TaxTMI 
TaxTMI 
2024 (3) TMI 1502
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....Mumbai under PA No. AAHPD4722B. 2. The appellate order u/s. 250 for the A.Y. 2015-16 in my case was passed by the NFAC, Delhi on 28-10-2022 and the same was downloaded on the portal of Income Tax by the NFAC, Delhi, presumed to be, on the same day. However, no such information or intimation was either received on the e-mail or SMS by me and as such I was not aware of such appellate order u/s. 250 passed by the NFAC, Delhi on 28-10-2022 and therefore I could not file an appeal before the ITAT, Mumbai within the prescribed time. Recently while log-in on Portal of Income Tax I came to know about the appellate order u/s. 250 dated 28-10-2022 dismissing my appeal. Thereafter I have downloaded the appellate order. I was advised by tax consultant to file an appeal before the second appellate authority with request to condone the delay. Since the order u/s. 250 came to my knowledge recently. I could not present the appeal within 60 days from the date of service of the order u/s. 250. 3. That I have not been served with copy of the order u/s. 250 physically. 4. That the delay in presenting the appeal was on account of sufficient and reasonable cause. ....
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....rom the details filed by the assessee that assessee has earned Capital Gain of Rs..1,08,85,225/- from sale of shares of M/s Parag Shilpa Investment Ltd (now known as M/s. PS IT Infrastructure & Services Ltd). The details of purchase and sale of this particular scrip i.e. Parag Shilpa Investment Ltd were examined. The assessee has submitted the details regarding the purchases of the shares of this company. 8. Assessing Officer issued summons under section 131 of the IT Act to the assessee and the statement of the assessee was recorded under oath on 20.11.2017. Assessing Officer in his order from Page No. 3 to 11 has elaborately analysed various parameters with regard to claim of Bogus long term capital gain such as modus operandi to generate bogus LTCG, Misuse of exemption on Long Term Capital Gains tax for money laundering and findings and investigation of the Wing (for the sake of brevity the same is not reproduced below). Subsequently, Assessing Officer issued notice under section 142(1) of the Act requiring assessee to explain with evidences why the Long Term Capital Gain should not be treated as non-genuine and sale consideration received on the penny stock should not b....
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....rked out an arrangement in which the shares were acquired by the assessee, the share prices were rigged and then with the help of entry operators by routing the cash, shares were sold at high price to arrive at tax free capital gains. d. Analysis of transactions: Facts revealed that such trading transactions of purchase and sale of shares are not been effected, for commercial purpose but to create artificial gains, with a view to evade taxes- i. Transactions of shares were not governed by market factors prevalent at relevant time in such trade, but same were product of design and mutual connivance on part of assessee and the operators. ii. The assessee resorted to a preconceived scheme to procure long-term capital gains by way of price difference in share transactions not supported by market factors. iii. Cumulative events in such transactions of shares revealed that same were devoid of any commercial nature and fell in realm of not being bona fide and, hence, impugned long term capital gain is not allowable, ..... Thus considering the findings of the search/ survey, inquiries conducted in the case of assessee, brokers, operator....
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....ming such addition the ld. CIT (A) omitted to consider relevant factors, considerations, principles and evidences while he was, influenced and prejudiced by and factors. 2. The ld. CIT (A) erred in holding that levy of interest u/s. 234B and 234C of the Income Tax Act, 1961 is consequential. The denies his liability for such interest. 3. The ld. CIT (A) erred in holding that the ground raised disputing initiation of penalty is premature. The Appellant denies his liability for such penalty. 4. The appellant was prevented by sufficient and reasonable cause from presenting the present appeal within the time and therefore prays your Honour to condone the delay in presenting the appeal and admit the appeal in the fairness of law. The craves leave to add, alter, amend or delete any or all of the above grounds of appeal." 12. At the time of hearing, Ld.AR of the assessee brought to our notice relevant facts relating to the case and reiterated the submissions made before the Ld. CIT (A) and contended the action of the Ld. CIT (A) in sustaining the action of the Assessing Officer. Ld.AR of the assessee submitted various documentary evidences in s....
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....ous transactions relating to entry, price rigging or exit providers. Even in the SEBI report, there is no mention or reference to the involvement of the assessee. We can only presume that the assessee is one of the beneficiary in this transactions merely as an investor who has entered in investment fray to make quick profit. Even the assessing officer has applied the presumptions and concept of human probabilities to make the additions without their being any material against the assessee. We observe that the Hon'ble Bombay High Court in the case of Pr. CIT v. Ziauddin A Siddique in Income Tax Appeal No. 2012 of 2017 dated 04.03.2022 held as under: - "1. The following question of law is proposed: "Whether on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal was justified in deleting the addition of Rs. 1,03,33,925/- made by AO u/s 68 of the I.T. Act, 1961, ignoring the fact that the shares were bought/acquired from off market sources and thereafter the same was demated and registered in stock exchange and increase in share price of Ramkrishna Fincap Ltd. is not supported by the financials and, therefore, the amount of LT....
