KALAVATHI DEVI SHARMA,HYDERABAD vs. ITO, WARD-1, NANDED, NANDED

4. Without prejudice to the grounds raised above, the Appellate Commissioner erred in confirming the notice issued u/s.148, dated 22.04.2021, by the Assessing Officer, which was issued after the new Finance Act came into effect from 01/04/2021, and after the enactment of the Taxation and Other Laws (Relaxation & Amendment of Certain Provisions) Act, 2020, and is barred by limitation.

5. The Appellate Commissioner erred in confirming, the issue of the communication u/s 148A(b) by the Assessing Officer, deeming the earlier notice under section 148 as notice under section 148A, citing the Hon'ble Supreme Court judgement in the case of UOI vs Ashish Agarwal.

6. The Appellate Commissioner erred in confirming the issue of the notice u/s 148, by the Assessing Officer, as the time limit prescribed u/s. 149 for issue of notice for income escaping below Rupees Fifty Lakhs, is only three years.

7. The Appellate Commissioner erred in rejecting the claim of exemption of long-term capital gains u/s 10(38) of Rs.34,25,064/-.

“6. The Impugned order of assessment, appellant's submissions and supporting documentary furnished have been perused and the Grounds of Appeal are adjudicated as under: 6.1. There are thirteen (13) grounds of appeal raised by the appellant. The appellant has contended vide ground No. 1 and 2 that though the notice u/s. 148 was issued on 22/04/2021, which is after 01/04/2021, when an altogether new regime of taxation related to "reopening of assessment", had come into force, in the form of section 148A and sub-sections thereof. Further the appellant contended that the earlier notice u/s. 148 cannot be deemed notice for show cause u/s. 148A(b) since she had not filed any writ petition before the Hon'ble Supreme Court. The allegation of belated issue of notice u/s.148 as raised in the appellant vide the Ground Nos. 1 and 2 of the appeal needs to be deliberated. In the said submission, it is contended that notice u/s.148 of the IT Act, 1961 dated 22-04-2021 was issued which is beyond the stipulated period and therefore barred by limitation. The contention of the appellant in this regard is not acceptable as the AO has issued and served the notice u/s. 148 initially on 18/05/2021 and subsequently in compliance to the Hon'ble Supreme Court decision in the case of UOI Vs. Ashish Agarwal in civil appeal No. 3005/2022 dated 04/05/2022, the notice u/s. 148 was issued on 29/07/2022 which is within the due date prescribed as per the Act. The appellant's claim that earlier 148 cannot be the deemed show cause in her case since she has not filed the writ petition before Hon'ble Court, cannot be accepted since the court has Hon'ble court has held that "as per power under Article 142 of Constitution this order would be applicable PAN INDIA on all judgments and orders passed by different High Courts where similar notices issued after 1-4-2021 under section 148 are set aside". In the appellant's case, the notice was issued after 01/04/2021 i.e. on 18/05/2021. As such, it is held that the above referred decision is applicable in the present case also. Further, the appellant's attempt to hide behind mere technicalities without having any merits of the issue cannot be entertained. Therefore, it is held that the notice issued u/s.148 is well within the prescribed time limits and calls for no interference. This argument of the appellant is therefore rejected and Ground Nos. 1 & 2 of the appeal are hereby dismissed.

7. The Ground No. 3 raised by the appellant is that the notice u/s. 148 was issued to the appellant on 22/0403/2021 which was after 3 years from the end of assessment year. Also, the appellant has contended that the notice can be issued beyond the 3 years only if the income escaped is more than 50lakhs, which is not in the case of her. In this regard, the appellant has contended that since the notice was issued after statutory limitation as per the provisions of the act, the assessment order passed by the AO is illegal and against the law and facts of the case. As such, requested the appellate authority to quash the assessment order passed by the AO.

7.1. The appellant has relied upon the following case laws in support of her claim: i). Tata Communications transformation services limited Vs. ACIT (Bombay High Court)-WP.(C) NO 334/2021 ii). Mon Mohan Kohli Vs. ACIT & Anr WP. (c) 6176/2021 - Delhi High Court iii). Ashok Kumar Agarwal Vs. Union of India Allahabad High Court Writ tax no 524/2021

