TaxTMI 
TaxTMI 
2021 (12) TMI 808
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....on" and the order passed by him, though there was no failure on the part of the appellant to disclose fully and truly all material facts. b) The appellant respectfully submits that the AO initiated reassessment proceedings on the basis of suspicion, conjectures and surmises, without any concrete material or evidence to support the same and also without satisfying himself about reliability of the investigation report received by him from the Director of Investigation, Kolkata and applicability of the same to the facts in the case of the appellant. c) The appellant, therefore, prays that the very basis of initiating the reassessment proceedings, being vague and unreliable, the said proceedings be held as void ab initio and order passed pursuant thereto be quashed as bad in law. GROUND NO. 2 - AGAINST DENIAL OF S. 10 (38) EXEMPTION FOR LONG-TERM CAPITAL GAINS OF Rs. 5,93,45,030/- FROM SALE OF QUOTED SHARES OF JMD TELEFILMS LIMITED a) The CIT (A) has erred in confirming denial of exemption under Section 10(38) of the Act claimed by the appellant, though all the conditions stated in that section are satisfied, by alleging "bogus and manipulated" share....
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....its that the AO has disallowed an "imaginary commission payment" for sale of the shares based on suspicion, conjectures and surmises. The sale transactions were carried out by the appellant through Motilal Oswal Securities Limited, the well-known broker registered with recognised stock exchanges and their brokerage/commission is duly charged in their bills which fact is totally ignored. The appellant has not paid any other amount to them or any other party as alleged. Since there is no valid basis or concrete evidence for his assumption about payment of commission for sale of the said shares, such disallowance is not sustainable - on facts and in law. c) In the above background, the appellant prays that the disallowance of Rs. 36,38,987/- as the imaginary expenditure (by way of commission for sale of the shares in JMD Telefilms Limited), which is neither paid nor claimed by the appellant, be deleted. GROUND NO. 5 - AGAINST LEVY OF INTEREST OF Rs. 1,60,35,802/- UNDER SECTION 234B OF THE ACT a) The CIT (A) has erred in confirming interest charged under Section 234B of the Act. b) The appellant politely submits that the denial of exemption under Sec....
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....eopened u/s 147 of the Act. Objecting to the validity of the jurisdiction assumed by the A.O for reopening of his case the assessee vide a letter dated 16.06.2017 filed his objections. However, the A.O not finding favour with the objections raised by the assessee qua the validity of the reassessment proceedings dismissed the same vide his letter dated 05.07.2017. 3. During the course of the assessment proceedings, it was observed by the A.O that the assessee in his return of income had claimed LTCG on sale of shares of a scrip, viz. M/s JMD Telefilms Industries Ltd. (formerly known as Avtar Finance and Management Consultants) and subsequently known as M/s JMD Ventures Ltd. (Scrip Code: 511092) as shown below: Name of security Oty Date of purchase Purchase amount Date of sales Qty Sales amount LTCG JMD Telefilms Inds. Ltd. (Avtar Finance) 35000 26.02.09 59500 01.04.10 35000 2280950 2221450 JMD Telefilms Inds. Ltd. (Avtar Finance) 60000 26.02.09 102000 06.04.20 6000 3695400 3593400 JMD Telefilms Inds. Ltd. (Avtar Finance) 50000 26.02.09 85000 21.04.10 50000 2487500 2402500 JMD Telefi....
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....017 stated therein that "Purchased from the stock exchange and no such purchases were made on personal level. No transaction of any sort or means has been carried out with the said individual in respect of whom the notice is sent to us therefore the said point is not applicable to us." 4. M/s North Eastern Publishing & Advertising Co. Ltd. Served on the party but till the finalization of the assessment reply was not filed. 5. Harsh Dhanuka (HUF) Served on the party but till the finalization of the assessment reply was not filed. 6. M/s Zodiac Commotrade P. Ltd. Sent through Postal authorities and same were returned back remarked as "Left". 7. M/s Neelanchal Mercantile P. Ltd. Sent through Postal authorities and same were returned back remarked as "Not Known". 8. M/s Ranisati Dealer P. ltd. Sent through Postal authorities and same were returned back remarked as "Not Known". 9. M/s Runicha Construction Co. P. Ltd. Sent through Postal authorities and same were returned back remarked as "Left". Further, the A.O issued summons u/s 131 of the Act for personal attendance of two of the aforementioned exist providers, viz. (i). M/s Ru....
