TaxTMI 
TaxTMI 
2025 (2) TMI 1383
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....0,150/- b. Addition of commission paid @ 3% of the LTCG of Rs. 65,075/- Total - 22,85,225/- 2. Against these additions assessee preferred appeal before Ld. CIT(A), however, the said appeal of the assessee was dismissed. Therefore, aggrieved by the order of Ld. CIT(A) assessee has preferred the present appeal before me, on the grounds mentioned herein below: 1. The Assessment Order passed under section 147 r.w.s144B is against the provision of Income Tax and liable to be quashed on account of the following .- (i) Notice dated 22/07/2022 issued under section 148 of the Act is invalid and bad in law as the same was issued without DIN. Separate intimation letter dated 23/07/2022 showing DIN No. cannot validate the notice issued on 22/07/2022 under section 148 of the Act. (ii) Notice under section 148 of the Act was issued by JAO who had no jurisdiction to issue such Notice after 29/03/2022 and it is only FAO can issue notice under section 148 of the Act, as provided in section 151 of the Act. 2 On the facts and circumstances of the case and in law the C.I.T (Appeals) has erred in confirming the addition made under section 68 of the Inc....
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.... 65,075/- Total Rs. 22,85,225/- 2. ASSESSMENT PROCEEDINGS 2.1 The appellant had shown Long Term Capital Gain of Rs. 21,69,150/- and has claimed the same as exempt under section 10[38] of the Income Tax Act, 1961. Ongoing through the working of the capital gain the Assessing Officer has observed that the appellant has shown purchased of 5,100 shares of M/s. Ojas Asset Reconstruction Co. Ltd. on 02/04/2014 for Rs. 51,000/-, These shares were brought at the face value of Rs. 10/- per shares. During the year under consideration the appellant had sold these 5,100 shares during the period 09/09/2015 to 16/09/2015 netting a gain of Rs. 21,69,150/-. 2.2 The Assessing Officer was received the information that, the Appellant had sold shares in scrip M/s. Ojas Asset Reconstruction Co. Ltd [new name is Toyam Industries Ltd]. In the meanwhile, the Director of Investigation Wing, Delhi had carried out country wide investigation in order to unearth the organized racket generating Long Term Capital Gain which is exempt from Income Tax. 2.3 The Assessing Officer, after the examination of the information provided by the Investigation Wing and return of in....
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....ACT IN RESPECT OF LTCG CLAIMED AS 5EXEMPT U/S.10[38] OF THE I.T. ACT 1961 - RS.22,20,150/- 3.1 The Appellant had purchased 5100 shares of M/s. Ojas Asset Reconstruction Co. Ltd. for Rs.51,000/- on 02/04/2014 through Shreenath Commercial & Finance Ltd. Following documents were submitted in support of the purchase of these shares. i] Copy of Contract note ii] Demat Statement III] Bank statement iv] Ledger account of Broker 3.2 The Appellant has sold 5,100 shares during the 09/09/2015 to 16/09/2015 on Bombay Stock exchange through Broker M/s. Prabhudas Liladhar Put. Ltd., which is a leading public sector stock broker at the prevalent market rates then. In support of the sale the appellant has furnished the following detail to the Assessing Officer during the course of Assessment proceedings. i] Copy of Contract note ii] Demat Statement iii] Form 10DB iv] Global Report v] Bank statement vi] Ledger account of Broker 3.3 Since, the period of holding of equity shares was more than 12 months, capital gain earned was long term in nature subject to STT and therefore exempt under section 10[38] ....
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....th, is worth mentioning which is being reproduced as under ". Thus, the impugned addition has been solely on the ground that the name of scrip sold appears in the penny stocks investigated by Investigation wing. There is no other evidence except the above reports/ findings which are general in nature [not in any way pointing to the Appellant in particular] was available with the Assessing Officer to reject the claim of the Appellant in respect of Long-term capital gain. There are no circumstantial as well as direct evidence against the Appellant to prove that Long term capital gain shown by the Appellant is not natural but arranged one. Hence the addition made by the Assessing Officer is arbitrary and unjustified. There is no mention as to how has he connected the scrip investigated by Investigation Wing, Delhi and that the appellant is an accommodation entry beneficiary. 3.9 The fact that these shares have appreciated in value to a great extent does not mean that the capital gain earned is bogus. It may be appreciated that the purchase transactions have taken place through banking channels, shares are in dematerialized form and the sale transactions have taken place on re....
