Pramod Kumar Lodha Vs ITO (ITAT Jaipur)
Decision of the AO holding the transaction as bogus and denying the claim of long term capital gain under section 10(38) of the Act is based on suspicion without any material evidence to controvert or disprove the evidence produced by the assessee. The enquiry conducted by the ITO Investigation Indore is not a conclusive finding of fact that the transaction of purchase of shares by the assessee is bogus particularly in view of admitted fact that these shares were held by the assessee and were duly materialized in the d-mat account. Therefore, until and unless a finding is given that the shares were acquired by the assessee from the person other than the broker claimed by the assessee, the mere suspicion how so ever strong may be, cannot be a basis of addition or disallowance of claim. As regards the statement recorded by the ITO Investigation Indore of one Shri Mahesh Pancholi, it is recorded by the AO that the said person was in the employment only for the past four years and further the said witness has not denied the confirmation issued by the broker, but has given a vague statement of having any knowledge of such transaction of shares sold to the assessee. Even otherwise, these enquiries were conducted at Indore and the statement was recorded at the same place and rather at the back of the assessee. Therefore, until and unless these witnesses were present during the assessment proceedings, the assessee was denied the proper opportunity of cross examination. Merely supplying of statement to the assessee at the fag end of the assessment proceedings is not sufficient to meet the requirement of giving an opportunity to cross examine the witness when the witness himself was not available at the place. Accordingly, in view of the above facts and circumstances as discussed above and following the earlier decision of this Tribunal as well as various decisions relied upon by the assessee, we hold that the denial of the claim on the basis of suspicion without any cogent material to show that the assessee has brought back his own unaccounted income in the shape of long term capital gain, the said action of the AO is not sustainable.
FULL TEXT OF THE ITAT JUDGMENT
This appeal by the assessee is directed against the order dated 15th October, 2014 of ld. CIT (A) for the assessment year 2010-11. The assessee has raised the following grounds of appeal :-
1. That on the facts and in the circumstances of the case the ld. CIT (A) is wrong, unjust and has erred in law in confirming finding recorded by the assessing officer that long term capital gain of Rs. 72,61,309/- on sale of shares is not genuine allegedly on the ground that purchase of those shares is a sham transaction and thereby confirming addition to the extent of Rs. 72,61,309/- to the income of the appellant u/s 69 of the I.T. Act, 1961 on account of alleged unaccounted consideration in purchase of those shares.
2. That the appellant craves the permission to add or to amend to any of the above grounds of appeal or to withdraw any of them.”
2. The assessee is an Individual, derives income from house property, remuneration from partnership firm, capital gain from sale of shares and income from other sources. During the previous year relevant to the assessment year under consideration, the assessee was also engaged in the business of commodity broking. The assessee filed his return of income on 2nd October, 2010 declaring total income of Rs. 7,18,890/-. The assessee claimed exemption under section 10(38) of the IT Act in respect of Long Term Capital Gain of Rs. 72,61,309/- arising from sale of equity shares of M/s. Well Pack Papers & Containers Ltd. During the assessment proceedings, the AO questioned the allowability of the claim and rather doubted the genuineness of the transaction of long term capital gain. The assessee produced the relevant evidence in support of the claim which included purchase bills of the shares, confirmation of the broker through whom the shares were purchased, D-mat account statement showing holding of shares and sale of shares from the D-mat account, sale bills of shares sold, copy of account of the broker through whom the shares were sold and copy of contract note issued by the broker. The AO issued a commission under section 131(1)(d) of the IT Act to the ITO Investigation, Indore for enquiry to be conducted in respect of genuineness of the transaction. As per the report of the ITO Investigation, Indore it was found that M/s. Arihant Securities & Shares, Indore through whom the assessee purchased the shares in question does not exist on the given address. The AO issued summon under section 131 to one Shri Satya Narain Rathi which was served but there was no compliance. The AO also issued a notice under section 133(6) to M/s. Arihant Securities & Shares for confirmation of sale of shares to the assessee. In response, confirmation was filed by M/s. Arihant Securities & Shares. The AO did not accept the confirmation and conducted further enquiry from the group company of M/s. Arihant Securities & Shares, namely, M/s. Arihant Capital Markets Ltd. and statement of one Shri Mahesh Pancholi was recorded who had denied having any transaction with the assessee in respect of the shares of M/s. Well Pack Papers & Containers Ltd. Accordingly, he denied the claim of long term capital gain and exemption under section 10(38) of the IT Act and made the addition of the entire sale consideration to the income of the assessee. The assessee challenged the action of the AO before the ld. CIT (A). The ld. CIT (A) upheld the addition made by the AO by treating the long term capital gain as bogus transaction. However, the ld. CIT (A) has allowed the relief on account of purchase consideration of shares already recorded in the books of account.