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....015 and 30.03.2015. Backed by the aforesaid facts, the A.O after carrying out an analysis of the scrip in question, viz. M/s JMD Telefilms Industries Ltd., therein observed that the market price of its share which was Rs. 7.93 in October, 2008 was jacked up to Rs. 145 in 8 months i.e till June, 2009. It was noticed by the A.O that within a time span of 16 months the price of the share of the aforementioned company in question was jacked up nearly 19 times. As observed by the A.O, the price of the share was thereafter maintained in the range of Rs. 62 to Rs. 145, which as per him was with a purpose that the interested beneficiaries were able to book the LTCG on sale of the shares held by them. Thereafter, as noticed by the A.O, the price of the share of the aforementioned company was made to fall freely so that the interested beneficiaries who had purchased at a high market price could avail bogus Short Term Capital Loss. It was observed by the A.O that the price of the shares had thereafter gone down to merely Rs. 7.50/-. It was inferred by the A.O that in the course of the aforesaid exercise the LTCG beneficiary would pay cash to exit entry provider or a person who wants to book a....
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....s of M/s JMD Venture Ltd. was a result of a pre-arranged method that was employed by him in connivance with the operators/brokers/promoters etc. with the sole intent to evade taxes. The A.O in order to substantiate his aforesaid conviction culled out the reasons for stamping the purchase/sale of shares of M/s JMC Ventures Ltd. as an artificially arranged transaction which was carried out by him in connivance with operators/brokers/promoters etc to evade taxes, as under : "a. Mode of acquisition of share: Assessee had purchased 100000 equity shares on preferential basis of M/s JMD Telefilms Industries Ltd. for sRs. 17,00,000/- on 26.02.2009. This was an off-market transaction and these shares were later dematerialized. Owing to share split, the number of shares with assessee swelled to 10,00,000 on 13.07.2009. Subsequently, the assessee sold 767500 of these shares on BSE through broker in F.Y. 2010-11. b. Sale of shares and unusual rise in the price: Further the assessee has sold 767500 shares for sale consideration of Rs. 6,06,49,780/- which is 4543% gain and as discussed the rise in share prices is not holding to any commercial principles and market factors. ....
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..... Backed by his aforesaid observations, the A.O held the sale proceeds of shares of Rs. 6,06,49,780/- as an unexplained cash credit u/s 68 of the Act. Also, the A.O holding a conviction that the assessee would have paid commission for facilitating the aforesaid transaction of bogus LTCG, thus, made a further addition of Rs. 36,38,987/- i.e @6% of the impugned sale proceeds of Rs. 6,06,49,780/-. Accordingly, the AO vide his order passed u/s 143(3) r.w.s 147, dated 27.12.2017 assessed the income of the assessee at Rs. 6,84,06,690/-. 5. Aggrieved, the assessee carried the matter in appeal before the CIT(A). Observing, that the gain of Rs. 5,93,45,030/- derived by the assessee from the sale of share of M/s JMD Telefilms Industries Ltd. was derived from bogus and manipulated share prices which were nothing but unexplained investment/income of the asssessee that was converted under the garb of share market investment, the CIT(A) upheld the view taken by the A.O. Accordingly, the CIT(A) sustained the addition of Rs. 5,93,45,030/- that was made by the A.O u/s 68 of the Act a/w the addition of Rs. 36,68,987/- made by him u/s 69C of the Act. The CIT(A) while upholding the view taken by th....
