THE PRINCIPAL COMMISSIONER OF INCOME TAX vs. GYANDEEP KHEMKA

[2025:RJ-JP:15398-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 111/2019 The Principal Commissioner Of Income Tax, (Central) New Central Revenue Building, Statue Circle, Jaipur ----Appellant Versus Gyandeep Khemka, 30, Khemka House, Kishan Nagar, Shyam Nagar Extension, Janpath, Jaipur ----Respondent For Appellant(s) : Mr. Siddharth Bapna with Mr. Meyhul Miittal For Respondent(s) : Mr. Rajat Sharma with Mr. Akshay Sharma for Mr. Sanjay Jhanwar, Sr. Adv. HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE MANEESH SHARMA Order 07/04/2025 AVNEESH JHINGAN, J (ORAL):- 1. This appeal under Section 260A of the Income Tax Act, 1961 (for short ‘the Act’) is filed against the order dated 08.03.2019 passed by the Income Tax Appellate Tribunal (for short ‘the tribunal’). 2. The tax effect involved in the appeal is less than rupees two crores, however, the appeal is being pressed by the revenue contending that the case falls within Clause-3.1.(h) of the Circular No.5/2024 involving organized tax evasion through penny stock and accommodation entries.

[2025:RJ-JP:15398-DB] (2 of 5) [ITA-111/2019] 3. The respondent-assessee filed return for assessment year (A.Y.) 2014-15 declaring total income of Rs.15,30,380/-. The assessment under Section 143(3) of the Act was finalized vide order dated 19.12.2016. The business loss claimed for trading in stock of M/s Nikki Global Finance Ltd. (hereinafter referred as ‘M/s Nikki’) was disallowed and an addition of Rs.1,67,29,332/- was made. The commission paid of Rs.3,34,587/- for transactions with M/s Nikki was also added. The CIT(A) deleted the addition of the losses and commission but upheld the disallowance under Section 14A of the Act. Both the revenue and asseessee approached the tribunal. The appeal of the department was dismissed vide order dated 19.12.2016 and partial relief was granted to the assessee in the cross objection. 4. The only issue pressed in appeal relates to the addition of losses sustained by the assessee while dealing with shares of M/s Nikki and commission paid on the transactions. 5. Learned counsel for the revenue argues that there was an information received by the department from investigation wing that M/s Nikki was a penny stock company. The Securities and Exchange Board of India (SEBI) was conducting enquiry with regard to script of M/s Nikki. The information was provided to department that the modus operandi adopted to extend the benefits to the investors was through operators and by selling the shares held by the investor to the shell private limited company.

[2025:RJ-JP:15398-DB] (3 of 5) [ITA-111/2019] The contention is that in absence of the major capital there was no justification for the share price on which purchases were made and the loss was incurred by purchasing and selling shares in span of two months. 6. Learned counsel Mr.Rajat Sharma appears as caveator on behalf of the respondent submits that all the documentation to support the transactions were produced during the assessment proceedings. There was no information with the department qua the transactions of the assessee. 7. The investigation done by the department and information made public by SEBI was general in nature. The statements of Shri Sanjay Vora and Sh.Deepak Patwari recorded during survey of M/s Anand Rathi Shares & Stock Brokers were made foundation for bringing the transactions by assessee of the shares of M/s Nikki under cloud. 8. It is not disputed that M/s Nikki was a listed company. The existing share price on the date of purchase and sale are not disputed by the revenue. The assessee produced the documents to substantiate that:- (i) the transaction was done through M/s Basan Equity Broking Ltd. (hereinafter ‘M/s.Basan Equity’); (ii) the considerations were received and paid through the banking channels; (iii) the shares

[2025:RJ-JP:15398-DB] (4 of 5) [ITA-111/2019] were transacted through demat account; (iv) and tax was paid on the sale transactions as well as purchase transactions. The contract between the assessee and M/s.Basan Equity, the account statement of demat account, bank accounts, receipts of security transactions paid were produced. 9. The concurrent factual findings recorded by the CIT(A) and the tribunal are that the transaction of sale and purchase of the share was of a listed company. The prices of shares prevailing are not in dispute. It was not a case of isolated transaction with M/s Nikki but assessee dealt with the shares of different companies through IPOs. Further that there was neither a specific information with the revenue qua the transaction of the assessee relating to the shares of M/s Nikki nor there was an evidence with regard to findings recorded by the SEBI that price of the scripts purchased and sold were rigged or manipulated. Lastly, the statement recorded of the representatives of M/s Anand Rathi Shares & Stock Brokers were of no relevance as the assessee transacted through M/s.Basan Equity. 10. The findings recorded by the appellate authorities on the basis of the evidence produced are not being disputed before this Court. The contention of the revenue is that the prices of the shares were not proportionate to the capital of M/s Nikki deserves rejection. In absence of material worth acceptance with regard to

[2025:RJ-JP:15398-DB] (5 of 5) [ITA-111/2019] manipulation of the share price and revenue not disputing the transactions of sale and purchase, the share price of the listed company in recognized stock exchange cannot be doubted or determined in an enquiry being held in assessment proceeding under the Act. In other words the claim made by assessee in accordance with law cannot be disallowed on surmises and conjectures. 11. In appeal under Section 260A of the Act a substantial question of law is to be decided and there cannot be reappreciation of fact except in case of perversity. In case in hand the concurrent findings of fact recorded by appellate authorities are being challenged and that to without basis. 12. No substantial question of law is involved and the appeal is dismissed. (MANEESH SHARMA),J (AVNEESH JHINGAN),J RIYA/8 Whehter Reportable: Yes