PINKY JAIN ,BANGALORE vs. THE INCOME TAX OFFICER WARD-5(2)(1), BANGALORE

Per Jason P Boaz, Accountant Member

2.1 The assessee filed her return of income for assessment year 2014-15 on 28.08.2014 declaring income of Rs.8,23,740/- from business, Other Sources and Long Term Capital Gains (LTCG) of Rs.14,81,474/- on sale of shares claimed as exempt u/s 10(38) of the Income-tax Act, 1961 (in short ‘the Act’). The case was taken up for scrutiny and the assessment was concluded u/s 143(3) of the Act vide

Page 2 of 6 order dated 29.12.2016, wherein the assessee’s income was determined at Rs.23,45,210/- in view of the addition of sale proceeds of Rs.15,21,474/- received on account of sale of 40,000 shares of M/s. Kailash Auto being held to be as cash credits u/s 68 of the Act. On appeal, the CIT(A)-5, Bengaluru, dismissed the assessee’s appeal vide the impugned order dated 14.08.2018.

3.1 Aggrieved by the order of the CIT(A)-5, Bangalore, dated 14.08.2018 for assessment year 2014-15, the assessee has preferred this appeal wherein it has raised the following grounds:

1. The learned Assessing Officer had erred in passing the order in the manner passed by him and the learned Commissioner of Income tax (Appeals) has erred in confirming the same. The impugned orders being bad in law, void ab-initio are required to be quashed. 2.1 In any case the order passed in gross violation of the principles of natural justice and fair play, especially in the absence of the cross examinations of the persons whose averments are sought to be relied upon by the Assessing Officer while passing the order, make the order totally bad in law and liable to be cancelled. 2.2 The learned Commissioner of Income tax (Appeals) has instead of quashing the impugned order on the above grounds, has just confirmed the order of Assessing Officer without properly considering the facts and circumstances of the case, arguments of the appellant and the law applicable.

3. The assessing officer had in any case, erred in treating a sum of Rs.15,21,474/- being sale consideration on sale of shares as unexplained cash credit u/s 68 of the Act and taxing the same under the head 'Income from other sources' and the learned Commissioner of Income tax (Appeals) has erred in confirming the same. On the facts and circumstances of the case and the law applicable, there is no unexplained cash credit at all. The action of authorities below have no support in law; are contrary to facts and evidence available and therefore deserve to be rejected. 4.1 In any case and without further prejudice, the authorities below have erred in: treating the Sale consideration on sale of shares as unexplained cash a) credit u/s 68 of the Act.

Page 3 of 6 Not considering the fact that the appellant has been allotted shares b) through initial public offering and in demat form and subsequently sold the shares through recognized Stock Exchange. Holding without basis that the transactions in shares are fraudulent c) Alleging without any basis that the appellant has obtained d) accommodation entries and appellant's own money come back in the guise of capital gains. The conclusions / observations of authorities below being totally erroneous and without basis both on facts and law is to be disregarded. 4.2 The several observations made and various conclusions drawn by the lower authorities in the course of order are without basis and evidence and are made/drawn on surmises, probabilities and conjectures. Such observations and conclusions by quasi-judicial authorities have no support in law and deserve to be rejected in toto. The appellant had actually sold shares through demat account and had 5. earned Capital Gain thereon and same needs to be accepted as such. The appellant denies the liability to pay Interest u/s 234 A, 234B and 6. 234C of the Act. The Interest having been levied erroneously is to be deleted. In view of the above and other grounds to be adduced at the time of 7. hearing it is requested that the impugned order be quashed or atleast the income from long term capital gain claimed as exempt be accepted, the assessment of sale consideration on sale of shares as unexplained cash credit be deleted and interest levied be also deleted.

3.2 During the course of hearing, the ld. AR for the assessee submitted that on similar facts and circumstances, the matter for consideration is squarely covered by the decision of the ITAT, Kolkata Bench in its order in in the case of Prakash Chand Butoria. It is submitted that in the cited case (supra) also, the assessee, an individual, filed his return of income claiming income on sale of shares as exempt u/s 10(38) of the Act. The Assessing Officer (AO) treated the receipt of sale consideration as unaccounted income and made an addition u/s 68 of the Act. On appeal, the CIT(A) upheld the AO’s order. However, on further appeal, the ITAT, Kolkata Bench allowed the assessee’s appeal observing that the addition

Page 4 of 6 was unsustainable since the AO made the addition in a routine and mechanized manner, merely on suspicions based on Report of enquiries made by the Investigation Directorate of DIT, Kolkata, without bringing the same on record or confronting the assessee with OR supplying the assessee copies of the documents relied upon for making the addition and providing her opportunities for rebuttal. It is prayed that in view of the above, the orders of the authorities below be set aside and the assessee’s appeal be allowed.

3.3 Per contra, the learned DR for Revenue submitted that on similar facts and circumstances as in the case on hand, issue for consideration is covered by the decisions of the Bengaluru ITAT in the cases of Arvind Kumar Moolchand in and Pukhraj Hasmukhlal in ITA No.1927/Bang/2017 wherein the Tribunal has restored the issue to the file of the AO having observed that the additions were made based on reports of the Investigation Directorate at Kolkata and statements of various persons without confronting OR making them available to the assessee for rebuttal. In those cases, the Tribunal restored the matter to the file of the AO with the direction to confront the matter to the file of the AO with the direction to confront the assessee with the reports / documents / statements proposed to be used against the assessee, allow rebuttal thereof and cross examination of parties on whose testimony is proposed to be relied upon and the matter be adjudicated afresh after affording the assessee adequate opportunity of being heard and to also file details / submissions in this regard.

3.4 In Rejoinder, the ld.AR for the assessee did not dispute the proposition put forth by the ld. DR for restoring this issue to the file of the AO for de novo adjudication.

3.5 I have heard both parties and perused and carefully considered the material on record; including the judicial decisions cited and the orders of the authorities below.

Page 5 of 6 Taking into consideration the facts and circumstances of the case and the circumstances that the assessee specifically requested for cross-examination of the deponents whose statements were the basis of addition by the AO and also the report of the Investigation Directorate, Kolkata for rebuttal; from the judicial decisions cited, I find that the issue for consideration is squarely covered by the orders of the Bengaluru ITAT in the cases of Arvind Kumar Moolchand (supra) and Pukhraj Hasmukhlal (supra). Following the aforesaid orders (supra), I set aside the orders of the AO and restore the matter of treatment of profit declared on sale of shares, claimed as exempt u/s 10(38) of the Act, to the file of the AO to re-adjudicate the issue afresh; after making available to the assessee for rebuttal all documents; including Statements, Investigation Reports, etc., relied upon by Revenue for making the additions/disallowances and providing adequate opportunity to the assessee for cross- examination of persons whose statements are being relied upon. It is accordingly ordered. Consequently, ground No. 2 of the assessee’s appeal is disposed off as above.

Order pronounced in the open court on this 5th day of December, 2018.