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....for the relevant period. 2) Transaction statement for the said period Refer Annexure 2(iii) 10.2 Analysis of the purchase and sale of shares reveals that th eassessee upplied for the shares in January 2009, paid for the shares and wsa issued shares in February 2009 and dematted the same in June/July 2009. Assessee started selling his shareholding from March 2010 and initially sold 132500 shares in march 2010, transferred 100000 shares to his wife Mrudula Gupta on 31 October 2010 and sold of the balance 767500 shareds from April 2010 to October 2010 and claims to have earned sale proceeds of Rs. 6,06,49,780/- and derived profits of Rs. 5,93,45,030/- which were claimed as exempt under Sec. 10(38) of the I.T. Act. 1961. 10.3 Assessee company and its CAs were specifically informed to file details and documents relating to the bank account copies and copies of utilization of funds, however, the CAs have not filed details and documents, especially copies of bank accounts for the entire financial year 2010-11 relevant to AY 2011-12, however these are not filed till date. 10.4 It appears from the details of share trading account that assessee traded a....
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....ber 2010 and hence went ahead with this plan jointly with persons like Purohits and/or others persons/ companies to derive the benefit of availing of claiming tax exemption for long term capital gains u/s. 10 (38) of the I.T. Act, 1961 and executed it with finesse and hence converted his unexplained income as 'long term capital gains through so called share market operations in shares of JMD Telefilms Limited and claimed tax exemption u/s. 10 (38) of the l.T. Act, 1961. Assessee does not appear to have derived such benefits in later and/or earlier assessment years. This is further confirmed by the statements of the Purohits, the directors and persons associated with the JMD Telefilms limited and the investigations made by the investigation wing of the income tax department at Kolkata. In nutshell, the entire profits of Rs. 5,93,45,030/- derived from the so called sale of JMD Telefilms Limited were derived from bogus and manipulated share prices and were nothing but unexplained investments/income of the assessee which was converted under the garb of share market investments and purchase/sale and hence the profits of Rs. 5,93,45,030/-were correctly and legally taxed as income u/s....
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.... aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We have heard the ld. authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. As the assessee has assailed the validity of the jurisdiction assumed by the A.O for reopening his case under Sec. 147 of the Act, therefore, we shall first deal with the maintainability of the said claim. As is discernible from the records, information regarding bogus LTCG/STCL and its beneficiaries was uploaded by the Directorate of Systems, which in turn was based on the in-depth investigations that were carried out by the Directorate of Investigation, Kolkata. As stated by the A.O, the name of the assessee had figured in the list of the beneficiaries of bogus LTCG/STCL. On the basis of the aforesaid information the case of the assessee was reopened by the A.O u/s 147 of the Act. The reasons to believe on the basis of which the case of the assessee was reopened read as under : "2. The Directorate of In....
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....g into consideration the investigation done by the Investigation wing of Income-tax department and in depth analysis of data by undersigned, I believe that KMLESH NEMICHAND GUPTA has availed bogus entry of long term capital gain through unfair means. 5. In view of the above facts, I have reason to believe that the income of at least Rs. 5,95,15,091/- chargeable to tax has escaped assessment for A.Y 2011-12 by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year and it is fit case for issuing notice u/s 148 of the Income Tax Act, 1961." Before us, the ld. Authorized Representative (for short "A.R") for the assessee has assailed the validity of the jurisdiction assumed by the A.O for reopening the case of the assessee on two fold reasons, viz. (i) that the case of the assessee had been reopened on the basis of borrowed satisfaction of the Directorate of Investigation, Kolkata; and (ii). that the reassessment proceedings had been initiated on the basis of suspicion, conjectures and surmises, without there being any concrete material or evidence to support the same. Per contra,....
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....n the backdrop of the aforesaid factual position, we are unable to comprehend as to on what basis it is claimed by the ld. A.R that that A.O had reopened the case of the assessee on the basis of a borrowed satisfaction and/or on the basis of suspicion, conjectures and surmises, de hors any concrete material. As observed by us hereinabove, the A.O had before him sufficient material/information on the basis of which he had arrived at a bonafide belief that the income of the assessee chargeable to tax had escaped assessment. We may herein observe that at the stage of reopening of a case u/s 147 of the Act, the A.O is only required to have a cause or justification to know or suppose that income of the assessee chargeable to tax had escaped assessment and, no obligation is cast upon him to have finally ascertained the said fact by legal evidence or conclusion. Our aforesaid view is as per the mandate of the judgment of the Hon'ble Supreme Court in the case of ACIT Vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 291 ITR 500, wherein the Hon'ble Court had observed as under : 16. Sec. 147 authorises and permits the AO to assess or reassess income chargeable to tax if he has reaso....
