INCOME TAX OFFICER, MUMBAI vs. HARESH KUMAR MANJIBHAI PATEL, GUJARAT

The brief factual matrix, essential to the adjudication of the present controversy, is that the assessee is an individual who had duly filed his return of income for the assessment year 2018–19 on 03/10/2018, declaring therein a total income of ₹18,77,700/– In the computation accompanying the said return, the assessee disclosed that he had derived long-term capital gains from the sale of equity shares of M/s. Sunstar Realty Development Ltd. (―SRDL‖). Such gains, amounting to ₹2,81,50,290/–, were claimed as exempt under section 10(38) of the Act, then prevailing, on the premise that the transactions were routed through a recognised stock exchange and were subject to payment of Securities Transaction Tax (STT). The working of the said claim, as set out by the assessee in his return of income, was as under:

The chronology of the assessee’s investment and subsequent dealings in the scrip of M/s. Sunstar Realty Development Ltd. (SRDL) is undisputed. The assessee had acquired 1,00,000 equity shares of SRDL on 12/11/2013 at a consideration of ₹50 per share, by way of preferential allotment. The acquisition cost of ₹50,00,000/– was duly discharged through proper banking channels, and delivery of the shares stood credited into the assessee’s demat account. Out of this holding, 26,100 shares were sold in May 2015. Thereafter, the company effected a stock split on 04/06/2015 in the ratio of 1:10, whereby the balance holding of 73,900 shares expanded to 7,39,000 shares. The assessee disposed of 54,000 shares in June 2015, and the remaining 6,85,000 shares—having an indexed cost of acquisition of ₹34,25,000/– were sold during the relevant year for an aggregate sale consideration of ₹3,16,08,941/–. All such sales were routed through the recognised stock exchange, subjected to Securities Transaction Tax (STT), and payments were received exclusively through account payee cheques from the registered broker, Anand Rathi Share and Stock Brokers Ltd. Thus, part of the assessee’s holding stood liquidated in F.Y.

Subsequently, the Directorate of Investigation, DDIT (Inv.) Unit–2, Mumbai, carried out enquiries in relation to SRDL and categorised it as a so-called ―penny stock.‖ The Investigation Wing reported that the promoter of the company, Shri Dipan Patel, in his statement recorded under section 131 on 27/01/2021, admitted that the scrip had been misused to provide accommodation entries of long-term capital gain to various beneficiaries. Reference was also made to certain other statements, purportedly corroborating that SRDL was being used as a conduit for such entries. Based on this information, and upon noting that the assessee had sold SRDL shares worth ₹3,16,08,941/–, the Assessing Officer reopened the assessment by issuing notice under section 148 on 11/03/2022.

According to the Assessing Officer, no effective reply was filed by the assessee in response to the said notice. The learned Counsel for the assessee, however, has contended that the allegation of ―non-response‖ is misconceived inasmuch as the material and statements relied upon by the Assessing Officer were never furnished along with the show- cause notice. It was urged that such non-supply of foundational material strikes at the very root of the proceedings and renders them unsustainable in law, being contrary to the mandate of the Act as well as the binding ratio of the Hon’ble Supreme Court in Union of India v. Ashish CO No.147/Mum/2025 Hareshkumar Manjibhai Patel Agrawal (138 taxmann.com 64) and again reiterated in Union of India v. Rajeev Bansal (2024) 469 ITR 46 (SC).

Be that as it may, during the course of reassessment proceedings, the Assessing Officer issued a further show- cause notice dated 15/03/2023 reiterating the same points and enclosing the statement of Shri Dipan Patel. The assessee requested cross-examination of the said individual; however, despite issuance of summons for virtual appearance, Shri Dipan Patel did not present himself. In response to the show- cause notice, the assessee, nevertheless, furnished a comprehensive set of documentary evidences in support of the genuineness of the impugned transactions, inter alia comprising: i. Copy of bank statements evidencing payment for acquisition of equity shares through banking channels. ii. Ledger account evidencing purchase of shares. iii. Corporate announcement relating to the stock split in the ratio of 1:10. iv. Demat statement reflecting receipt and subsequent delivery of shares. v. Contract notes for sales issued by the registered broker, Anand Rathi Share and Stock Brokers Ltd. vi. Certificate evidencing payment of Securities Transaction Tax (STT) on sale of the shares. vii. Bank statements evidencing receipt of sale consideration from the broker through account payee cheques. viii. Ledger account of the assessee as appearing in the books of the broker. ix. Ledger account of the broker as appearing in the books of the assessee. x. Global report of the registered share broker.