Iv). Sudesh Taneja Vs. ITO WP. (C) 969/2022-Rajasthan High Court 7.2. In the said submission, it is contended that notice u/s.148 of the IT Act, 1961 dated 22-04-2022 was beyond the stipulated period of three year and therefore barred by limitation. In this regard, it is seen that Central Board of Direct Taxes in exercise of the powers conferred by sub-section (1) of section 3 of the Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance, 2020 (2 of 2020) vide Notification dated 24-06-2020 has extended the time limit for issuing notice u/s.148 for the A.Y. 2016-17 to 31-03-2021. Further, the CBDT vide Notification No. 20/2021, dated 31-3-2021 and Notification No. 38/2021, dated 27-4-2021 has extended time limit from 31/03/2021 to 30/04/2021 and further to 30/06/2021 respectively. This has also been upheld in a catena of decisions. Therefore, it is held that the notice issued u/s.148 on 31-03-2021 is well within the prescribed time limits and calls for no interference. Further, the case laws relied upon by the appellant have been perused and it is seen that all the decisions have implied that issue of notice u/s. 148 of the Act has to be passed as per the provisions of the section 148A. In this case, the same has been complied by the AO in compliance to Hon'ble Apex Court's decision in the case of Ashish Agarwal Vs. UOI. In view of the above discussion, this argument of the appellant is therefore rejected and Ground No. 3 is hereby dismissed.

8. The ground No. 4 raised by the appellant is that her address was at the Hyderabad since long time. However, the notice u/s. 148 was received from Ward-1, Nanded. In view of the same, the appellant has claimed that the notices issued are invalid and without jurisdiction. During the appellate proceedings, appellant has not put forth any evidences before the appellate authority substantiating her claim. On perusal of the assessment order, it is seen that the AO has categorically stated he had issued notices which were served on the appellant. The appellant also responded to all the notices issued. It is held that it was appellant's responsibility to communicate the AO regarding change of address. The appellant had the option to request for transferring the PAN jurisdictional to the AO at Hyderabad. The appellant has apparently not informed the AO regarding the change of address (if any). The appellant also has not placed any records evidencing requesting for transfer of PAN jurisdiction. In the absence of any submission in support of her contentions raised in the grounds, the appellant's claim cannot be ascertained. Hence, the Ground No. 4 raised by the appellant is dismissed.”

8. So far as the legal issue raised in Ground No.9 that reopening has been made by ld. AO based on the report of Investigation Wing without further enquiry or verifying the credentials, I fail to find any merit because the Investigation Wing is also a part and parcel of the income-tax department and the object of the wing is to collect the information and carry necessary investigation and such details thereafter are supplied to the concerned Jurisdictional Assessing Officer for doing the relevant exercise provided under the Act. Based on the information from the Investigation Wing and also observing that the assessee has entered into a transaction of claiming exemption for long term capital gain u/s.10(38) of the Act from sale of equity shares of alleged penny stock company, ld. AO has rightly issued the notice u/s.148 of the Act and for the remaining exercise the assessee has necessary opportunity to make submissions during the course of re-assessment proceedings. It is also an admitted fact that merely issuing notices u/s.148 of the Act cannot lead to addition in the hands of assessee. In many cases, even after issuance of notice u/s.148 of the Act, re-assessment proceedings are completed without making any addition because the assessee is able to satisfy the AO. Under these given facts and circumstances, I am of the considered view that the assessee fails on the legal issue raised in Ground No.9 of this appeal.

9. So far as the grounds raised on merit against the rejection of claim of exemption of Rs.34,25,064/-, I find that ld.CIT(A) has examined the facts of the case and has held as under :

“10.2 The submissions made by the appellant and case laws relied upon by the appellant have been perused, but the same have not been found tenable and acceptable as the appellant failed to furnish contemporaneous record establishing the exemption claimed u/s.10(38) by the appellant in the return of income. On perusal of the impugned assessment order, I find that the Ld. AO has elaborately discussed the matter in the Assessment Order. When an information is received from the Investigation Wing of the department regarding the beneficiaries of bogus LTCG transactions through a share broker, It cannot be said that the information is not correct and there is no need to make further enquiry on the basis of the evidence like bank statement, broker's ledgers etc. filed by the Appellant. The Ld. AO after examining the details furnished by the investigation wing, has found that income chargeable to tax has escaped assessment. It is noticed that the transactions in these shares as per the information in possession of the department have been claimed to have been carried out by the appellant in F.Y. 2015-16, with the share sub-broker M/s Basan Equity Broking Ltd. The appellant has made transactions with M/s Achal Investments Ltd, which was providing fictitious long term capital gain to multiple entities and the financials clearly show that the company is a shell company. It was noticed that the appellant is one such beneficiary who received fictitious LTCG during the year under appeal. The Appellant did not furnish any explanation to such findings as mentioned in the impugned Assessment.

