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Facts
The Revenue appealed against the deletion of additions related to estimated commission income from share trading and cash handling made by the AO. The assessee, a director in a company allegedly involved in share price manipulation to generate bogus long-term capital gains, claimed no involvement in such activities.
Held
The Tribunal held that the AO failed to provide any material evidence to establish the assessee's direct involvement in rigging share prices or earning commission. The CIT(A)'s deletion of the additions was upheld, citing the lack of corroborative evidence and the findings of SEBI.
Key Issues
Whether the AO can estimate commission income based on the statement of an office boy and general market manipulation allegations without direct evidence linking the assessee.
Sections Cited
10(38), 153A, 132(4), 131
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Income Tax Appellate Tribunal, MUMBAI “D” BENCH : MUMBAI
Before: SHRI B.R. BASKARAN & SHRI NARENDER KUMAR CHOUDHRY
O R D E R PER BENCH : The appeals of the Revenue and the cross objections filed by the assessee are directed against the orders passed by the Ld CIT(A)-50,
2 Manoj Naginlal Jain, (batch)
Mumbai and they relate to the Assessment Years (AYs.) 2013-14 to 2019-20. The issues contested in these appeals are identical in nature and further, they are based on same set of facts. Hence, all these appeals were heard together and are being disposed of by this common order for the sake of convenience.
The additions relating to estimated commission income relating to trading in shares and handling of cash, made by the AO in all the years under consideration were deleted by Ld CIT(A) and hence the revenue is challenging the orders passed by him.
In the cross objections, the assessee has raised certain legal grounds besides supporting the orders passed by Ld CIT(A).
The facts relating to the case are discussed in brief. The assessee herein is an Individual and director of a public listed company named M/s Confidence Finance and Trading Ltd (CFTL). The income tax department carried out search and seizure operations on various stock brokers and during the course of search action, it came to light they are manipulating the prices of shares of certain companies in order to generate bogus long term capital gains, which could be given by way of accommodation entries to various beneficiaries. It was noticed that the share prices of M/s Confidence Finance and Trading Ltd have also been manipulated by them. 4.1. It was noticed that M/s SKM Steel group had also availed bogus long term capital gain by trading in the shares of M/s CFTL and claimed exemption u/s 10(38) of the Act. In the connection, the revenue carried out search and seizure operations in their hands on 10-01-2019. On the very same day, the assessee, being a director of CFTL was also subjected to search operations. Consequent thereto, the assessment of the 3 Manoj Naginlal Jain, (batch) assessment years under consideration were completed u/s 153A of the Act.
The assessee company was earlier known as Confidence Finance Trading Ltd. The present management acquired the above said company and the name of the company was changed into the present name. The Managing director of the company had worked with BSE for more than 20 years in various capacities. He took VRS, since he suffered injuries during Bombay train blast. Hence the above said company was acquired by him to start broking and merchant banking activities. However, due to health problems, he abstained himself from day to day activities.
The AO noticed that the prices of shares of M/s Confidence Finance and Trading Ltd were being manipulated in order to generate long term capital gains, which could be given as accommodation entries to the beneficiaries. The modus operandi of generation of bogus capital gains was explained in the report given by the Investigation wing. In the report it is stated that certain operators are manipulating the prices of shares with the help of promoters of the companies and also certain other persons named as „Exit Providers‟, who were facilitating purchase of the shares, when they were sold by the beneficiaries. Since the assessee herein is a director in CFTL, the search action was undertaken in his hands. It is pertinent to note that the search team did not find any incriminating material to support the case of the revenue that the assessee was part of the group that were manipulating the prices of shares of above said company.
During the course of assessment proceedings, the AO fully placed his reliance on the report given by the Investigation wing. The AO has discussed the modus operandi followed by the operators for rigging the prices of shares, the allotment of shares on preferential basis, splitting of 4 Manoj Naginlal Jain, (batch) shares, merger of companies, role of exit providers, trading of shares for a short period, unusual price rice not commensurate with fundamentals etc. The AO has also referred to the statements given by certain operators/exit providers, viz., Shri Chandrakant Babu Mohite, Shri Pradeep Dhanuka (director of Rupak Developers P Ltd, VRP Financial Services P Ltd and Romy Realty P Ltd) and noticed that both the persons are of no means and their name has been used by certain operators. The AO also referred to the statement recorded from the assessee during the course of search and observed that the assessee did not give proper answers to most of the questions. The AO has also observed that the assessee did not give details of allottees of preference shares, board resolution etc in support of the allotment.
