ITO 34 (1)(6), MUMBAI vs. SHRI ANURAG SHIVCHARAN AGARWAL, MUMBAI

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ITA 197/MUM/2020Status: DisposedITAT Mumbai29 December 2022AY 2009-104 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the CIT(A)'s decision to delete the addition, finding that the long holding period and moderate price increase supported the genuineness of the transaction. The revenue's appeal was dismissed.

What were the facts?

The Assessing Officer (AO) treated the sale of shares of JMD Telefilms Ltd. as an accommodation entry and added the long-term capital gain as unexplained income. The assessee had purchased these shares in AY 2000-01 and sold them in AY 2009-10 after holding them for over eight years.

What were the issues?

Whether the sale of shares, despite being classified as penny-stock by the AO, was a genuine transaction given the long holding period and moderate gains. The issue of reopening under Section 147 was not adjudicated on merits.

Which sections of the Income-tax Act were involved?

Section 68,Section 147

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC” BENCH,

Before: SHRI ABY T. VARKEY, JM

For Appellant: Ms. Simoni Chauhan
Hearing: 23/11/2022Pronounced: 29/12/2022

Cross Objection No. 145/Mum/2021 Arising out of (निर्धारण वर्ा / Assessment Year: 2009-10) Anuraag Shivcharan ITO-34(1)(6) बिधम/ Agarwal Room No. 726, Kautilya Vs. B-607/608, Lok Tirth Bldg, Bhawan, G Block, BKC, Marve Road, Malad West, Bandra East, Mumbai- Mumbai-400064. 400051. स्थधयी लेखध सं./जीआइआर सं./PAN/GIR No. : ADDPA1846Q (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee by: Ms. Simoni Chauhan Revenue by: Shri Mahender Ahuja सुनवाई की तारीख / Date of Hearing: 23/11/2022 घोषणा की तारीख /Date of Pronouncement: 29/12/2022 आदेश / O R D E R PER ABY T. VARKEY, JM: These are revenue appeal and cross-objection preferred by assessee against the order of the Ld. CIT(A)-46, Mumbai dated 23.10.2019 for AY. 2009-10.

2.

The grounds of appeal of the revenue is against the action of the Ld. CIT(A) deleting the addition of Rs.11,67,597/- made by AO holding that the purchase and sale transaction in the shares of M/s.

C.O. 145/Mum/2021 A.Y. 2009-10 Anurag Shivcharan Agarwal JMD Telefilms Ltd. was accommodation entry and treating the same as unexplained gain/income from sale of penny-stock.

3.

Brief facts are that the assessee had filed the return of income for AY. 2009-10 on 30.07.2009 declaring total income at Rs.4,08,330/- which was processed u/s 143(1) of the Income Tax Act, 1961 (hereinafter “the Act”). Later, the AO received an information that the assessee had carried out transactions of a penny-stock and the assessee is one of the beneficiary. According to the AO, the assessee has sold shares of M/s.JMD Telefilms Ltd. at Rs 13,03,070/- in the year under consideration. And therefore, according to the AO, the assessee has received accommodation entry as per the information received from DCIT, OSD (Inv.-II) related to transaction of Penny-stock. And therefore he disallowed the claim of exemption on Long Term Capital Gain (LTCG) transaction of Rs.11,67,597/- which was added u/s 68 of the Act. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) which was decided in favour of the assessee by allowing the appeal. Aggrieved, the revenue is before us by preferring the appeal whereas the assessee have filed the cross-objection raising the legal ground against the reopening carried out by the AO u/s 147 of the Act which was not adjudicated by Ld. CIT(A), since the assessee got relief in the quantum assessment.

4.

Having heard both the parties and perused the records. We note that the Ld. CIT(A) has found that the assessee had purchased 65,000 shares of Rs.10 each of M/s.JMD Telefilms Ltd. which was earlier known as M/s. Avtar Finance & Management Consultants Ltd on C.O. 145/Mum/2021 A.Y. 2009-10 Anurag Shivcharan Agarwal 29.09.2001 i.e. AY. 20002-03. According to the Ld. CIT(A), this fact of assessee purchasing these shares was supported by annual return for year ending 31.03.2002 of the company M/s. Avtar Finance & Management Consultants Ltd. The assessee also brought to the notice of the Ld. CIT(A) that the shares after being purchased were Demated on 26.05.2007; and the assessee had sold 45,560 shares on 13.01.2009 for net consideration of Rs.8,68,810/- (sale price of Rs.19.06 per share) and the balance shares i.e. 19,440 shares of M/s. JMD Telefilms Ltd. were sold on 03.02.2009 for net consideration of Rs.4,28,788/- (sale price of Rs.22.05 per share). Thus the total net consideration received in AY. 2009-10 on sale of 65,000 of JMD Telefilms Ltd was to the tune of Rs.12,97,597/-. The Ld. CIT(A) has noted that the assessee has held the shares of M/s. JMD Telefilms Ltd. for more than eight (8) years. The Ld. CIT(A) acknowledges that evidence of this fact has been furnished before him. And based on the aforesaid fact that the assessee had purchased the shares as early as on 29.09.2001; and held it for more than eight (8) years before selling the same and sold the same when price increased moderately of Rs.19.06 & Rs.22.05 shares, he was of the opinion that the said sale transaction cannot be disallowed only on the plea that it is a penny-stock. I concur with the aforesaid reason of Ld. CIT(A) that the assessee having held the shares from year 2001, and sold the same in this assessment order after holding for a period of months eight (8) years and also had sold the same when price increased moderately of Rs.19.06 & Rs.22.05 per share. The action of the Ld. CIT(A) accepting the claim of assessee cannot be held it to be unreasonable in the facts and circumstance of

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