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....h Court in the case of I. T. A. 125/2020, I.T.A. 130/2020 and I.T.A.131/2020. The Hon'ble High Court has dismissed the appeal of ITAT stating that, 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. It e citturther held by Court that, reliance placed on Suman Poddar vs. ITO and Suvas Dayal vs. CIT is of no assistance and held that this case is quite different fromatthe factual matrix at hand. Similarly, the case of Suman Dayal vs. CIT [Supra] tomums on its specific facts. It was held that there cannot be addition without any cogent material on record. Statements relied by the Assessing Officer in the assessment proceedings were not recorded by the Assessing Officer but they were preexisting statements recorded by the Investigation Wing and the same cannot be sole basis of assessment without conducting proper enquiry and examination during the assessment proceedings itself. In our humble opinion, neither the Assessing Officer conducted any enquiry nor has brought any clinching evidence ....
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....some time and very high at some other time. Tax authorities are disbelieving deals in such stocks and trying to brand them bogus or not genuine. It is found that even some of NAVRATNA and MAHARATNA PSU have been traded at very low price some times and where penny stock, if the price or ratio between high and low price is considered from the point of view as adopted by tax authorities in relation to many such stocks. The following table shows life time high and low price of shares of some companies in different segment of business. These companies are PSU / some companies have become Private sector companies but still stake of government is quite high. 3.20 Hence the upward trend in respect of the prices cannot be a circle to treat the capital gain as non-genuine. 3.21 The genuineness of the transaction has been clearly proved by the appellant beyond doubt by submitting the following documents; - i]. Contract notes issued by the broker which are system generated and which clearly mentions the following details- a] Details of the broker b] DP ID c] Client ID d] Contract number with trade date, order no, order time, trade ....
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....whose statement notice was issued to the assessee for bogus long term capital gain. But in this case, neither statement was supplying to the assessee nor cross examination was allowed by the learned A.O. Therefore, in our considered opinion, assessee has discharged his onus and no addition can be sustained in the hands of the assessee." 3. Thus, the Tribunal has recorded the finding of fact that the assessee discharged his onus of establishing that the transactions were fair and transparent and further, all the relevant details with regard to such transactions were furnished before the Income Tax authorities and the Tribunal also took notice of the fact that some of the shares also remained in the account of the appellant. 4. We take notice of the fact that the assessee has a Demat Account maintained with the ICICI Securities Ltd. and has also furnished the details of such bank transactions with regard to the purchase of the shares. In the last, the Tribunal took notice of the fact that the statements recorded by the investigation wing of the Revenue with regard to the Tax entry provided were informed to the assessee despite giving him opportunity to meet such an ....
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....ng in the market on the shares of RFL" 3. Therefore we find nothing perverse in the order of the Tribunal. 5. In our view, the Tribunal has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that question as pressed raises any substantial question of law 6. The appeal is devoid of merits and it is dismissed with no order as to costs." 3.25 We are enclosing herewith a latest order of Hon'ble, CIT[A] NFAC, Delhi has received in the case of Sulochanadevi A. Agrawal wherein on the identical facts and circumstances, the Hon'ble CIT[A] has deleted the addition made after following observations: - "9. Thus, considering the totality of the facts and circumstances, keeping in view the position of law, and respectfully following the above binding judicial precedents, I find that the transaction of purchase and sale of shares of M/ s Fiberweb India Limited (FIL) undertaken by the appellant was a genuine financial transaction, and not a colourable device to evade taxes. The claim o....