Accordingly, the AO came to the conclusion that the assessee has earned commission income in providing bogus long term capital gains and short term capital loss/trading loss by using the shares of M/s CFTL. For arriving at the quantum of commission, the AO collected from BSE the details of trading value done in the shares of above said company and estimated commission income @ 2% of the value of trading done in the stock exchange in all the years under consideration.
During the course of search action, the search team recorded a statement from Shri Ramesh Govind Natki u/s 131 of the Act. He was an office boy working with the assessee. In the statement, he had stated that he had handled cash of the assessee by collecting them from angadias. The average cash handled per year was stated by him as Rs.40.00 lakhs per year since 2015-16 till 2019. When confronted with the said statement, the assessee denied the same and stated that the above statement is not corroborated with any material. He also stated that the aggregate amount of cash withdrawn from the bank account of the 5 Manoj Naginlal Jain, (batch) assessee company matches with the above said estimate made by Shri Ramesh Natki and he may be mentioning that only. He further submitted that he was handing over/collecting tapals to/from courier people, who are also called as angadias in the trade parlance. Accordingly, the assessee contended that no credence should be given to the statement recorded from Shri Ramesh Natki. However, the AO did not accept the explanations given by the assessee and took the view that the assessee would have earned commission income in handling cash also. The AO estimated the said commission income @ 2% of average cash amount of Rs.40.00 lakhs stated by the office boy Shri Ramesh Govind Natki and added Rs.80,000/- per year in Asst. Years 2016-17 to 2019-20.
Before the Ld CIT(A), the assessee submitted (a) that he is only a director in the above said company drawing salary from it and he is in charge of company‟s operations. It was submitted that either CFTL or he does not have any role in the prices quoted in the stock exchange, i.e., the prices of shares of any company is determined on the basis of various market forces. Further, the trading of shares takes place in a screen based online portal, where the buyers and sellers will not know each other. Accordingly, the assessee contended that he cannot be alleged to be involved or controlling the prices of shares of CFTL. (b) that the AO did not bring any material to show that the assessee has acted as either buyer or seller of the shares of above said company. The AO has also not stated as to whether the assessee was identified as one of the alleged operators or exit providers (c) that the market regulator SEBI has conducted enquiries on the allegation of rigging of prices of shares of CFTL, but did not find any 6 Manoj Naginlal Jain, (batch)
fault with CFTL or the directors of the above said company. Hence, they have discharged the company and assessee by passing following order:- “33. In view of the aforesaid facts and circumstances of this case, since the connection of VRP and CFTL by way of funds transfer could not be established, I am inclined to hold that the Noticee 1 to 5, i.e., the company and its directors were not involved in the manipulation of the price of the scrip as alleged in the SCN.” The Notice No.1 to 5, were the above said company, the assessee herein and three more persons. The SEBI investigated whether the funds transferred between various companies were used for buying shares of CFTL with the motive of manipulating prices of shares or not. Finally SEBI noticed that the company and its directors were not involved in the manipulation of prices of shares. (d) that the AO has not identified any cash trail to prove his allegation that the assessee has earned commission in rigging of prices and generating long term capital gains. (e) that the AO has made the addition on the basis of surmises and conjectures, which is not permitted as held by Hon‟ble Supreme Court in the case of Omar Salay Mohammed Sait Vs. CIT (1959)(37 ITR 151)(SC) and CIT vs. Daulat Ram Rawatmull (1973)(87 ITR 349)(SC). 10.1. With regard to the preferential allotment of shares, the assessee submitted that the shares were issued on preferential basis to various subscribers after fulfilling all the statutory requirements and also by passing board resolutions. The shares having par value of Rs.10/- each
7 Manoj Naginlal Jain, (batch) were issued with a premium of Rs.5/- each. For that purpose, a share valuation report was also obtained to substantiate the issue price. The allotment details were duly filed with ROC. The BSE has also approved the listing of shares issued on preferential basis. All the details were furnished to the search officials at the time of search proceedings. Accordingly, it was contended that the AO was not correct in stating that the assessee did not furnish any details relating to preferential allotment of shares. 10.2. The assessee also contended that the price movement pattern of the shares of the above said company was referred to by the AO. But the same is dependent upon various factors and need not necessarily based on the financial performance of the above said company. The assessee also cited examples of certain reputed listed companies, wherein the financial performance and the prices were different. 10.3. The AO had placed reliance on the statements recorded from certain persons who were identified as operators and exit providers, viz., Shri Chandrakant Babu Mohite, Shri Pradeep Dhanuka, Shri Vipul Vidhur Bhat and Shri Ramesh Govind Nakti. The assessee submitted before Ld CIT(A) that he does not have any connection with any of the four parties. He also submitted that the AO did not confronted entire statement with him and did not mention whether any of the above said parties have referred the name of the assessee as a person manipulating the prices. 10.4. The assessee also referred to certain decisions rendered by the Tribunal, wherein the Tribunal had accepted the long term capital gains declared by the investors on the sale of shares of CFTL. Accordingly, the assessee contended that the purchase and sale of shares of CFTL were independent transactions carried on by the investors on the basis of their market information. Hence the assessee cannot be found fault with for the 8 Manoj Naginlal Jain, (batch) increase or decrease in the prices of shares. Further, there is no material available with the AO to suspect involvement of the assessee in the alleged rigging or manipulation of prices of shares of above said company.