3. Before us, the ld. A/R of the assessee has submitted that the assessee produced all the relevant record and evidences in support of the claim and entire trail of documents substantiating the transaction of purchase and sale of shares, before the authorities below. The only requirement for claiming exemption under section 10(38) is the transaction of sale undertaken and subjected to STT in respect of shares of a company listed in the recognized Stock Exchange. The ld. A/R has submitted that the AO has not disputed that the company M/s. Well Pack Papers & Containers Ltd. was listed in the Stock Exchange and though the assessee purchased the shares through off market transaction but the shares were dematerialized before the same were sold after one year from the D-mat account of the assessee. Thus the ld. A/R has submitted that the assessee has produced all the relevant documents and evidences establishing the purchase of shares, dematerialization of the same and thereafter sale of shares from D-mat account against the consideration received through banking channel. The AO as well as the ld. CIT (A) has not disputed the sale of shares and receipt of consideration but have treated the transaction of long term capital gain and claim of exemption under section 10(38) as bogus. The ld. A/R has further contended that the assessee has purchased the shares in the month of November, 2008 and were duly recorded in the books of account and shown in the balance sheet of the assessee as on 31st March, 2009. Therefore, the shares which were already recorded in the books of account and shown in the Balance Sheet as on 31st March, 2009 cannot be treated as bogus transaction only because the assessee earned a huge capital gain due to the abnormal increase in the market price of the shares. He has further contended that the AO has relied upon the statement of Shri Mahesh Pancholi of M/s. Arihant Capital Market Ltd. However, the said person was not in the employment of the company when the transaction of purchase of shares of M/s. Well Pack Papers & Containers took place in the month of November, 2008. The AO himself has accepted this fact that Shri Mahesh Pancholi is in employment of M/s. Arihant Capital Market Ltd. only for four years when the statement was recorded in the month of March, 2013, whereas the transaction of purchase of shares took place prior to the four years in the month of November, 2008. Further, mere denial of having transaction is not sufficient when the assessee produced all the documentary evidences. Thus the ld. A/R has contended that in the absence of any contrary evidence to prove the transaction to be bogus, the denial of claim by the AO on the basis of suspicion and doubt is not proper and justified. He has further contended that the AO even not provided the opportunity to the assessee to cross examine the Inspector who has conducted the enquiry or Shri Mahesh Pancholi whose statement was recorded by the AO at the back of the assessee. The AO issued notice under section 133(6) to one Shri Satyanarain Rathi but he did not appear before the AO and non appearance of the said person cannot be a basis for considering the transaction to be bogus. The AO did not take any further step for ensuring the presence of Shri Satyanarain Rathi though a confirmation was filed admitting the transaction of sale of shares to the assessee in the month of November, 2008. Thus the transaction of purchase and sale of shares was very much proved by the supporting evidences, which was not disputed by the AO. The ld. A/R has relied upon the decision of Hon’ble Supreme Court in the case of CIT vs. Sunita Dhadda, 403 ITR 183 and submitted that the Hon’ble Supreme Court has upheld the decision of Hon’ble Jurisdictional High Court wherein the addition made by the AO on account of On Money was deleted by the Tribunal and have upheld by the Hon’ble High Court was found to be proper and justified as the AO made such an addition on the basis of the statement of a witness without giving an opportunity of cross examination to the assessee. The ld. A/R has also relied upon the decision of Coordinate Bench of this Tribunal dated 31.01.2018 in the case of Shri Pramod Jain & Others in ITA Nos. 368 to 372/JP/2017 and submitted that the Tribunal has held that it is not expected from the assessee individual to produce the Principal Officers of the assessee rather the AO ought to have summoned them if the examination of officers were