The Assessing Officer, however, rested his conclusions predominantly on the generic ―modus operandi‖ said to have been unearthed by the Directorate of Investigation in relation to certain penny stock companies, of which SRDL was alleged to be one. In his order, the AO traced the corporate history of SRDL from incorporation, recited the analysis of its share price movement as highlighted in the Investigation Report, and extracted portions of the statement of Shri Dipan Patel, who was earlier associated with the company. Thereafter, invoking decisions such as McDowell & Company Ltd. v. Commercial Tax Officer (154 ITR 148, SC) and other judicial precedents on colourable devices and sham transactions, the AO concluded that the long-term capital gains claimed by the assessee were, in substance, nothing but accommodation entries designed to introduce unaccounted money in the guise of exempt capital gains. In this manner, despite acknowledging the assessee’s evidences in passing, he brushed them aside and treated the entire sale consideration of ₹3,16,94,285/– as unexplained cash credit under section 68. Additionally, on a notional basis, he estimated an alleged commission expenditure of ₹85,344/– said to have been paid by the assessee for arranging such entries, and added the same under section 69C of the Act.

In sum and substance, the Assessing Officer crystallised his reasoning into a set of broad assertions, which may be encapsulated as follows:

Before us, the learned Counsel for the assessee submitted, with considerable emphasis, that the assessee had placed on record before the Assessing Officer an entire compendium of primary documents banking records, demat statements, contract notes, and even the certificate evidencing payment of STT which collectively established the genuineness of the impugned transactions. Significantly, none of these documents were controverted or found to be fabricated by the Assessing Officer; rather, his order proceeded solely on the borrowed conclusions of the Directorate of Investigation, without any independent enquiry into the assessee’s case. 11.1. The learned Counsel further pointed out that during the reassessment proceedings, vide letter dated 18/03/2023 filed in response to the show cause notice dated 15/03/2023, the assessee had categorically explained the movement of the scrip’s price. It was submitted that the price of SRDL had peaked around ₹60 per share during the period October 2016 to March 2017, whereas the assessee actually sold his CO No.147/Mum/2025 Hareshkumar Manjibhai Patel holding during June to August 2017, when the price had already softened to the range of ₹45–48 per share. Thus, the transaction was not a case of windfall profiteering, but an exit at a lower valuation than the peak, which belies the allegation of manipulative intent. 11.2. It was also explained that SRDL was not a mere shell company devoid of business; on the contrary, the annual accounts for A.Ys. 2013–14 to 2018–19, duly placed before the AO, disclosed genuine turnover and profitability. The ROC master data confirmed compliance with all corporate formalities. In fact, the balance sheets of the company as on 31/03/2013 and 31/03/2014 reflected a healthy net worth of ₹25.17 crores and ₹44.02 crores respectively, supported by only modest borrowings. These figures, the learned Counsel submitted, demonstrate that the company’s credentials at the time of acquisition were not that of a fly-by-night entity. 11.3. It was argued that the Assessing Officer erred in treating the financials as a conclusive yardstick to stigmatise the assessee’s investment. A mere rise in the scrip’s price, without substantive evidence of collusion or cash movement, cannot substitute for proof. The scrip of SRDL did not display the characteristic ―bell curve‖ price pattern generally associated with manipulated penny stocks. In any event, the Assessing Officer’s observations may at best justify an enquiry, but they cannot be elevated to the status of evidence. Since the purchase of shares in 2013 was accepted and reflected in the assessee’s balance sheet since A.Y. 2014–15, the corresponding sale, effected through a recognised stock CO No.147/Mum/2025 Hareshkumar Manjibhai Patel exchange with all attendant safeguards, cannot be discredited in the absence of contrary evidence.