The Ld CIT(A) was convinced with the contentions of the assessee. The Ld CIT(A) noticed that the AO had relied upon statements given by certain persons who were identified as operators and exit providers. The Ld CIT(A) examined their statements and noticed that none of them have named the assessee as a person involved in the manipulation of prices. Further, search officials also did not find any material to prove the case of the AO that the assessee herein is either related to or directly involved in manipulating the scrip of M/s Confidence Finance and Trading Ltd. The Ld CIT(A) further noticed that the AO did not bring any other material on record to conclude that the assessee is involved in the manipulation of price of the shares of above said company. 11.1. The AO had alleged that the assessee did not give cogent replies in the statement taken from him during the course of search u/s 132(4) of the Act. The Ld CIT(A) examined that statement given by the assessee and found that the assessee has given proper replies to various questions, i.e., the assessee has given full details in his possession like details of allotment of preference shares. If the assessee is not connected with any allegation, he has categorically stated that he was not aware of any exit providers. Hence, the Ld CIT(A) held that the view expressed by the AO with regard to the statement given by the assessee is factually incorrect. 11.2. The AO had also relied upon the statement given by office boy named Shri Ramesh Nakti in order to arrive at the conclusion that the assessee had cash dealings with Angadias. Upon the examination of the statement so given by the above said person and the reply given by the assessee, the Ld CIT(A) concluded that the statement so given by the above
9 Manoj Naginlal Jain, (batch) said person cannot be the basis to arrive at the conclusion that the assessee had handled cash outside the books and hence it cannot be taken support of to arrive at the conclusion that the assessee is directly involved in manipulation of share prices. 11.3. With regard to the rise in prices of shares which were not commensurate with the financials of the above said company, the Ld CIT(A) held that the said fact does not indicate involvement of the assessee in such a price rise. Further, no documentary evidence was found either during the course of the search conducted on the exit providers or during the search on the assessee, which would indicate that there was connection or involvement of the assessee in manipulation of the prices of scrip. 11.4. The Ld CIT(A) also noticed from the order dated 31.12.2018 passed by SEBI, wherein the show cause notice issued to the above said company, the assessee and other three persons were disposed of without any direction. Accordingly, the Ld CIT(A) held that the SEBI had conducted independent enquiries with regard to the trading and dealings in the script of M/s Confidence Finance and Trading Ltd for suspected manipulation of price of the shares of above said company, but did not record any adverse finding against the assessee. Thus, SEBI also did not allege any involvement of the assessee in the manipulation of prices of shares. The Ld CIT(A) also examined an Adjudication order dated 28-02-2019 passed by the Adjudicating officer, SEBI, wherein the adjudicating officer has categorically stated that it is not established that the company, assessee and other three persons were part of the manipulative scheme to manipulate the price of the scrip to benefit the preferential allottees. 11.5. Accordingly, the Ld CIT(A) deleted the addition relating to commission income on traded value of shares of above said company in AY
10 Manoj Naginlal Jain, (batch)
2013-14 to 2019-20 and also the addition relating to commission income on handling of cash in AY 2016-17 to 2019-20. The revenue is aggrieved.
