DEEPAK NAGORI ,HYDERABAD vs. INCOME TAX OFFICER, WARD-8(3), HYDERABAD

आयकर अपीलीय अधिकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ B ‘ Bench, Hyderabad Before Shri R.K. Panda, Vice-President AND Shri Laliet Kumar, Judicial Member Assessment Year:2012-13 Shri Deepak Nagori Vs. Income Tax Officer Hyderabad Ward 8(3) Hyderabad (Appellant) (Respondent) PAN:ABSPN3300M Assessee by: None Revenue by: Shri K. Madhusudan, CIT(DR) Date of hearing: 07/12/2023 Date of pronouncement: 12/12/2023 ORDER Per Laliet Kumar, J.M This appeal filed by the assessee is directed against the order dated 28.05.2018 of the learned CIT (A)-2, Hyderabad relating to A.Y.2012-13.

by the assessee reads as under:

1. That the Appellant is an Individual and filed his Income Tax Return (TR) for FY 2011-12 by declaring income of Rs.5,82,686/-. The ITR includes long term capital gains of Rs.23,08,721/- and claimed exemption under section 10(38) of IT Act 1961. Notices issued under section 148 and notice under section 142(1) of the Income Tax Act, 1961. The Ld. AO passed the assessment order under section 143(3) r.w.s. 147 of the I.T Act, 1961 and the same was upheld by Ld. CIT(A).

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2. That the assessment made by the Ld. AO and upheld by Ld. CIT(A) is bad in the eyes of law based on the facts and circumstances of the case as the income is assessed without taking into consideration the documents, information and explanation submitted/offered by the Appellant. Further, the entire addition of Rs. 23,08,721/- made by the L. AO is on the grounds of presumption and presuppositions only rather than considering the bonafide purchase and sale of shares transaction and treating it as unexplained investment under section 69 of IT Act, 1961. In other words, the case was not assessed on its own and independent merits.

3. That the Appellant held very insignificant share of the amalgamated company (24000 shares which accounts for 0.25% of the shareholding of 9714280 total shares). Hence, it was impossible for Appellant to play any role in the manipulation, if any, of the share price i the amalgamated company. Inspite of this fact, the Ld. AO considered this transaction as one of legalizing unaccounted money without bringing any material or evidence in support of the claim on one hand and not considering the documents, information and explanation submitted/offered by the Appellant on the other hand. Especially, when the Appellant earned all incomes only through normal banking channels and offered to tax. 4. The Ld. CIT(A) has erred in law as well as on facts and circumstances of the case in confirming the addition of Rs. 23,08,721- made by the Ld. AO by treating the long-term capital gain on sale of shares as sham transaction and further denying benefit of exemption of long term capital gains allowable under section 10(38) of the IT Act, 1961. The Appellant craves leave to amend, modify and/or alter grounds and/or to adduce and rely upon such further evidence and lor to adduce and rely upon such further evidence and lor documents may be required at any time before and during the time of hearing.”

ITA 1713 of 2018 3.1. During the course of assessment, the Assessing Officer found that the assessee was in receipt of capital gains on account of sale of share of M/s. Konark Commerce and Industries Limited which was claimed as exemption, details of which are as under:

Sale value of 24000 shares - Rs. 23,32,721 Less: Purchase value - Rs. 24,000 Exemption u/s 10(38) - Rs. 23,08,721 3.2. The Assessing Officer analysed the history and background of the stock M/s Konark Commerce and Industries Ltd. He observed that another company viz. M/s Leading Tradecom P Ltd was merged with M/s Konark Commerce and Industries Ltd. It was noticed that the assessee initially purchased shares of M/s. Leading Tradecom P Ltd and subsequently allotted shares of M/s Konark Commerce and Industries Ltd on account of merger. It is to be observed that the allotted shares were further split into the ratio of 1:20. The shares purchased at Rs. 10 were subsequently sold at a significantly high price and the capital gains Rs.23,08,721/- arisen on account of such sale was claimed as exemption under section 10(38) of the Act.