The learned Counsel further elaborated that the assessee’s investment in SRDL was made way back in F.Y. 2013–14, through a preferential allotment at ₹50 per share, whereas the IPO price was merely ₹20 per share. This clearly demonstrated that the assessee had not cornered the shares at a throwaway price, but had in fact subscribed at a premium, signalling genuine intent. The holding was retained for almost four years, during which the price appreciated approximately ninefold a rise not extraordinary when viewed against the holding period and market volatility. 12.1. As regards the incriminating statement of Shri Dipan Patel, it was submitted that the assessee’s name finds no mention therein. On the date of the assessee’s sales between 07/06/2017 and 24/08/2017, Shri Dipan Patel was not even a director of the company. Further, there was no material such as seized documents, cash trails, or corroborative evidence connecting the assessee to any alleged accommodation entry. Even the tabulated details reproduced by the AO from Question No.15 of Shri Dipan Patel’s statement, listing supposed beneficiaries of bogus LTCG, did not contain the assessee’s name. Likewise, the list of nine alleged beneficiaries referred to in Question No.39 of the same statement also omitted the assessee altogether. 12.2. The learned Counsel emphasised that the assessee had no personal or business connection with Shri Dipan Patel, CO No.147/Mum/2025 Hareshkumar Manjibhai Patel and had never dealt with him. Other statements of third parties such as Shri Gaurav Agarwal and Shri Manoj Agarwal mentioned cursorily in the section 148A(b) notice were not even furnished to the assessee, thereby violating principles of natural justice. 12.3. It was also highlighted that in an earlier year, A.Y. 2016–17, the assessee had sold a portion of his SRDL shares. The resulting LTCG was duly accepted by the Revenue in processing under section 143(1), thereby evidencing a consistent pattern of genuine transactions. Once the purchase of shares in 2013 stood accepted as genuine, it was wholly incongruous, counsel urged, for the Department to now cast suspicion upon their sale several years later, without any cogent evidence.

During the course of hearing, the learned Authorised Representative drew our pointed attention to an order of SEBI dated 31/10/2022, which, significantly, had not been adverted to in the assessment order. He submitted that the said adjudication order covered the investigation period from 04/06/2015 to 31/03/2016, whereas the assessee’s impugned transactions of sale of SRDL shares had taken place much later, during the period June 2017 to August 2017. Thus, the assessee’s trades lay wholly outside the compass of the investigation period. 13.1. More importantly, SEBI had recorded a categorical finding that there was no price rigging during the relevant investigation period and that the enquiry did not reveal any CO No.147/Mum/2025 Hareshkumar Manjibhai Patel disproportionate gain or unfair advantage to the noticees, nor any corresponding loss to investors as a result of alleged manipulation of SRDL’s share prices. The learned Counsel underscored that in the said SEBI order, neither the assessee’s name nor that of his broker M/s. Anand Rathi Share & Stock Brokers, through whom the sales were executed finds any mention. This, he contended, clearly demonstrated that the assessee’s transactions were not even within the investigative crosshairs of SEBI, let alone condemned as fictitious or collusive. 13.2. The learned Counsel further highlighted paragraph 52 of the SEBI order, wherein at page 4, a tabular analysis of trading periods was set out namely, the pre-investigation period (02/03/2015 to 03/06/2015), the investigation period (04/06/2015 to 31/03/2016), and the post-investigation period (01/04/2016 to 30/06/2016). It was argued that the assessee had purchased his shares on 12/11/2013, well before the investigation window, and had sold them only during June to August 2017 far beyond even the post- investigation period considered by SEBI. Since neither the assessee nor his broker was ever proceeded against by SEBI, the learned Counsel contended that it would be legally untenable for the Department to treat the assessee’s bona fide transactions as sham. In support, he also placed reliance upon several decisions of co-ordinate Benches of the Tribunal which had, in the context of the very same scrip of SRDL, held that transactions executed through stock exchange CO No.147/Mum/2025 Hareshkumar Manjibhai Patel mechanisms with proper evidentiary support could not be treated as accommodation entries.