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.... credit u/s 68 of the Act. Controversy involved in the present appeal hinges around the declining of the assessee"s claim for exemption of the LTCG of Rs. 5,93,45,030/- on sale of shares of M/s JMD Telefims Industries Ltd. [formerly known as Avtar Finance and Management Consultants) and subsequently known as M/s JMD Ventures Ltd. (Scrp Code : 511092) u/s 10(38) of the Act. Shorn of unnecessary details, the assessee had in his return of income for the year under consideration claimed to have sold 7,67,500 shares of M/s JMD Ventures Ltd. for a consideration of Rs. 6,06,49,780/- after holding the same for a period of more than 1 year. Long Term Capital Gain (LTCG) of Rs. 5,93,45,030/- on the aforesaid sale transactions was claimed by the assessee as exempt u/s 10(38) of the Act. Information was gathered by the A.O from the data related to bogus LTCG/STCL that was uploaded by the Directorate of Systems, which in turn was based on the in-depth investigations as regards accommodation entry activities qua bogus LTCG/STCL carried out by the Directorate of Investigation, Kolkata, wherein the name of the assessee is stated to have figured as a beneficiary of such bogus transactions. Backed b....
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....from the assessee. The replies furnished by the aforementioned three parties in compliance to notices issued to them u/s 133(6), read as under : Sr. No. Name of the Parties Remarks 1. M/s BP Fintrade P. Ltd. Reply received on 10.11.2017 stated therein that "We had been dealing through BP Equities P. Ltd." 2. Shri Dipak Kumar Agarwal Reply received on 09.11.2017 stated therein that "I do not have any transaction with Shri Kamlesh N. Gupta in shares/securities or otherwise before, during and after A.Y. 2011-12" 3. M/s Navdurga Investment Consultants P. ltd. Reply received on 04.12.2017 stated therein that "Purchased from the stock exchange and no such purchases were made on personal level. No transaction of any sort or means has been carried out with the said individual in respect of whom the notice is sent to us therefore the said point is not applicable to us." The A.O further issued summons u/s 131 of the Act to two of the aforementioned parties who had purchased the scrip of M/s JMD Telefilms Industries Ltd. from the assessee, viz. (i). M/s Runicha Construction Co. P. Ltd; and (ii). M/s BP Fintrade P. Ltd. Although, the notice u/s 133(6) sen....
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....ial trading. During the course of the assessment proceedings, the A.O after referring to the modus operandi that was adopted by accommodation entry providers for providing bogus LTCG/STCL entries to the beneficiaries had referred to a list comprising of 28 brokers/6 operators/2 promoters who as per the information made available to him by the Directorate of Investigation, Kolkata had played a role in manipulating the scrip of M/s JMD Telefilms Industries Ltd. Out of the aforementioned list of persons the A.O recorded the statements of a select few, viz. (i). Shri. Pravin Kumar Agarwal, Entry Operator; (ii). Shri. Dhruv Narayan Jha, Promoter; (iii). Shri. Kailash Purohit, Promoter; and (iv). Shri. Anuj Aggarwal, Broker. On a perusal of the respective statements of the aforementioned persons (which forms part of the assessment order), we find that in neither of the said statements any allegation as regards obtaining of any accommodation entry by the assessee, viz. Kamlesh Nemichand Gupta finds any mention. In fact, in neither of the said statements the name of the assessee had even figured. For a fair appreciation of the statements of the aforementioned respective persons we deem it ....