10.3. Regarding the exemption claimed in the return of income, the Appellant has claimed that there was profit on transactions through the said share-broker and claimed that she had invested in the alleged shares based on tip from the friend and based on the financials reported by the company. The Appellant has not explained regarding what kind of information she received from her friend to ascertain her claim. Moreover, at the time of investment. M/s Achal Investments Ltd, financials were not encouraging as mentioned in page 10 of the impugned assessment order which does not require reproduction. It is noticed that enquiries caused has revealed information regarding the manipulation of transactions in shares and claiming fictitious LTCG thereon. The appellant has failed to furnish satisfactory explanations regarding how such huge gains were earned with negligible investment. The transactions undertaken by the appellant are also matching with the information in possession of the AO.

10.4. In the instant case, on perusal of the Impugned assessment order, it is observed that the appellant has not discharged the primary onus of proving the genuineness of the LTCG from sale of shares to the satisfaction of the AO, even after affording opportunities to prove the same. Thus, the genuineness of the LTCG claimed as exemption remains unproved by the appellant. The Assessing Officer in his well-reasoned order has clearly and in unequivocal terms brought out the appellant's arrangement of arriving at fictitious LTCG through stock manipulation which is just a façade for reducing the tax liability which is payable to the government by claiming bogus exemptions. The appellant has never proved that the exemption as claimed by it in the ROI is genuine and no such manipulation as alleged by the AO has been done. In the impugned assessment order, it has been established beyond doubt that there are manipulative practices done by the sub brokers with M/s. Achal Investments Ltd. The resultant benefits which accrue from out of such manipulative practices are definitely to be treated as tainted. In this regard, it is held that the order of the AO is exhaustive and self-explanatory as to how the appellant is not eligible for claiming the benefit of exemption as the and the appellate authority concur with the findings of the AO since no new evidences were furnished by the appellant. The Appellant has failed to prove that there was no manipulation in the whole episode and whatever exemption claimed are genuine. This has not been proved or established by the appellant. Therefore, the Assessing Officer was very well justified in coming to a conclusion that the explanation offered by the appellant was not up to his satisfaction. The AO has stated that the evidences consists of circumstantial evidences too and the appellant has failed the test of human probabilities of gaining huge amount with negligible investments. Thus, the appellant having not proved the genuineness of the claim, fails the test. In such scenario, the Assessing Officer has to adopt an inferential process which is reasonable and prudent.

10.4.1. In view of the above, the AO has held that it is crystal clear that appellant has nothing to say in this matter and accepted the transaction and also accepted the bogus gain received by her. The AO has held that the apparent is not real and the evidence furnished by the appellant does not substantiate the alleged fictitious gain claimed as exemption. The AO has made the addition u/s. 69A by relying on the judicial decisions of the Hon'ble Supreme Court in CIT Vs. Durga Prasad More [1971] 82 ITR 540, Sumati Dayal Vs. CIT (214 ITR 801) (SC), Chuhar Mal Vs. CIT (1988) 172 ITR 250 and McDowell Vs. CTO. The case laws relied upon by the appellant cannot be applied in the present case as the appellant has failed to prove the test of human probabilities and failed to establish the circumstantial evidence to prove the transaction is not on manipulative basis.

10.5. Further, it is seen that SEBI has levied a penalty on M/s. Achal Investments vide order dated 02/09/2021 for its activities of defrauding the shareholders and diverting and misutilising the proceed received from the preferential issue of shares also it is seen that M/s. Achal Investments was restrained from the accessing the securities market and from buying, selling are dealing in securities either directly or indirectly for a period of five months. From the above, it can be seen that the company has involved in unfair trade practices. In this regard, the reliance is placed on Hon'ble Apex Court judgment in the case of Rakhi Trading Pvt Ltd., in which it was discussed the modus operandi of transactions of this genre and had passed a speaking order laying out threadbare the intent behind such transactions. The relevant portions of the said order which belies the stated intention of the assessee are reproduced for convenience and emphasis:

"Considering the reversal transactions, quantity, price and time and sale, parties being persistent in number of such trade transactions with huge price variations, it will be too naive to hold that the transactions are through screen-based trading and hence anonymous. Such conclusion would be over-looking the prior meeting of minds involving synchronization of buy and sell order and not negotiated deals as per the board's circular. The impugned transactions are manipulative/deceptive device to create a desired loss and/or profit. Such synchronized trading is violative of transparent norms of trading in securities."