The learned Departmental Representative, on the other hand, strongly relied upon the findings of the Assessing Officer. He submitted that the AO had drawn sustenance from judicial pronouncements which emphasised that colourable devices or make-believe transactions, though clothed in formal documentation, cannot be allowed to defeat the provisions of tax law. According to the DR, the suspicious nature of SRDL as a penny stock, coupled with the statement of its erstwhile promoter, justified the conclusion of the AO, and therefore, the appellate relief granted by the CIT(A) ought to be reversed.

We have carefully considered the rival submissions, perused the voluminous material placed on record, and examined in detail the findings and observations rendered by both the Assessing Officer and the learned CIT(A). The factual substratum is fairly clear. The assessee had acquired one lakh equity shares of M/s. Sunstar Realty Development Ltd. on 12/11/2013 by way of preferential allotment, at a price of ₹50 per share. The acquisition cost, aggregating to ₹50,00,000/–, was paid entirely through recognised banking channels. Notably, the company’s initial public offer (IPO) had been issued at ₹20 per share, whereas the assessee had subscribed at a substantially higher price of ₹50, thereby signifying that this was not a case of obtaining shares at an artificially depressed value. The delivery of the shares stood duly credited to the assessee’s demat account.

It was also pointed out that the assessee was not a casual speculator, but a regular investor in shares and securities. The entire case of the Revenue, in contrast, rests exclusively upon the generalised findings of the Investigation CO No.147/Mum/2025 Hareshkumar Manjibhai Patel Wing. That report recites, inter alia, the statement of Shri Dipan Patel, erstwhile director of SRDL, who is stated to have admitted that the scrip was used as a vehicle for providing accommodation entries of long-term capital gains to certain beneficiaries. The report also commented on the financials of the company, contending that its fundamentals did not support the prevailing market prices. 16.1. However, a perusal of the very balance sheets of SRDL, as extracted in the assessment order itself, reveals that as on 31/03/2013 the company had a net worth of ₹25.17 crores, and as on 31/03/2014 it stood at ₹44.02 crores. These figures belie the claim that the company was devoid of substance. Further, the price movement of the scrip did not reflect the classic ―bell curve‖ which is often symptomatic of manipulated penny stocks. 16.2. More significantly, when the assessee sold his shares during June to August 2017, Shri Dipan Patel was no longer a director of the company. The shares continued to remain listed and actively traded on the stock exchange. The learned Counsel rightly emphasised that the names of the assessee and his broker do not figure in the list of IPO allottees or alleged beneficiaries reproduced in the assessment order. Likewise, from a plain reading of the SEBI’s order, it emerges that neither the assessee nor M/s. Anand Rathi Share & Stock Brokers was implicated in the investigation. 16.3. The SEBI adjudication clearly recorded that its enquiry was confined to 21 noticees for the period 04/06/2015 to CO No.147/Mum/2025 Hareshkumar Manjibhai Patel 31/03/2016. By contrast, the assessee’s impugned transactions fell between June and August 2017, long after the investigation period, and his acquisition dated back to November 2013. Consequently, the SEBI’s findings cannot be read against him. On the contrary, in paragraph 61 of its order, SEBI recorded the following finding: “I find that the investigation did not bring out the disproportionate gain or unfair advantages to the Noticees and loss caused to investors as a result of the manipulation of price in the scrip of SRDL. However, in the present matter, I note that by executing manipulative trades and carrying out trades with the connected parties Noticees contributed to decrease in the price of the scrip and also led to Increase in the volume substantially during the IP. Noticees have thus violated the provisions of PFUTP regulations as described in the foregoing paragraphs. Such acts of the Noticees are against the integrity of the market which leads to loss of trust of the investors.”