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....mpanies to whom the same were provided, he refrained from answering the same and stated that the same would be explained by Shri. Jagdish Purohit. (D). Shri. Anuj Aggarwal : Statement of Shri. Anuj Aggarwal, broker, was recorded u/s 131 of the Act on 21.03.2015 by the DDIT(Inv.), Kolkata during the course of the survey conducted u/s 133A on certain concerns, viz. M/s Korp Securities Ltd.; M/s Divyadrishti Traders Pvt. Ltd; and M/s Divyadrishti Merchants Pvt. Ltd. It was stated by him that he was engaged in the business of share trading & share broking through Korp Securities Ltd. On being queried as regards the nature of the business activities carried out by the companies in which he was a director, viz. Korp Securities Ltd; Asteroids Infra LLP; and Silky Moon Infra LLP, it was stated by him that while for Korp Securities Ltd. was a share trading company, no actual business was being carried out by the other companies which were created for the sole purpose of providing accommodation entries in form of LTCG to various beneficiaries. On being further queried about the names of the listed companies/scrips in which he was providing accommodation entries of LTCG, he ....
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.... against the assessee without confronting the same to him a/w affording of an opportunity to cross-examine the said persons. In this regard, it would be relevant and pertinent to point out that the assessee vide his letter dated 18.03.2020 (Page 71 of "APB") had specifically requested for full legible copies of the statements of all the 32 parties that were relied upon by the A.O. Our aforesaid view is fortified by the judgment of the Hon'ble Supreme Court in the case of Andaman Timber Industries Vs. Commissioner of Central Excise (2015) 281 CTR 241 (SC). In its aforesaid judgment, it was observed by the Hon'ble Apex Court that not allowing the assessee to cross-examine witnesses by the Adjudicating Authority though statements of those witnesses were made as basis of the impugned order amounted to a serious flaw which rendered the impugned order nullity as it amounted to violation of principles of natural justice. 11. We shall now advert to the documentary evidence/material that was placed on record by the assessee in order to drive home his claim of having carried out genuine transactions of purchase/sale of shares of JMD Telefilms Industries Ltd. As is discernible from the ord....
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....2010 to October, 2010 and the LTCG of Rs. 5,93,15,038/- arising therefrom was claimed by him as exempt u/s 10(38) of the Act. Copies of the contract notes and the transaction report of Motilal Oswal Securities Ltd. evidencing the aforesaid transaction of sale of shares was filed by the assessee before the lower authorities. As regards the initial off-market purchase of one lac shares of JMD Telefims Industries Ltd. by the assessee, we may herein observe that an off-market transaction for purchase of shares is not illegal. As observed by us hereinabove, the purchase transaction of shares was carried out by the assessee vide account payee cheque and the sale of shares have suffered STT, service tax, total turnover tax, stamp duty charge etc. As is discernible from the orders of the lower authorities, we find that neither of them had dislodged the authenticity of the aforesaid documentary evidence that was filed by the assessee to support his claim of having carried out genuine transactions of purchase/sale of shares of JMD Telefilms Industries Ltd. 12. As stated by the ld. A.R, and rightly so, the observations of the A.O are found to be more or less backed by information received ....
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....rators for laundering his unaccounted money in the garb of tax exempt LTCG, cannot justify drawing of any adverse inferences as regards the transaction of purchase/sale of shares in question by the assessee. As is discernible from the assessment order, one of the major aspect that had weighed in the mind of the A.O for stamping the transaction of purchase/sale of shares of JMD Telefilms Industries Ltd. by the assessee as a structured transaction with a purpose of facilitating tax evasion in the garb of a bogus claim of tax exempt capital gain u/s 10(38) of the Act and laundering of his ill-gotten money; was the fact that within a short span there was a steep rise in the price of shares of JMD Telefilms Industries Ltd., i.e by 19 times in 8 months i.e from Rs. 7.93 in October, 2008 to Rs. 145 in June, 2009, which trade pattern of the aforesaid company as per the A.O did not move along with the commercial principles and market factors; and the financials of the company also did not show any reason for the extraordinary performance of its stock. In our considered view, though the aforesaid data gathered by the A.O being based on the facts cannot be faulted on our part, but we are unab....
