2025 (9) TMI 1314 - AT - Income Tax

Assessing Officer erred relying on generic investigation report; no link to penny-stock misconduct, additions disallowed

ITAT, Delhi - AT held that the AO erred in relying solely on a generic Investigation Directorate report without conducting independent enquiries; there ... Bogus LTCG - allegation raised in the report of Investigation Directorate of Kolkata relied upon - HELD THAT:- AO has merely narrated and relied upon the modus operandi indicated in the report of the Investigation Directorate of Kolkata in the affairs of Penny Stock Companies. There is nothing on record to suggest that the Ld.AO conducted any independent enquiries of his own before drawing adverse conclusions qua the income of the assessee. We have further noted that it is not the case of Ld.AO that in the report it has been alleged that assessee had a role in the wrong deeds stated therein while buying & selling of shares of GTAL. Mere reliance on the report of Investigation Directorate of Kolkata which is largely generic in nature, without conducting any independent enquiries into affairs of the assessee, would not entitle the Revenue to make disturbance to the income of the assessee of such a such a magnitude. We don’t countenance the action of the AO making entire addition of sale consideration under the head ‘income from other sources’. Addition made by the Ld.AO on account of unexplained expenditure is based upon mere conjecture and surmises. There is not even an iota of evidence brought on records by the Ld.AO to support his hypothesis. Besides, we have held above that the transaction of sale purchase of shares entered by the assessee did not suffer from any dubious credentials. The transaction of the assessee cannot be deemed to be of the type indicated by Investigation Directorate of Kolkata in its report qua affairs of Penny Stock Companies. Consequently, there cannot be any case for making any deeming addition on the basis of any hypothetical unexplained expenditure. Before parting, we note that the decision in the case of PCIT v. Swati Bajaj [2022 (6) TMI 670 - CALCUTTA HIGH COURT] relied by Ld DR, is distinguishable on facts and can’t come to the aid of the Revenue. ISSUES PRESENTED AND CONSIDERED 1. Whether long term capital gains (LTCG) claimed as exempt under section 10(38) arising from sale of shares of a penny-stock company can be treated as bogus gains and added to income merely on the basis of a generic investigation report without independent inquiry. 2. Whether the entire sale consideration and an assumed commission (3% deemed unexplained expenditure) can be added to the assessee's income where documentary evidence (contract notes, bank statements, demat entries, STT payment) is produced showing purchase on stock exchange and payments routed through banking channels. 3. Whether an assessment order framed after selection under CASS and issuance of notice under section 143(2) (alleged mechanical notice) defeats jurisdictional requirements (jurisdictional challenge). ISSUE-WISE DETAILED ANALYSIS - Issue 1: Legitimacy of claiming LTCG exemption under section 10(38) where shares are penny-stock and department relies on a generic investigation report Legal framework: Exemption for LTCG under section 10(38) (as applicable for the relevant assessment year) applies where STT has been paid on sale on a recognized stock exchange; revenue can displace claimed exemption only by proving that the transaction is not genuine or is part of a sham/bogus scheme. Precedent Treatment: The Tribunal relied on precedents of higher courts (cited in the judgment) which refused to treat bona fide exchange-traded transactions as bogus solely on the basis of generic investigative reports; specific cases referred to include decisions favorable to the assessee from Bombay and Delhi High Courts. A contrary Calcutta High Court decision relied upon by Revenue was distinguished on facts. Interpretation and reasoning: The Tribunal examined evidentiary material tendered by the assessee - contract notes, demat account credits, STT payment, bank statements - showing purchase on the floor of the exchange, routing of funds through banking channels, and delivery into demat account. The AO's conclusion rested primarily on a generic modus operandi report from the Investigation Directorate (Kolkata) describing irregularities associated with penny-stock companies; no independent inquiries were conducted by the AO to link the assessee to the alleged irregularities nor was there case-specific material showing the assessee's participation in the wrongdoings described in the report. Reliance on a general report, without corroborative, case-specific facts or independent verification, was held to be insufficient to displace the documentary record evidencing genuine exchange-traded transactions. The Tribunal emphasized that allegations from an investigative report must be proved 'to the hilt' in relation to the particular assessee before rejecting statutory exemption for LTCG. Ratio vs. Obiter: Ratio - where documentary proof establishes