considered necessary by the AO. The AO ought not to have asked the assessee to produce the principal officers of those companies. The ld. A/R has also relied upon the decision of Hon’ble Jurisdictional High Court in the case of Principal CIT vs. Shubh Mines Pvt. Ltd. dated 3rd May, 2016 in DBIT Appeal No. 96 of 2015 and submitted that Hon’ble High Court has held that in the absence of cogent evidence on record establishing that money shown to have received as share application money was, as a matter of fact, unaccounted money belonging to the assessee, the finding of the AO based on suspicion has rightly been held not sustainable in the eyes of law. He has then referred to the decision of Mumbai Bench of the Tribunal ( Special Bench) in the case of GTC Industries vs. ACIT, 164 ITD 1 and submitted that it was held that no addition can be made in the hands of the assessee if no direct evidence has been brought on record by the AO to hold that the assessee introduced his own unaccounted money by way of bogus long term capital gain. He has also relied upon following decisions :-
Principal CIT vs. Prem Lal Gandhi 94 taxmann.com 156 (P&H)
Principal CIT vs. Shri Hitesh Gandh ITA No. 18 of 2017 (P&H)
CIT vs. Smt. Pooja Agarwal,
DBIT Appeal No. 385/2011 (Raj.HC)
CIT vs. Carbo Industrial Holdings Ltd. 116 Taxman 159 (Cal.)
CIT vs. Emerald Commercial Ltd. 120 Taxman 282 (Cal.)
Hence, the ld. A/R has submitted that in the absence of any finding by the Investigation Wing holding the transaction as bogus and assessee being part of any racket of the entry providers, disallowance made by the AO is unjustified. The AO has not rebutted the documentary evidence produced by the assessee and further AO placed reliance on the statement of witness, report of the ITO Investigation, Indore without giving an opportunity of cross examination to the assessee before the order passed by the AO is not sustainable.
3.1. On the other hand, the ld. D/R has submitted that the assessee has not proved the genuineness of the payment for purchase of shares and the bills for purchase of shares mentioned only cash payment and not through banking channel. Therefore, in the absence of any evidence which can be verified independently, the said bill produced by the assessee cannot be accepted. The AO has conducted the due enquiry to verify the genuineness of the transaction. As per the report of the ITO Investigation, Indore, the share broker was not found at the given address and, therefore, when there was no existence of the share broker then the documents relied upon by the assessee as issued by the alleged share broker cannot be considered as genuine evidence. The ld. D/R has further submitted that the AO has also recorded the statement of Shri Mahesh Pancholi, the authorized person of M/s. Arihant Capital Market Ltd. The confirmation filed by the assessee clearly mentions that M/s. Arihant Securities & Shares is an unit of M/s. Arihant Capital Markets Ltd., therefore, in the absence of the share broker, the AO conducted the enquiry from the parent company M/s. Arihant Capital Markets Ltd. through ITO Investigation, Indore who had denied having any transaction of sale of shares of M/s. Well Pack Papers & Containers Ltd. to the assessee. The ld. D/R has thus submitted that the AO has brought on record evidence in the shape of enquiry and statements to hold that the transaction of purchase and sale of shares is bogus, in the nature of accommodation entry to claim long term capital gain which is exempt from tax. The assessee was also given the Inspector’s Report as well as the statement of Shri Mahesh Pancholi which was duly responded by the assessee during the assessment proceedings and, therefore, the assessee was given opportunity and confronted with the report of the Inspector Investigation, Indore as well as the statement of Shri Mahesh Pancholi. The ld. D/R has further submitted that the case law relied upon by the assessee are not applicable in the facts of the present case as in those cases the transactions were through banking channel whereas the assessee has claimed to have paid the purchase consideration in cash. She has relied upon the orders of the authorities below.
4. We have considered the rival submissions as well as the relevant material on record. The details of purchase and sale of shares in question are given by the AO in para 3.1 page 10 of the assessment order as under :-
“ Sale of Shares (Nov & Dec, 09) Rs.7408697/-
