-534927) listed on Bombay Stock Exchange (BSE). The summary of the share transaction is as under :
