TaxTMI 
TaxTMI 
2023 (7) TMI 1666
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....ares of Mishka Finance and Trading Limited. The assessee had claimed the same as exempt under section 10(38) of the Act. The Assessing Officer noticed that the investigation wing of the Kolkata Directorate has identified certain stocks as Penny stocks, wherein long term capital gains/capital loss have been generated by manipulating the price of those shares. The Assessing Officer noticed that the Mishka Finance and Trading Limited has been identified as one of the penny stocks. On the basis of the report of the investigation wing, the Assessing Officer came to the conclusion that the capital gain declared by the assessee is not genuine. Accordingly, he proposed to assess the sale consideration of Rs. 20,06,535/- as income of the assessee under section 68 of the Act. In response to the notice of the Assessing Officer, the assessee submitted that he has purchased shares through a registered broker, dematerialized the same and sold it through the recognized stock exchange. It was further submitted that the transactions of purchase and sale were carried out through banking channel. Accordingly, the assessee contended that the capital gain declared by him cannot be considered as bogus i....
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....iven by the investigation wing and did not conduct any independent inquiry about the transactions carried out by the assessee. Accordingly, the Ld A.R contended that the AO has not disproved the transactions carried on by the assessee and hence he could not have made the addition u/s 68 of the Act. He submitted that the learned CIT(A) was also not justified in confirming the addition. 6. The Learned DR, on the contrary, supported the orders passed by the tax authorities. He submitted that the financial position of the Company Mishka Finance and Trading Limited does not justify the high shares price quoted in the stock exchange. Accordingly, he submitted that the tax authorities are justified in assessing the sale value of shares as unexplained cash credit. 7. We heard rival contentions and perused the record. There is no dispute with regard to the facts that the assessee has purchased the shares through a broker by paying the consideration in cheque. The said shares after receipt of bonus shares and split were sold through a broker in a recognized stock exchange. The said shares have been held for more than one year. We further notice that the assessee has furnished all the d....
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....her with these brokers and the persons floating the two companies. It is only, after the Assessee who is supposed to dealing in shares and producing all the details including the DMAT account, the Exchange at Calcutta confirming the transaction, that the Appeal of the Assessee has been rightly allowed. The Tribunal has not merely interfered with the concurrent orders because another view was possible. It interfered because it was required to interfere with them as the Commissioner and the Assessing Officer failed to note some relevant and germane material. In these circumstances, he submits that the Appeals do not raise any substantial question of law and deserve to be dismissed. 5. We have perused the concurrent findings and on which heavy reliance is placed by Mr. Suresh kumar. While it is true that the Commissioner extensively referred to the correspondence and the contents of the report of the Investigation carried out in paras 20, 20.1, 20.2 and 21 of his order, what was important and vital for the purpose of the present case was whether the transactions in shares were genuine or sham and bogus. If the purchase and sale of shares are reflected in the Assessee's DM....
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....ons. The contract note is a system generated and prescribed by the Stock Exchange. From this material, in para 11 the Tribunal concluded that this was not mere accommodation of cash and enabling it to be converted into accounted or regular payment. The discrepancy pointed out by the Calcutta Stock Exchange regarding client Code has been referred to. But the Tribunal concluded that itself, is not enough to prove that the transactions in the impugned shares were bogus/sham. The details received from Stock Exchange have been relied upon and for the purposes of faulting the Revenue in failing to discharge the basic onus. If the Tribunal proceeds on this line and concluded that inquiry was not carried forward and with a view to discharge the initial or basic onus, then such conclusion of the Tribunal cannot be termed as perverse. The conclusions as recorded in para 12 of the Tribunal's order are not vitiated by any error of law apparent on the face of the record either. 7. As a result of the above discussion, we do not find any substance in the contention of Mr. Suresh kumar that the Tribunal misdirected itself and in law. We hold that the Appeals do not raise any substanti....