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.... bogus penny stock transactions and companies to whom sold shares belonged were bogus in nature. The Tribunal observing that assessce by submitting records of purchase bills, sale bills, demat statement, etc., had discharged his onus of establishing said transactions to be fair and transparent, same not being carned from bogus companies was eligible for exemption under Section 10(38) of the Act The High court by impugned order held that no substantial question of law arose from Tribunal's order. The SC dismissed the SLP against said impugned order. The appellant also relied in the judgement of Hon'ble Apex Court in the case of PCIT vs. Renu Aggarwal 153 taxmann.com 579 (SC) wherein the Hon'ble Apex Court dismissed the SLP filed by the Department against the order of High Court which held that were Assessing Officer disallowed exemption claimed by the assessee under Section 10(38) of the Act and made additions, alleging involvement in penny stock which were misused for providing bogus accommodation of Long Term Capital Gain (in short "LTCG"), however, there was lack of adverse comments from stock exchange and officials of company involved in these transactions and no mat....
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....h help assessee to present its case of genuine investments, are as under. - 11 High Court of Gujarat in case of Commissioner of Income-tax- I Vs. Maheshchandra G. Vakıl [2013]40 taxmann.com 326 (Gujarat) held that Where assessee proved genuineness of share transactions by contract notes for sale and purchase, bank statement of broker, demat account showing transfer in and out of shares, as also abstract of transactions furnished by stock exchange, Assessing Officer was not justified in treating capital gain arising from sale of shares as unexplained cash credit. High Court of Gujarat in case of Commissioner of Income-tax-I Vs. Himani M Vakil [2013]10 taxmann.com 326 (Gujarat) held that where assessee duly proved genuineness of share transactions by bringing on record contract notes for sale and purchase, bank statement of broker and demat account showing transfer in and out of shares, Assessing Officer was not justified in bringing to tax capital gain arising from sale of shares as unexplained cash credit. IIII Tribunal at Kolkata in case of DCIT us Sunita Khema in ITA nos 714 to 718/ kol/ 2011 has held that :- The AO cannot treat a transact....
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....s) on this point. VI] As recently held bys Kolkata Tribunal in Dolarrai Hemani US. ITO (ITAT Kolkata) I.T.A No. 19/ Kol/ 2014 vide order dated 02.12.2016, the fact that the stock is thinly traded and there is unusually high gain is not sufficient to treat the long-term capital gains as bogus when all the paper work is in order. The revenue has to bring material on record to support its finding that there has been collusion / connivance between the broker and the assessee for the introduction of its unaccounted money. VII] Long-term capital gains on sale of "PENNY" stocks cannot be treated as bogus & unexplained cash credit if the documentation is in order. Farrah Marker vs. ITO (ITAT Mumbai) ITA No. 3801/ Mum/2011 vide order dated 27.04.2016 VIII] Further Ahmedabad Tribunal in Manojkumar Sarawagi (HUF) (ITAT 'A' Bench, Ahmedabad Order dated 16.3.2012 in ITA No. 3233 & 3156/ Ahd/2010) has held that evidence and explanation of the assessee support the case of the assessee that the assessee entered into genuine transaction. As per the rulings, details provided clearly prove the sources of sales of the shares; therefore, no addition was required to be....
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.... s 68 of the IT Act X] Similar view was upheld in Jagdish Prasad Goel (ITAT 'C' Bench, Kolkata, order dated 13.4.2011 in ITA No.541/ Kol/2010). As assessee had filed bills, vouchers, contractor's note and also detail of transactions of sale and purchase of shares, which had been routed through banking channels and Assessing Officer had not found any defect in assessment order, same could not be treated as bogus[2014] 45 taxmann.com 420 (Allahabad) XII] As documentary evidence was produced to establish genuineness of claim, the transactions were not sham and bogus [2012] 20 taxmann. com 529 (Bombay) 3.32 Reliance is also placed on the decision of Bombay High Court in the case of CIT v. Mukesh Ratilal Marolia [ITA No.456 of 2007]: - The assessee had sold the shares of four companies, namely M/s. Alang Industrial Gases Ltd. Mobile Telecommunication Ltd., M/s. Rashel Agrotech Ltd. and M/s. Sentil Agrotech Ltd, which were purchased during the year 1999-00 and 2000-01. The entire sale consideration amounting to Rs. 1,41,08,484/- was utilized for the purchase of a flat at Colaba, Mumbai and accordingly benefit of section 54E of the ....