3.3. The Assessing Officer, however, observed that the events of purchase / sale, generation of capital gains and the claim u/s 10(38) of the Act thereof, are not as simple or lucid as stated to have been happened. There is some important circumstantial as well as direct evidences to show that the Long Term Capital Gain shown by assessee is not natural but is arranged one. Page 3 of 16

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ITA 1713 of 2018 statuary period after which LTCG is exempt u/s 10(38) of the Income tax Act, 1961. In the meantime, the operators rig the price of the stock and gradually raise its price many times, often 500 to 1000 times. This is done through low volume transactions indulged in by the dummy operators at a pre-determined price. When the price reaches the desired level, the beneficiary, who bought the shares at a nominal price, is made to sell it to the dummy paper company of the operator. For this, unaccounted cash is provided by the beneficiary which routed through a few layers of paper companies by the operator and finally is parked with the dummy paper company that will buy the shares.

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i. Individuals throughout the country identified who have taken such bogus entries of LTCG amounting to several crores from 2010 to 2014. ii. The result of the enquiry was also shared with SEBI and the SEBI after investigating 11 cases have found the allegation to be correct. The remaining cases are still being investigated by SEBI. iii. TOP 25 groups under each investigation directorate of the country were confronted in course of further investigation, almost all of them barring, a few have accepted having taken the entries for a commission, a Page 6 of 16

ITA 1713 of 2018 sum of crores has been voluntarily surrendered by such assessees. iv. In Kolkata, where this investigation was started some of the beneficiaries who had taken entries of nearly Rs.40 crores have voluntarily surrendered it for taxation without any further enquiry. v. Several assessees have filed revised return due the enquiry and have taken back their claim of exemption.

ITA 1713 of 2018 came to a conclusion that the transactions were sham and aimed only to legalize unaccounted money under the guise of exempted Long Term Capital Gains by giving a colour of authenticity through artificial/arranged transactions. Therefore, the Assessing Officer denied the claim of exemption of Capital Gain and the benefit gained by the assessee from the transaction of Rs.23,08,721/- was treated as unexplained investment u/s 69 of the Act r.w.s. 115BBE of the I.T. Act. Since this a clear case of concealment of income, penalty proceedings u/s 271(1)(c) was also initiated separately.

11. Aggrieved with such order of the learned CIT (A), the assessee is in appeal before the Tribunal.

12. None appeared on behalf of the assessee at the time of hearing, despite service of notice through RPAD. It was seen from the record that no one is appearing on behalf of the assessee since last so many times. Under these facts, we are constrained to decide the appeal exparte on the basis of material available on record and after hearing the ld. DR.

13. The learned DR, on the other hand, supported the orders of the lower authorities and also filed detailed written submissions and case laws in favour of the Revenue.

ITA 1713 of 2018 Tribunal under identical facts and circumstances in the case of Govind Kumar Agarwal & Others in and others vide order dated 21.11.2023 in Paras 17 to 23, under similar set of facts, dismissed the appeals filed by the assessees therein by holding as under:

“17. We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned CIT (A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us by both sides. We find the AO in the instant case at page No.8 and 9 of its order have reproduced the financial statements of Kailash Auto Finance Ltd for the financial year 2010-11 to 2013-14 in in the case of the assessee for the A.Y 2014-15 and had mentioned as under:

shares and had also provided the details of the STT paid by the assessee while selling the shares. However, we cannot be oblivious to the fact that there is a huge difference in sale and purchase of the shares within a short span of time. In the present case, the assessee had purchased 25000 shares of M/s. Careful Project Advisory Ltd on 28.12.2011 for a meagre consideration of Rs.25000/- and subsequently the said M/s. Careful Project Advisory Ltd got merged into Kailash Auto Finance Ltd which happens to be the penny stock company and as a result thereof, the assessee got 50,000 shares and the same were credited into the Demat account maintained by M/s. HSE Securities Ltd. After the said 50000 shares of M/s. Kailash Auto Finance Ltd, the assessee sold 25000 shares through HSE Securities Ltd in the A.Y 2015-16 for a consideration of Rs.8,66,446/- and has claimed LTCG for Rs.8,41,556/-. Thus, within a short span of time with an investment of meagre Rs.25,000/- the assessee gained Rs.8,41,446/-.The amount of Rs.8,41,446/- is dis- proportionate, exorbitant and beyond human probabilities. No business on earth would yield a return of Rs.8,41,446/- within a short span of less than 3 years with an investment of Rs.25,000. Though the assessee was able to maintain perfect paper trail, however, the astronomical profit and windfall is not expected for the small amount from a company which has no financial establishment, commercial establishment and industrial establishment and was merely a paper company. In fact, the net worth of the company as captured by the Assessing Officer reproduced herein above was negative and no commercial/industrial activities were undertaken by the said company for the financial year 2010-11 to 2013-14. In our view, if a company has a strong financial fundamental, then it must be carrying on some activity which must result into earning profits and payment of dividend to the shareholders. The company must be having some tangible and intangible asset, workforce, paying electricity charges, excise duty, employee cost etc. In fact the operating income and the employee expenses for the financial year 2013-14, 2012-13, 2011-12 and 2010-11 of Kailash Auto Finance Ltd are as under: Year F.Y 2013-14 F.Y 2012-13 FY 2011-12 F.Y 2010-11 (Rs. in crore) (Rs. in crore) (Rs. in crore) (Rs. in crore) Operating 20.41 0.34 0.13 0.35 Income Operating & Adm. 18.88 0.3 0.1 0.12 Expenses Employee 0.05 0.02 0.05 0.1 Expense

establishments. In the present case the expenses of Kailash Auto Finance Ltd towards these heads are conspicuously missing. In our view it is highly improbable and against the human probability for a business person/investor like the assessee before us to invest in such a paper company which is not doing any tangible activity but for the obvious reason of converting the cash into LTCG In absence of any such expenditure, it is not expected for a company to flourish and grow. In our view, if the company does not have strong financial fundamental, it is not expected of any individual investor (like the assessee before us) to invest in the company which is lacking strong financial fundamentals. In fact, the above said exercise of investing in a paper company seems to be undertaken by the assessee just to convert the ill-gotten money with the help of perfect paper trail. To demonstrate how the assessee and other persons are working in tandem with the operators, we would like to reproduce one of the submissions in the case of Abhishek Agarwal, wherein the assessee in response to the notice given by the Assessing Officer had submitted as under:

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ITA 1713 of 2018 financial fundamental strength and therefore, no prudent person would invest in such a company which does not have any strong fundamentals. This is against the human probabilities and conduct. Further, we are of the opinion that the Assessing Officer cannot be expected to do impossible act of bringing on record the evidence that the assessee has given the cash in lieu of claiming the LTCG. In our view and as per the fact, the manipulation of scrips/rigging of the share price have been done with the help of complex web of transaction/circular transaction which were undertaken by operators in connivence and collusion with various unscrupulous persons placed in various jurisdiction namely Kolkata, Mumbai, Delhi, Hyderabad etc., Further, in the present case, the SEBI which is a regulatory and adjudicating authority has examined the trading in the scripts of Kailash Auto Finance Ltd after issuing the notices to various beneficiaries of price hike, brokers/operators and the company and thereafter had held that the increase in price of Kailash Auto Finance Ltd were artificially increased with the connivence of operators and other stakeholders just to gain LTCG/Long Term Capital loss. We cannot brush aside the report of SEBI which has evidentiary value and binding in nature. In the present case, the Assessing Officer has relied and referred to the report. Further, we can apply the salutary principles of resjudicata as mentioned in Section 11 of the Civil Procedure Code and also section 33 r.w.s. 56 of the Evidence Act. In view of the above, we do not find any merit in the appeal of the assessee and accordingly the appeal of the assessee is liable to be dismissed. 21.1 Though both the parties relied upon various decisions, however, the decision of the Coordinate Bench of the Delhi Tribunal in the case of M/s. Anandtex International (P) Ltd vs. ACIT in dated 24.02.2022 is squarely applicable to the facts of the present case wherein the Coordinate Bench at paras 10 to 16 have decided similar issue as under: “10. We have gone through the record in the light of the submissions made by the Ld. DR. In PCIT vs. NRA Iron and Steel (P) Ltd (supra) and NR Portfolio Private Limited (supra) it is held that it is legitimate for the learned Assessing Officer to look into the issues like - whether the two parties are related or known to each other, or mode by which parties approached each other? whether the transaction is entered into through written documentation to protect investment? whether the investor was an angel investor? what is the quantum of money invested? how the party believed the credit-worthiness of the recipient? what is the object and purpose of payment/investment? whether the share applicant is in existence and an independent entity? how the financial capacity of the share applicant to invest funds is proved? how the source of funds from which the high share premium was invested is dealt with by the assessee? why the investor companies had applied for shares of the Assessee Company at a high premium? in case the field enquiry conducted by the AO revealed that the investor companies were found to be non-existent, and the onus to establish the identity of the investor companies, was not Page 13 of 16

ITA 1713 of 2018 discharged by the assessee? whether the assessee discharged their legal obligation to prove the receipt of share capital/premium to the satisfaction of the AO? whether the assessee discharged the onus to establish the credit worthiness of the investor companies? did the assessee do anything more than mere mention of the income tax file number of an investor to discharge the onus under Section 68 of the Act? did the assessee do anything more than mere filing all the primary evidence in discharge of their onus to prove the identity of the investee? etc.

14. Coming to the addition of Rs. 6 Lacs covered by grounds No. 4 and 5, it was made by the learned Assessing Officer by making certain portion of the labour charges, loading and unloading expenses and missionary repair and maintenance charges, according to the learned Assessing Officer such payments were made in cash and bills were not properly vouched and therefore such expenses remained unverifiable. Precisely for this reason, Ld. CIT(A) also confirmed the same. No reasons are forthcoming before us to take a different view. We, therefore, do not find any reason to interfere with the findings of the Ld. CIT(A) and therefore dismiss grounds No. 4 and 5.

15. The next addition challenged under grounds No. 6 and 7, is in respect of Rs. 1 19, 29, 050/-towards the disallowance of 1/8thportion of the expenditure met further car expenses, conveyance, Festival expenses, telephone expense, travelling expense and sales promotion expenses. On this aspect learned Assessing Officer recorded that the log books of car and complete details of telephone calls were not produced by the assessee and according to the assessee is not feasible to produce the same because the vehicles are almost under the direct control of the management. Ld.

ITA 1713 of 2018 CIT(A) recorded that the explanation offered by the assessee was only superficial and log books are maintained mandated really in any concern of whatever the size. On this aspect also, no submissions are forthcoming from the side of the assessee to take a different view. We therefore, do not propose to interfere with the findings of Ld. CIT(A) in the impugned order.

16. Lastly addition of Rs. 7, 94, 315/-covered by grounds No. 8 and 9, it represents the disallowance of a part of the expense under the head repair and maintenance on the ground that the bills in respect of the amounts paid in cash were not properly vouched. Ld. CIT(A) recorded that the assessee sought to take shelter under the fact that certain vendors do not maintain printed bills and expenses are internally vouched. According to the Ld. CIT(A) in the absence of any non-availability of the expense disallowance of a portion of the same is justifiable. In the absence of any material or reason before us to take a contrary view. We decline to interfere with the same. Grounds No. 7 and 8 are accordingly dismissed.”

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Order pronounced in the Open Court on 12th December, 2023.