The Ld D.R submitted that the AO has discussed the modus operandi followed by a syndicate for providing bogus long term capital gains. The syndicate involves the operator of the scrip, the promoter of listed company (penny stock company), the share brokers, the exit providers and the beneficiaries of Capital gains. The Ld D.R submitted that the promoters are paid some cash commission and in return, they allow the operator to manage the affairs of the company. The operator issues the shares to the beneficiaries through preferential allotment, manipulates the prices through circuitous and pre-arranged transactions till the prices reach the desired level. Thereafter, the prices fall sharply after the shares are off loaded in the stock exchange and they are used for the benefit of seekers of short term capital loss. The price movement does not have any relation with actual financial performance of the company. The Ld D.R submitted that M/s Confidence Finance and Trading Ltd has also issued preference shares to 49 persons at Rs.15/- per share consisting of face value of Rs.10/- and premium of Rs.5/-. Subsequently, the shares were split in the ratio of 1 : 10. The price rise in the shares of above said company did not have any correlation with its financial performance. The Ld D.R further submitted that the exit providers were found to be persons of low means and acted as dummy directors in concerns which were purchasing the shares of the above said company from the market. The assessee has admitted that he is the main person in the above said company, which was having only six staffs including peon. Accordingly, the Ld D.R submitted that the prices of shares of M/s Confidence Finance and Trading Ltd could not have been manipulated without the connivance of the assessee herein. The ld D.R further submitted that the Ld CIT(A) could not have placed reliance on the order
11 Manoj Naginlal Jain, (batch) given by SEBI, since SEBI‟s enquiry was limited to buying trades by few parties and transfer of funds between them. The SEBI was only investigating as to whether these funds were utilized for purchasing shares of Confidence Finance and Trading Ltd. The Ld D.R submitted that SEBI was not privy to the various statements given by the dummy directors/controllers of the companies acting as exit providers. Their role has been found out by the investigation wing of Income tax department. Accordingly, the Ld D.R submitted that the SEBI order cannot negate the evidentiary value of the statement of exit providers recorded during the search. Accordingly, the Ld D.R submitted that the Ld CIT(A) was not justified in deleting the commission income estimated by the AO. With regard to the commission income estimated in handling of cash, the Ld D.R submitted that the statement taken from the staff of the assessee clearly established that the said staff was handling cash through angadias on behalf of the assessee. Hence the AO was justified in estimating commission income on handling of cash also.
The Ld A.R, on the contrary, fully supported the order passed by Ld CIT(A) and contended that the Ld CIT(A) has passed a reasoned order, which does not call for any interference.
We heard rival contentions and perused the record. We notice that the assessee herein is a wholetime director in M/s CFTL getting salary from the above said company. It is the allegation of the Income tax department that the prices of shares of above said company are being manipulated or rigged in order to generate bogus long term capital gains, which are given by way of accommodation entries to the beneficiaries. According to the department, the manipulation of prices of shares has been undertaken by a syndicate consisting of operators, share brokers, exit providers, the promoters and persons seeking capital gains. Since, it is 12 Manoj Naginlal Jain, (batch) stated that the promoters are also involved in rigging of prices, the revenue has taken the view that the assessee, being one of the directors of M/s CFTL is also involved in the rigging/manipulation of prices of shares of above said company. 14.1. We notice that the Ld CIT(A) has recorded a finding that the search officials did not find any material to support the case that the assessee was involved in the alleged manipulation of prices of shares of CFTL. We notice that the AO has also fully placed his reliance on the report of the search officials and he also did not bring any material on record to support the case of the search officials. In our view, if any allegation of such kind is made, then it will be a starting point to further probe into the matter in order to find out the truth, i.e., whether the assessee herein was also involved in the rigging/manipulation of prices of shares of CFTL. It is stated that the manipulation of prices was done by a syndicate consisting of many persons on a commission to provide accommodation entries in the form of longterm capital gains. Hence, there should be some material to show that the assessee had also a share in the commission income alleged to have been earned by the syndicate, if it is shown that the assessee was part of the syndicate. 14.2. However, we noticed that the AO did not carry out any further investigation and instead placed his reliance fully upon the investigation report, wherein the statements taken from certain persons, the statement taken from the office boy of the assessee, the financial performance of the company, the fact of unusual rise in the prices of shares etc., were given. As held by Ld CIT(A), all the above said reports may show alleged rigging of prices of shares, but what is required to be established is the involvement of the assessee herein in such kind of manipulation, which would warrant making addition of income, if any, earned by the assessee out of the same.