10.5.1. Further, the reliance is placed on the judgement of Hon. High Court of Calcutta in the case of Pr. Commissioner of Income-tax Vs. Swati Bajaj [2022] 139 taxmann.com 352 (Calcutta) wherein the Hon'ble High Court has held as under: -

"Where assessee earned LTCG on sale of shares and AO denied said claim and made additions under section 68 on ground that assessee invested in shares of penny stock companies which provided bogus LTCG, sirice assessee failed to establish genuineness of rise of price of shares within a short period of time that too when general market trend was recessive, addition made under section 68 were justified."

10.5.2. Further, the reliance is placed on the judgement of Hon. ITAT KOLKATA BENCH 'SMC' in [2024] 159 taxmann.com 1525 (Kolkata Trib.) in the case of Brajesh Narnolia Vs. ITO wherein the Hon'ble tribunal has held as under: -

"Where AO disallowed claim of exemption under section 10(38) made by assessee on LTCG earned on sale of shares of a company for reason that High Court in a case held that said company in whose shares assessee made investment was a paper company, since very credential of this company in question was unreliable, a different view could not be taken particularly qua one company. which was part of list of 84 companies, where investments were held by High Court as bogus, and further, assessee's investment could not become genuine merely because he earned a lesser amount of profit, thus, impugned order of AO was to be upheld."

10.6. It is held that the facts of the present are squarely covered by the above mentioned case laws and in view of the foregoing discussion, it is opined that there is no need to interfere with the addition made by disallowing the appellant's claim of exemption in the assessment order. In view of the above legal position and the fact that the appellant has undertaken transactions and as appellant has involved in transactions of bogus LTCG, the entire exemption have been rightly added to the total income of the appellant by the AO. The assessment order passed by the AO doesn't require any interference in this regard.

10.7. The appellant also raised objection to the addition made by the AO of Rs. 93,250/- being unexplained expenditure u/s. 69C of the Act by determining the expense/commission paid the rate of 1% on Rs. 34,42,800/-. It is seen from the impugned assessment order that the AO has made an addition u/s. 69C by stating that it also appears that appellant has paid expense commission at the rate of 1% on the above transaction which must be disallowed. The appellant vide grounds of appeal has submitted that the addition made by the AO suffers from an 'Infirmity' as no such expense had either been claimed or incurred by the appellant, and no such payment had been made by the appellant.

10.7.1. From the impugned assessment erder, it is observed that the Assessing Officer has not discussed anything about the genuineness of the commission paid and why the addition has been made even though no such expense has been claimed by then appellant in the P&L Account. The AO has also not cross verified the Books of accounts. Hence, except for the suspicion of the Assessing Officer regarding the commission paid, nothing has been brought on record by the Assessing Officer to substantiate such suspicion. The AO has not made any findings in the assessment proceedings substantiating the addition made u/s. 69C of the Act, Therefore, if the appellant has not claimed such expense, the addition on the ground cannot be allowed without bringing some tangible material or facts on record. Accordingly, the addition made by the Assessing Officer on account of unexplained expenditure u/s. 69C of Rs. 34,428/- is not justified, hence the same is deleted. 10.8. In view of the discussion supra in paras 10 to 10.7.1, the Ground No. 6, 7, 8, 9 and 10 raised by the appellant are also partly allowed.”

10. Now examining the facts of the instant case as observed by the AO along with the detailed finding of ld.CIT(A), I observe that the assessee has purchased the Equity shares of M/s. Achal Investments Ltd. through offline mode and that too in cash. These equity shares were purchased on 12.11.2012 but the company got listed on 07.08.2014 and that too at the price of approximately Rs.490/- per share as against the face value of Rs.10/-. Financials of M/s.Achal Investments Ltd. are not that healthy to justify the price of Rs.490/- per share. Now these facts in itself creates suspicion about the genuineness of the transaction because the assessee has not purchased the equity shares through banking channel from the recognised stock exchange. It is a case of off-market purchase and that too in cash. It is also observed that the Security Exchange Board of India has levied the penalty on M/s. Achal Investments Ltd. for its activities of defrauding the shareholders and diverting and mis-utilising the proceeds received from the preferential issue of shares. Before me, no submissions have been filed by the assessee eventhough various opportunities has been granted so as to rebut the finding of ld.CIT(A). Under these given facts and circumstances and also considering the ration laid down by the Hon’ble High Court of Calcutta in the case of PCIT Vs. Swati Bajaj (supra), I fail to find any inconsistency in the well reasoned finding of ld.CIT(A) holding the alleged transaction of long term capital gain as bogus. Thus, the grounds of appeal No.7 and 8 raised on merits of the case are also dismissed.

Order pronounced on this 14th day of July, 2025.