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....ility of these companies, he argues that it can be safely concluded that the investments made by the present Respondents were not genuine. He submits that the AO made sufficient independent enquiry and analysis to test the veracity of the claims of the Respondent and after objective examination of the facts and documents, the conclusion arrived at by the AO in respect of the transaction in question, ought not to have been interfered with. In support of his submission, Mr. Hossain relies upon the judgment of this Court in Suman Poddar v. ITO, [2020] 423 ITR 480 (Delhi), and of the Supreme Court in Sumati Dayal v. CIT, (1995) Supp. (2) SCC 453. 9. Mr. Hossain further argues that the learned ITAT has erred in holding that the AO did not consider examining the brokers of the Respondent. He asserts that this holding is contrary to the findings of the AO. As a matter of fact, the demat account statement of the Respondent was called for from the broker M/s SMC Global Securities Ltd under Section 133(6) of the Act, on perusal whereof it was found that the Respondent was not a regular investor in penny scrips. 10. We have heard Mr. Hossain at length and given our thoughtfu....
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....t there was an agreement to convert unaccounted money by taking fictitious LTCG in a pre-planned manner, is therefore entirely unsupported by any material on record. This finding is thus purely an assumption based on conjecture made by the AO. This flawed approach forms the reason for the learned ITAT to interfere with the findings of the lower tax authorities. The learned ITAT after considering the entire conspectus of case and the evidence brought on record, held that the Respondent had successfully discharged the initial onus cast upon it under the provisions of Section 68 of the Act. It is recorded that "There is no dispute that the shares of the two companies were purchased online, the payments have been made through banking channel, and the shares were dematerialized and the sales have been routed from de-mat account and the consideration has been received through banking channels." The above noted factors, including the deficient enquiry conducted by the AO and the lack of any independent source or evidence to show that there was an agreement between the Respondent and any other party, prevailed upon the ITAT to take a different view. Before us, Mr. Hossain has not been able....
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....thus find no perversity in the Impugned Order. 14. In this view of the matter, no question of law, much less a substantial question of law arises for our consideration. 15. Accordingly, the present appeals are dismissed." 17. Even otherwise, the Coordinate Bench of the Tribunal in the case of Yogesh Thakkar v. DCIT in ITA No. 1612/MUM/2021 dated 03.02.2023 dealt with identical scrip wherein the assessees have also earned Long Term Capital Gain at the high volume and the Tribunal ultimately decided the issue in favour of assessee. For ready reference, the conclusion drawn by the ITAT is reproduced below: - "Shri Yogesh Thakkar - ITA No. 1612/Mum/2021 - Asst Year 2015-16 - Assessee Appeal 9. Though the assessee has raised several grounds before us, we find that the effective issue to be issued in this appeal is as to whether the ld. CIT (A) was justified in confirming the action of the ld.AO in denying the exemption claimed u/s 10(38) of the Act in respect of long term capital gain derived from sale of shares of Greencrest Financial Services Ltd and PS IT Infrastructure & Services Ltd, in the facts and circumstances of the case. The in....
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....d Glass Inds. Ltd.) on 12/02/2013 having a face value of Rs. 10/- and premium of Rs. 2/- per share and consideration paid thereon was Rs 24,00,000/-. Subsequently, the shares having face value of Rs. 10/- were split into 10 share having face value of Re.1/-. Post split, the total shares credited into demat account were 2000000 shares. During the year under consideration, the assessee has sold 765000 shares after holding for a period of 18 months and balance share holding still remains unsold as on 31/03/2022. Similarly, the assessee purchased 10000 shares of Crescent Digital Technologies Pvt Ltd. of face value of Rs. 10 for a consideration of Rs. 1,00,000/- on 28/06/2012 in off-market. Crescent Digital Technologies Pvt Ltd. subsequently amalgamated with Parag Shilpa Investment Ltd in accordance with a scheme of amalgamation and Parag Shilpa was subsequently renamed "PS IT Infrastructure & Services Ltd." or PS IT in short. These shares were sold during the F.Y. 2014-15 after holding for a period of 2 years. For both the shares, the payments for purchase of shares were made by the assessee by account payee cheques out of sources duly disclosed in the books of....