Having carefully weighed the rival submissions and examined the SEBI adjudication order, we note that the allegation of price manipulation was confined strictly to certain identified noticees for the limited investigation period of 04/06/2015 to 31/03/2016. Importantly, SEBI itself recorded a categorical finding that the investigation did not bring out any disproportionate gain or unfair advantage accruing to such noticees, nor any concomitant loss to investors as a result of alleged manipulation of the SRDL scrip during the period under consideration. In other words, even qua the noticees, the charge of artificial rigging was not conclusively established. 17.1. Consequently, the SEBI order cannot, by any stretch of logic, be pressed into service against the assessee, whose CO No.147/Mum/2025 Hareshkumar Manjibhai Patel transactions of sale were effected in June to August 2017— well outside the investigation window. Further, it is a matter of record that the trading in SRDL shares was suspended by the stock exchange only with effect from 26/06/2023, i.e., nearly six years after the assessee had liquidated his holdings, and thereafter the scrip was again permitted to be traded. This chronology demolishes the Revenue’s theory that all transactions in the scrip, irrespective of timing, must be tarred with the same brush. 17.2. If the assessee, as a regular investor, purchased shares through a preferential allotment at a premium price, held them for a prolonged period of over four years, and sold them through the recognised stock exchange mechanism with full STT compliance, then absent any contrary evidence, such transactions cannot be labelled as sham or colourable. Indeed, as rightly pointed out by the learned Counsel, the Delhi Bench of the Tribunal in Reena Kumari v. ITO (2025) 170 taxmann.com 430, dealing specifically with SRDL, had occasion to consider the very same SEBI order and held, after detailed examination, that transactions of purchase and sale of SRDL shares supported by proper evidences were genuine. Likewise, several other co-ordinate benches, while adjudicating appeals arising from the very same scrip, have consistently accepted the genuineness of such transactions when backed by unimpeached documentation. 17.3. Thus, the edifice of the Assessing Officer’s order, resting solely on a generic investigation report and third-party statements, cannot be elevated to the status of conclusive CO No.147/Mum/2025 Hareshkumar Manjibhai Patel evidence against the assessee. No independent enquiry was undertaken in the assessee’s case, nor was any effort made to dislodge the contemporaneous records produced. Therefore, the finding of the Assessing Officer in making the addition of ₹3,16,08,941/- under section 68 is devoid of legal or factual foundation and cannot be sustained. One further significant aspect merits emphasis: the assessee had held these shares for more than four years, and part of the holding had already been sold in A.Y. 2016–17 without any objection from the Department. It defies logic that the very same shares, sold a few years later at comparable prices, should suddenly metamorphose into ―bogus‖ sales. This is not a case where shares were acquired for a pittance and offloaded at an exorbitant value in a short span, but rather one of long-term investment yielding gains in the ordinary course of capital appreciation. 17.4. In view of these facts and circumstances, we find ourselves in complete agreement with the reasoning of the learned CIT(A), whose well-considered decision to delete the impugned additions deserves to be upheld. The grounds raised

Turning now to the Cross Objection filed by the assessee, it is noted at the outset that the same is delayed by 257 days. An application for condonation of delay, supported by a sworn affidavit, has been placed on record. In the cross objection, the assessee has primarily challenged the validity of the reopening proceedings on diverse grounds, including the argument that the notice issued under section 148A(b) was vitiated for non-supply of the material relied upon by the Assessing Officer, contrary to the mandate of the Hon’ble Supreme Court in Union of India v. Ashish Agrawal (supra). 20.1. However, since we have already adjudicated the controversy on merits in favour of the assessee, resulting in the deletion of the substantive additions, the legal issues raised in the cross objection are rendered purely academic. In such circumstances, we refrain from adjudicating the same and dismiss the cross objection as infructuous, leaving all questions of law expressly open.

In conclusion, the appeal of the Revenue is dismissed and the Cross Objection of the assessee is also dismissed as infructuous. Order pronounced on 11th September, 2025.