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....cepted the appeal of the assessee and deleted the addition made on account of unexplained deposits on ground that it was a genuine transaction pf purchase of shares through stock broker 'D' and also the sale thereof through "K" and the assessee had assessed the genuine long term capital gain. It was held by the High Court that on the basis of the documents produced by the assessee in appeal. The commissioner [appeals], recorded a finding of fact that there was a genuine transaction of purchase of share by the assessee on 16/03/2001 and sale thereof on 21/03/2002. The transactions of sale and purchase were as per the valuation prevalent in the stock exchange. Such finding of fact has been recorded on the basis of evidence produced on record. The Tribunal has affirmed such finding. Such finding of fact is sought to be disputed in the present appeal. The finding of fact recorded by the Commissioner [Appeals] does not give rise to any question[s] of law as sought to be raised in the instant appeal. Hence, the revenue's appeal is dismissed. 3.35 Attention is also invited to the decision of Udit Agarwal vs DCIT [I.T.A. No 1839/kol/2017] 26/ 12/2018- ....
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....name lending transactions 'only'. The assessment of the assessee was proposed to be reopened on the basis of this statement. The Apex Court held that re-assessment proceedings must be constituted by 'reasons to believe' based on relevant material on hand. There must be a live connection between the materials and the belief. If the materials itself were vague, then the belief founded on the same would be as good as non-existent. In the instance case, there was only general statement by the lender that he had indulged in name lending transactions 'only without naming the assessee or referring to his loan transaction. The same was held not to constitute good material for founding the belief that income has escaped assessment The Supreme Court therefore upheld the High Court's action in quashing the reassessment proceedings. B] In the case before the Culcutta High Court namely SP Agarwal vs. ITO [1983] 140 ITR 1010 [cal.] the assessment of the assessee was proposed to be re-opened on the ground that the lender had given a confessional statement that all his loan transaction were bogus. The Culcutta High Court, following the decision of the Supreme Court....
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.... Pooja Mittal Vs. DCIT ITA No. 3311-3312-3313- 3314/ Mum/2019 Mahendra B. Mittal HUV Vs. DCIT ITA No. 3426/ Mum/ 2019 Mahendra B. Mittal Vs. DCIT ITA No. 3264-3247-3265- 3248/M/2019 12 Himanchu Chowdhary Vs. ITO ITA No. 7772/ Del/ 2017 13 Sumita Khemta Vs. ACIT ITA No. 389/ Del/2018 14 Asha Nahar Vs. ITO ITA No. 2193/ Mum/ 2016 15 Suresh Gupta Vs. ITO ITA No. 1730/ Kol/ 2017 16 Kantaben Kubadia VSITO ITO No. 1937/ Mum/2018 17 Jayesh S. Vira Vs. ACIT ITA No. 72 & 73/ Mum/2021 3.41 In view of the above, it is submitted that, Long Term Capital Gain earned by the appellant is completely genuine and addition made on this count may kindly be deleted and oblige. 4. B] ADDITION U/S.69C OF THE ACT IN RESPECT OF 3% COMMISSION PAID ON TRANSACTION VALUE OF LTCG .- RS.65,075/- 4.1 The Assessing Officer has made an addition of a sum of Rs 65,075/- on account of commission paid by the appellant at the rate of 3 per cent of sale consideration of shares during the year under reference by invoking the provisions of section 69 of the Act. 4.2 The appellant cont....
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.... c. Form 10DB d. Global Report e. Bank Statement f. Ledger Account of broker 7. It was further submitted that the broker through whom the assessee had sold share on BSE one of the leading public sector stock broker and the shares have been sold at prevalent market rates. After having gone through the documents placed on record by the assessee, it is evident that the purchase transaction have taken place through banking channel and the shares were also sold through banking channel and the said sale was subjected to security transaction tax (STT) and have been sold through a 'recognized stock exchange', therefore apparently leaving no scope for share price manipulation by the assessee. From the facts I also gathered that the assessee had sold the said shares in tranches on different dates therefore prima-facie it can be inferred that assessee did not collude with operators for obtaining bogus long term capital gains. 8. In the order of assessment the exemption of long term capital gain was denied to the assessee mainly on account of the following reasons: a. Investigation done by Director of Investigation b. Statement of....
