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Facts
The assessee, engaged in share trading, challenged additions made by the AO under Section 68 for bogus long-term capital gains. The AO based additions on information from a search on a syndicate involved in providing accommodation entries. The assessee argued that its trading profits were from the sale of shares and not long-term capital gains.
Held
The Tribunal held that the assessment was based on incorrect facts, as the assessee did not claim any exempt income under Section 10(38). The additions made under Section 68 amounted to a double addition as the trading in shares was already accounted for in the sale of shares.
Key Issues
Whether additions under Section 68 for bogus long-term capital gains are justified when the assessee is engaged in share trading and has not claimed any exempt income under Section 10(38).
Sections Cited
68, 10(38)
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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY, HON’BLE & SHRI NARENDRA KUMAR BILLAIYA, HON’BLE
O R D E R PER NARENDRA KUMAR BILLAIYA, AM: & 2047/Mum/2024 are two separate appeals preferred against two separate orders of the NFAC, Delhi, dated 12/03/2024 pertaining to AYs 2015-16 & 2016-17.
Both these appeals were heard together and are disposed off by this common order for the sake of convenience and brevity.
The underlying facts in the issues are identical, therefore, we adjudicate the appeals on facts of AY 2015-16.
Representatives of both the sides were heard at length. Case records carefully perused and relevant documentary evidence brought on record duly considered in light of Rule 18(6) of the ITAT Rules, 1963. I.T.A. No. 2046 & 2047/Mum/2024 2
In both the appeals, the assessee has challenged the reopening of the assessment and also the additions made u/s 68 of the Act on merits of the case.
The ld. Counsel for the assessee did not press the ground relating to the reopening of assessment, therefore, the only grievance surviving relates to the merits of the addition made u/s 68 of the Act, though quantum may differ. 7. Briefly stated the facts of the case are that the assessee is engaged in the business of trading in shares and had filed its audited statement of accounts along with the return of income. 8. On the basis of information available with the AO, he came to know that search and survey action was conducted on a syndicate of Shri Naresh Jain & Associates. During the course of search and seizure action, several incriminating documents and digital data has been found which led to unearth the operations of the syndicate, establishing clearly the modus operandi of providing bogus long-term capital gains/losses and rigging the price of various scrips on stock exchange for providing bogus long-term capital gains/loss. 8.1. Taking a leaf out of such information, the AO discussed in detail general modus operandi in penny stock cases and came to the conclusion that a scheme had been hatched by various players to obtain/provide accommodation entries of bogus long-term capital gains through manipulation of stock market and the assessee is one of the beneficiaries of long-term capital gains and went on to make addition of Rs.7,01,61,033/- u/s 68 of the Act in AY 2015-16 and Rs. 9,05,98,704/- u/s 68 of the Act in AY 2016-17. & 2047/Mum/2024 3 8.2. The assessee challenged the addition before the ld. CIT(A) but without any success.
We have carefully perused the orders of the authorities below. A perusal of the assessment order shows that nowhere the AO has discussed the business of the assessee, its financial statements but has simply discussed the general modus operandi in penny stock cases. We are pained to find that nowhere the assessee has claimed any exempt income u/s 10(38) of the Act, meaning thereby that the assessee has not claimed any long-term capital gain/loss in its return of income. 9.1. As mentioned elsewhere, the assessee is trading in shares and engaged in the business of purchase and sale of shares which is evident from the financial statements furnished before the lower authorities and brought to our knowledge. Even in the computation of income there is no claim of any exempt income. The purchase and sale of shares are supported by contract notes, copies of the ledgers of brokers, D-mat statements and the bank statements. The books of accounts are audited. The assessee has shown turnover of Rs.50.29 Crores for the year ending March, 2015 and Rs.28.97 Crores, for the year ending March, 2016. A perusal of the profit and loss account shows that the revenue from operations depicting gross sales do not have any long-term capital gains. In fact, the revenue from operations simply contained sale of shares.
We are of the considered view that the entire assessment has been framed on the basis of the information and the general prevailing practice where a section of brokers/entry providers are engaged in rigging the market for providing bogus long-term capital gains so that & 2047/Mum/2024 4 the beneficiaries can claim the same u/s 10(38) of the Act as exempt from tax and bring their unaccounted money in the books without paying any tax. 10.1. The facts on record show that since the assessee is engaged in the business of trading in shares, any profit arising out of its business as shown under the head profits and gains of illness which is taxable as per the rates applicable and there is no claim of any exemption u/s 10 (38) of the Act.
Considering the facts of the case in totality, we are of the considered view that the entire assessment has been based upon wrong facts since the entire trading in shares has been absorbed in the sale of shares, making addition u/s 68 of the Act of few chosen scrips would amount to double addition of the same transactions. On the given facts of the case, the additions do not survive. The AO is directed to delete the same for both the assessment years.
In the result, appeals of the assessee are allowed. Order pronounced in the Court on 12th March, 2025 at Mumbai. (SAKTIJIT DEY) (NARENDRA KUMAR BILLAIYA) VICE-PRESIDENT ACCOUNTANT MEMBER Mumbai, Dated 12/03/2025 *SC SrPs *SC SrPs *SC SrPs *SC SrPs I.T.A. No. 2046 & 2047/Mum/2024 5