exchange-traded purchase/sale and STT payment, and the AO relies only on a generic investigation report without independent or case-specific corroboration, exemption under section 10(38) cannot be denied and sale consideration cannot be treated as bogus gain. Obiter - general observations on the nature of investigation reports and expectations of AO inquiries. Conclusion: The Tribunal allowed the claim of LTCG exemption and directed deletion of the addition of the sale consideration; the AO's action to add entire sale proceeds as income was disallowed as lacking factual foundation and independent enquiry. ISSUE-WISE DETAILED ANALYSIS - Issue 2: Validity of addition of assumed commission (3%) as unexplained expenditure Legal framework: The tax authority may disallow or make additions as unexplained expenditure only where there is credible material to show that an expense was incurred and is unexplained or relates to undisclosed transaction; conjecture and surmise are insufficient to sustain an addition. Precedent Treatment: Tribunal referred to judicial authorities that reject additions based on conjectural percentages or hypothetical commission where there is no evidentiary basis establishing payment or liability, and distinguished authorities (relied on by Revenue) that sustained additions on stronger factual matrices. Interpretation and reasoning: The AO computed a deemed commission at 3% of sale consideration relying on a generalized pattern from the Investigation Directorate report without producing any material showing that the assessee actually paid such commission or that commission was undisclosed. The Tribunal found no documentary or testimonial evidence of commission payments, no independent verification, and no link between the assessee and the alleged modus operandi described in the report. Given the acceptance of the underlying sale as genuine (see Issue 1) and absence of any corroborative evidence for undisclosed commission, the addition was characterized as speculative. Ratio vs. Obiter: Ratio - additions based on hypothetical percentages and generic reports, in absence of evidence specific to the assessee, cannot be sustained. Obiter - remarks on the need for AO to substantiate computation of unexplained expenditure by independent enquiry. Conclusion: The Tribunal deleted the addition of Rs. 4,75,293/- treated as unexplained commission; the AO's computation was held to be conjectural and unsupported. ISSUE-WISE DETAILED ANALYSIS - Issue 3: Jurisdictional challenge to assessment framed after CASS selection and notice under section 143(2) Legal framework: Jurisdictional objections to assessment proceedings must be specific and substantiated; mere general allegations of mechanical issuance of notices or pre-fed CASS criteria do not, without particulars, vitiate the assessment. Precedent Treatment: General principle followed that challenge to jurisdiction on grounds of mechanical selection requires particularized evidence showing illegality or procedural infirmity; blanket/contention-only objections are disfavored. Interpretation and reasoning: The assessee's jurisdictional objection was general in nature, alleging that notice/assessment flowed from a mechanical CASS selection. The Tribunal found the challenge lacked particularized pleading or proof of procedural impropriety or lack of jurisdiction and therefore dismissed the jurisdictional ground as being general and unsubstantiated. Ratio vs. Obiter: Ratio - a generalized contest to selection/notice under CASS without specific allegations or supporting material cannot invalidate the assessment for want of jurisdiction. Obiter - none material beyond application of settled test for specificity. Conclusion: The jurisdictional ground was dismissed for want of particularization; it did not succeed in setting aside the assessment. Cross-references and Treatment of Competing Authorities The Tribunal expressly followed and relied on decisions holding that bona fide, exchange-traded transactions supported by demat entries, STT payment and bank routing cannot be treated as bogus merely on the basis of a generic investigation report (cited decisions favourable to assessee). A contrary high-court decision relied upon by Revenue was distinguished on facts; thus that authority was not followed. The Tribunal required case-specific proof before rejecting statutory exemption and sustaining additions. Overall Conclusions / Ratio Decidendi The Court (Tribunal) allowed the substantive appeal on merits: deletion of the addition of the entire sale consideration treated as income and deletion of the deemed commission addition. The jurisdictional objection was dismissed as general. The controlling proposition is that where documentary evidence establishes exchange-traded purchase and sale (including STT payment, demat entries and bank routing), and the assessing officer's adverse conclusion is based solely on a generic investigative report without independent, case-specific inquiry or corroborative material, the exemption for LTCG must be upheld and speculative additions cannot be sustained.