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....s which are not repeated for the sake of brevity. We first look to the chronology of events which transpired in the present case, the same is extracted below: CHRONOLOGICAL SEQUENCE OF EVENTS Sr. No. Date Particulars (Page of Paper Book) 1 16.10.2016 Return of income filed declaring an income of Rs. 3,58,34,630/- for financial year 2015-16 relevant to assessment year 2016-17 (pages 1-15 of Paper Book) 2 07.07.2017 Notice issued u/s 143(2) of the Act. (16-19) 3 14.08.2018 Notice issued u/s 142(1) of the Act along with Questionnaire. (20-23) 4 14.09.2018 Reply filed in response to notice dated 14.08.2018. (24-25) 5 05.10.2018 Show Cause Notice issued u/s 142(1) of the Act. (26-29) 6 18.10.2018 Reply filed in response to notice dated 14.08.2018. (30-59) 7 06.11.2018 Reminder - Show Cause Notice issued u/s 142(1) of the Act on 05.10.2018 (61) 8 Reply filed before Assessing Officer. (64-72) 9 Reply before before Assessing Officer submitting entire details of long term capital gain earned in respect of shares of capital trade links. (73-263 10 Reply fi....
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....made detailed submission for each of the observations and conclusion drawn by the ld. AO. We find it more meaningful and comprehensible to present the same in a tabulated form for better understanding to arrive at our finding. The chart presented by the ld. Counsel effectively summarises multiple contentions raised in support of the claim made by the assessee. The same is reproduced as under for ease of reference: Sr. No. Particulars Para of Assessment Order (Page) Remarks i) Stake holders involved were either Bogusor devoid of financial capabilities 2.4 (2) General Observation ii) Capital Trade link is engaged in the Scam as revealed by the Investigation Wing and SEBI 3 (3) No report of Investigation wing or SEBI on record, much less no such information provided to appellant. (Para 17-17.2) Name of scrip appearing in the list of penny stock of income tax department cannot be abasis to make addition. (Para 16-16.3) iii) Fundamentals of CTL do not support the premium it commanded 3.1. (3) Incremental Revenue from operation running in several Crores and incremental profit before taxes since 2013 onwards. (Para 10-10.5) iv) Modu....
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....sale of CTL were sham - transaction of purchase of shares of CTL was off market transaction; SEBI had vide circular No. SMDRP/Policy/CIT-21/99 dated 14.09.1999 banned all negotiated deals, cross deals and all such deals are required to be executed only on the screens of Exchanges in the price and order matching mechanism of the exchange just like any other normal trade. 6.1 (10-11) That the allegation that offline purchase of shares of Capital Trade Link Ltd. was to book bogus LTCG is misconceived and without any basis much less off-market transaction are not illegal transaction. (para 4-4.2 hereinbelow) That neither the trading in shares of Capital Trade Link Ltd. is suspended as on date or at any time prior. The share of Capital Trade Link is never delisted by the SEBI (Para 9-9.1) xi) Various case laws referred 6.3 (11-18) That the theory of preponderance, human probabilities, circumstantial evidence so called rules of suspicious transactions are not applicable in respect of transactions of listed security where the transactions are supported by due evidence on record. (Para 15-15.1) 8.2. We find force in the multi-fold contentions raised by the ld. Co....
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....5, which are not the highest prices. ix) Assessing Officer arrived at adverse conclusion without making any independent inquiries either from SEBI or stock exchange or broker or share company to ascertain genuineness of the impugned transaction. x) Name of scrip appearing in the list of penny stock of income tax department cannot be a basis to make addition. xi) No addition can be made on the basis of adverse material, when neither such purported material was shown nor referred and confronted or supplied to the assessee in the course of assessment proceedings. xii) No opportunity was afforded to assessee to cross examine the purported statements relied upon by Assessing Officer in the order of assessment violating the principles of natural justice. 8.3. On a specific query by the Bench in respect of details of DMAT account in which the purchase of shares of CTL were credited, ld. Counsel furnished the DMAT statement with DP ID 12069800 and Client ID 00001312, issued by Rajgul Securities Put. Ltd., DP of Central Depository Services (I) Ltd. From the perusal of the said statement, it is noted that purchase of 5,00,000 shares of CTL were credited on 19....