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....Ltd. by him, we are afraid that the unsubstantiated claim of the A.O that the assessee had converted his unaccounted money by taking fictitious LTCG in a pre-planned manner cannot be accepted. At this stage, we may herein observe, that the very basis adopted by the CIT(A) for sustaining the view of the A.O that the assessee had obtained a bogus entry of LTCG, viz. that the assessee had only after a period of 2 ¼ years i.e in the year 2014 invested in shares of another company, i.e Justdial company; that the assessessee had not revealed the user of the sale proceeds of the shares of JMD Telefilms Industries Ltd; that the assessee did not derive such gain from purchase/sale of shares in the preceding/succeeding years; that why did the assessee not invest the surplus funds in the any of the companies in which he was a director and had invested the same in a company whose antecedents were not even known to him, are observations wherein the CIT(A) had tried to put himself in the arm chair of the assessee and indirectly had called for an explanation as to why the investments were not made by him or; if they were so made, then, why they were not made in a desired manner. At this st....
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....stigation Wing of the Income Tax Department in Kolkata, Delhi, Mumbai and Ahmedabad on penny stocks, which sets out the modus operandi adopted in the business of providing entries of bogus LTCG. However, the reliance placed on the report, without further corroboration on the basis of cogent material, does not justify his conclusion that the transaction is bogus, sham and nothing other than a racket of accommodation entries. We do notice that the AO made an attempt to delve into the question of infusion of Respondent's unaccounted money, but he did not dig deeper. Notices issued under Sections 133(6)/131 of the Act were issued to M/s Gold Line International Finvest Limited, but nothing emerged from this effort. The payment for the shares in question was made by Sh. Salasar Trading Company. Notice was issued to this entity as well, but when the notices were returned unserved, the AO did not take the matter any further. He thereafter simply proceeded on the basis of the financials of the company to come to the conclusion that the transactions were accommodation entries, and thus, fictitious. The conclusion drawn by the AO, that there was an agreement to convert unaccounted money b....
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....ey for getting benefit of LTCG, as alleged. In the absence of any such material that could support the case put forth by the Appellant, the additions cannot be sustained. 12. Mr. Hossain's submissions relating to the startling spike in the share price and other factors may be enough to show circumstances that might create suspicion; however the Court has to decide an issue on the basis of evidence and proof, and not on suspicion alone. The theory of human behavior and preponderance of probabilities cannot be cited as a basis to turn a blind eye to the evidence produced by the Respondent. With regard to the claim that observations made by the CIT(A) were in conflict with the Impugned Order, we may only note that the said observations are general in nature and later in the order, the CIT(A) itself notes that the broker did not respond to the notices. Be that as it may, the CIT(A) has only approved the order of the AO, following the same reasoning, and relying upon the report of the Investigation Wing. Lastly, reliance placed by the Revenue on Suman Poddar v. ITO (supra) and Sumati Dayal v. CIT (supra) is of no assistance. Upon examining the judgment of Suman Poddar (supr....
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....hase/sale of shares was not an accommodation transaction for conversion of cash into accounted or regular payment. Insofar the discrepancy as pointed out by the stock exchange as regards the client code was concerned, the Hon'ble High Court upheld the view taken by the Tribunal that the same would not suffice to prove that the share transactions were bogus or sham. 13. We, thus, in the backdrop of our aforesaid deliberations are of the considered view that de hors any cogent material made available on record by the department which would prove to the hilt that the assessee had not carried out any genuine transaction of purchase/sale of shares of JMD Telefilms Industries Ltd. and, in the garb of bogus entry of a tax exempt LTCG u/s 10(38) of the Act, laundered his unaccounted money, the assessee"s duly substantiated claim of having carried out genuine transaction of purchase/sale of shares of JMD Telefilms Industries Ltd. which is duly supported by him on the basis of documentary evidence, could not have been dislodged. Accordingly, for the reasons discussed at length by hereinabove, not finding favour with the view taken by the lower authorities, we herein set-aside the orders o....