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14.3. Since the neither the search team nor the AO could bring any material to show that the assessee was involved in rigging of prices of shares and he did earn some commission, thereon, the Ld CIT(A) finally concluded as under:- “20. In view of the above, I find that apart from the statements recorded during the search proceedings, no evidence has been presented to establish that the appellant was directly involved in manipulating the share prices or received cash in connection with such activities. Further, no cash was found during the search proceedings, nor was any material evidence discovered during the course of the search or subsequent assessment proceedings that could substantiate any undisclosed income or irregular financial transactions. The addition proposed by the AO is based solely on the statement recorded under oath u/s 131 of the Act. However, it is well- established that in the absence of corroborative evidence, a statement recorded u/s 131 of the Act, without any supporting material, cannot form the sole basis for an addition in the hands of the assessee. Additionally, no cash was discovered in the appellant's possession during the search, nor has the investigation wing or the AO provided any evidence to substantiate a cash trail. Moreover, the SEBI in its finding held that the appellant is nowhere connected to rigging in the shares of M/s Confidence Finance and Trading Limited. The decision given by the SEBI body after the search and enquiry & proceeding was before the search happened on the appellant. Since there is the specific findings of SEBI in the appellant case, and further, in the appellant's statement recorded during the search proceedings u/s 132(4) of the Act, he has denied all the findings of the investigation department and nothing has been established from the statement of 14 Manoj Naginlal Jain, (batch) the appellant, I find no basis for upholding the addition made by the AO. Accordingly the addition made by the AO is hereby ALLOWED.” 14.4. We noticed earlier that the Ld CIT(A) has addressed each of the reasons given by the AO in order to arrive at the conclusion that the assessee was part of the syndicate that manipulated the prices. The Ld CIT(A) has also established that the reasoning given by the AO are not based on any credible material, meaning thereby, the AO has only arrived at his conclusion on the basis of presumptions, surmises and conjectures. It is well established principle that the suspicion how so ever strong it may be, will not replace the evidence. Further, as submitted by the assessee, the assessee or the company M/s Confidence Finance and Trading Ltd were not concerned or will not have any control over the prices of shares quoted in the stock exchange, since the market prices are governed by various factors. Hence, if some of the operators are involved in rigging of prices of shares, in our view, the assessee, being the director of the above said company, cannot be implicated for the action carried on by some operators, unless it is established that the assessee was also part of their group. The Ld CIT(A) has given a finding that there is no material to show that the assessee was part of the group alleged to be involved in the rigging of prices. Further, in the statements given by certain persons, they did not refer to the name of the assessee. Further, it is noticed that the AO did not confront those statements with the assessee. Hence, the AO could not have placed reliance on those statements. We also notice that the SEBI has issued show cause notices to the company, assessee and three other persons, but disposed them of without further enquiry. It is the submission of the assessee that the SEBI initiated enquiry for enquiring into the involvement of these persons in the rigging of prices, but did not proceed further, after it was satisfied that they are not involved in those activities. Though the Ld D.R disputes this submission, yet the fact that 15 Manoj Naginlal Jain, (batch) would remain is that the SEBI has not taken any action against the assessee. 14.5. We further notice that the AO has estimated commission income on the entire sales that took place in the stock exchange platform, i.e., he has presumed that the assessee alone is instrumental for the entire sales that took place in the stock exchange platform. First of all, there is no material to come to such a conclusion and secondly, as per the modus operandi explained by the investigation wing, many people were involved therein, i.e., the allegation is that the price rigging has been done by a syndication consisting of operators, exit providers, promoters and capital gain seekers. Hence, imputing the assessee alone in respect of all sales would defy the logic. In any case, unless it is proved with evidences that the assessee was part of the syndication and also earned part of commission income, it would not be justified and correct to estimate commission income in the hands of the assessee. Accordingly, we are of the view that the Ld CIT(A) was justified in deleting the commission income estimated by the AO in all the years on the sales turnover reported by the BSE.
With regard to the commission estimated on handling of cash, we notice that the AO has placed reliance on the statement taken from an office boy, who has said that he has handled cash for giving to or collecting from angadias on behalf of the assessee. The moot point is that the above said statement is not supported by any evidence. Further, the assessee has denied the statement so given by the above said person. The AO has presumed that the cash so handled was used to rig the prices, which is not supported by any material. Hence, in the absence of any material to corroborate the statement so given by the office boy and also in the absence of any cash trail to support the presumption of the AO, we are of the view that the AO was not justified in estimating commission income in 16 Manoj Naginlal Jain, (batch) handling of cash. Even if the statement so given by the office boy is presumed to be correct for a moment, he has only stated that he has given cash to/collected cash from angadias on alleged instruction of the assessee. In that case, we are unable to understand how the assessee could have earned commission income thereon. Accordingly, we are of the view that the Ld CIT(A) was justified in deleting commission income estimated on the alleged handling of cash.
In the cross objections filed by the assessee, many legal issues have been raised. Since we have confirmed the orders passed by Ld CIT(A) in deleting the additions made by the AO, the above said legal issues contested by the assessee are rendered academic in nature. Accordingly, we leave them open.
In the result, all the appeals filed by the Revenue and all the cross objections filed by the assessee are dismissed. Order pronounced in the open court on 04-04-2025 Sd/- Sd/- [NARENDER KUMAR CHOUDHRY] [B.R. BASKARAN] JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated: 04-04-2025 TNMM
17 Manoj Naginlal Jain, (batch)