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....05,713/- in shape of sale of shares of Capital Trade Links should not be added in your total income for the year under consideration." Further, while drawing conclusion in para 7 for making the assessment, ld. AO again writes in similar manner as - "In view of the elaborate discussion made above, I hereby hold the amount of Rs. 3,03,05,713/- introduced/credited by the assessee in the shape of Long Term Capital Gain out of these purported share sale receipts during the financial year 2015-16 (A.Y. 2016-17) in his computation of total income (taxable at the rate of 60% as provided u/s 115BBE). This would resultant of addition of Rs. 3,03,05,713/- in the total income of the assessee." Lastly, in para 8 while arriving at the total assessed income, ld. AO made the addition of Rs. 3,03,05,713/- for which he noted as - "Bogus LTCG claimed u/s 10(38) held to be Income from Other Sources, as discussed above." 8.6.1. From the above extraction of the impugned assessment order, it is not at all discernible whether the addition is made by applying provisions of section 68 or a disallowance is made of the claim of exemption of LTCG u/s 10(38) of the Act by the ld. AO. 8.6.2. Ta....
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....4 and second, such transaction is chargeable to securities transaction tax (STT). In the present case, assessee has established compliance of both the conditions which is not in dispute even by the ld. AO. Also, in the show cause notice, while proposing for the addition as well as in the impugned assessment order, while making the addition, ld. AO has made no such reference to section 10(38) about its non-fulfilment. Thus, even this inference fails. 8.6.5. We note that while computing the total assessed income, ld. AO held the LTCG as 'income from other sources'. It is important to take note of computation of LTCG mentioned in his show cause notice wherein full consideration stated is Rs.3,06,99,056/- from which cost of acquisition of Rs.3,93,343/- is deducted to arrive at LTCG of Rs. 3,03,05,713/- which is in terms of section 45 and 48 of the Act. Assessee received Rs.3,06,99,056/- during the year under consideration which is the subject matter for seeking explanation by ld. AO from the assessee. However, ld. AO made the assessment by making an addition of Rs.3,03,05,713/-, giving deduction for cost of purchase of shares. Such an addition of amount computed under ....
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....of Hon'ble Delhi High Court in ITA No. 125/2020, ITA. 130 & 131/2020, wherein the Hon'ble Delhi High Court specifically held that 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". 13. In my view, since assessee had already discharged his part of initial onus by establishing identity, creditworthiness and genuineness of the transaction, therefore it was now revenues onus to disprove the claim of the assessee by proving on record the evidences to the contrary. Ordinary rule is that "appellant state of affair is real unless contrary is proved" and therefore burden of proving lies on the person who asserts it. Since in the present case, the genuineness of the transaction has been clearly proved beyond doubt therefore additions are not warranted, for this proposition reliance is placed upon the decision of PCIT v. Parasben Kasturchand Kochar [130 taxmann.com 176 of 2020]: - 1. This appeal under Section 260A of the Income Tax Act, 1961 (for short 'the Act 1961") is at the instance of the Revenue and is directed against the order passed by the Income Tax Appel....
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.... also furnished the details of such bank transactions with regard to the purchase of the shares. In the last, the Tribunal took notice of the fact that the statements recorded by the investigation wing of the Revenue with regard to the Tax entry provided were informed to the assessee despite giving him opportunity to meet such an allegation. In the overall view of the matter, we believe that the proposed question cannot be termed as a substantial question of law for the purpose of maintaining the appeal under Section 260-A of the Act, 1961. 5. In the result, this appeal fails and is hereby dismissed. Reliance is also placed on the decision of Supreme Court of India in the case of PCIT v. Parasben Kasturchand Kochar [130 taxmann.com 177 of 2021]: - Section 10(38) of the Income-tax Act, 1961 - Capital gains - Income arising from transfer of long-term securities (Shares) - Assessment year 2014-15 - Assessee individual engaged in business of trading in shares claimed long term capital gains arising out of sale of shares as exemption under section 10(38) - Assessing officer denied claim and made certain additions into assessee's income on grounds that said gains....