ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 12, PUNE vs. VARUN JAIN, PUNE

2. Ld.AR for the Assessee submitted that Assessee has filed Return of Income for A.Y.2018-19 on 27.09.2018. Assessee’s case was selected for scrutiny and an assessment order under section 143(3) was passed on 15.01.2021 accepting the Returned Income of the Assessee. Ld.AR invited our attention to page no.67 to 69 of the paper book which was copy of the order u/s.143(3) of the Act, dated 15.01.2021. Ld.AR submitted that assessee’s case was selected for scrutiny for Capital Gain Deductions verification. Ld.AR submitted that during the scrutiny proceedings, Assessee filed all the necessary details and Assessing Officer after verifying details, accepted assessee’s Returned Income without making any addition.

C.O.No.14/PUN/2025 [A] & [R] However, subsequently, a notice u/s.148A was issued which is at page no.60 of the paper book. The order u/s.148A(d) was passed on 12.04.2022. Copy of the same order is at page no.83 to 90 of the paper book. Ld.AR took us through the reasons for reopening which are at page no.75 to 77 of the paper book. The relevant paragraph is as under : “02. Brief details of the information collected/received by the AO:

In this case, the information is received through INSIGHT Portal under High Risk CRIU/VRU Information as per the Risk Management parameters set by the Board. The information is regarding fictitious loss in equity/derivative trading of Rs. 55937863/-. The primary source name is JM Financial Asset manager Itd. having PAN. AAACJ2578F. The source PAN name is JM Financial Asset Management Ltd. 2.1 As per information received a survey action a survey action u/s.133A of the I.T. Act, 1961 in the case of M/s. JM Financial Asset Management Limited (JM Financial"), Mumbai was conducted by the IT Investigation Unit Mumbai. During the course of survey action u/s 133A of the IT Act, it was seen that JM Financial had manipulated accounting methodology so as to artficialy infate the distributable surplus. In the process the SEBI guidelines by flouted by the JM mutual fund by classifying a portion of capital as distributable surplus and thereafter, artificial pay out of the investor in the form of dividend. The investors, in order to reduce their tax liability entered into these sham transactions and received dividend and Short-Term Capital Loss. Shri Varun jain is one of the beneficiaries who claimed fictitious losses of Rs.5,59,37,863/- in Equity Derivative Trading

C.O.No.14/PUN/2025 [A] & [R] Verification by the AO:

3. On verification, it is noted that the assessee has declared total income of Rs.8,78,83,480/- and has shown exempt income on units u/s 10(35) for Rs.5.59,37,863

4. Result of Inquiry u/s 148A(a):- In view of the above facts, the inquiry was conducted with the assessee/third parities as per section 148A(a) with prior approval of competent authority. The assessee has been issued letter dtd.19.03.2022 U/s 148A(a) seeking certain details regarding the subject transaction.

4.1 in response to the letter issued, the assessee has submitted that during the year he had purchased mutual fund through JM Financial Asset management Ltd. under the scheme "JM Equity Annual dividend option of Rs. 13,80,00,000/- on which the assessee received dividend income of Rs. 5,59,37,863/- which has been claimed as exempt u/s 10(34) of the IT Act. The whole of the transaction was carried through proper banking channel. It is further stated that as and when a mutual fund company issue dividend they have to take approval from the SEBI. It is presumed that JM financial Asset management Ltd. has taken the approval from SEBI and followed all the rules and regulations relating to issuance of Dividend. The assessee has also enclosed his bank account of HDFC showing Investment with JM Balance Fund for Rs.13.80.00.000 on 21.03.2018.”

3. The Hon'ble Madras High Court in the case of Spencer and Company Limited v/s The Assistant Commissioner of Income Tax [2024] 169 taxmann.com 221 (Madras).

4. The Hon'ble ITAT Mumbai in case of Aditya Birla Private Equity Trust Vs. National Faceless Appeal Centre (ITA No.91/MUM/2024 dated 29.02.2024)

C.O.No.14/PUN/2025 [A] & [R]

7. The Hon'ble Supreme Court in case of the Kishnichand Chellaram Vs. CIT [1962] 46 ITR 640 (SC).

8. The Hon'ble ITAT Mumbai in case of Income Tax Officer v/s Dibya trading CO. LLP (ITA No 4330/MUM/2024 dated 02.01.2025)

Submission of ld.DR : 5. Ld.DR for the Revenue relied on the order of Assessing Officer and ld.CIT(A).Ld.DR submitted that Assessee had purchased mutual fund through JM Financial Asset Management Ltd., under the scheme “JM Equity Hybrid Fund Annual Dividend Option” of Rs.13,80,00,000/-, on which the assessee had received dividend income of Rs.5,59,37,863/- which has been claimed as exempt u/s.10(35) of I.T.Act in his Return of Income for the year under consideration. There was a survey action in the case of JM Financials wherein, statement of fund manager, institutional sales head, compliance head was recorded. Ld.DR invited our attention to page no.10 of the Assessment Order which discusses the statements. Ld.DR submitted that JM Financial by deploying unfair means has rigged up the Distributable Surplus. The Assessee in order to reduce his tax liability, entered in to the sham transaction.

C.O.No.14/PUN/2025 [A] & [R] Findings & Analysis : 6. We have heard both the parties and perused the records. In this case, Assessee had purchased mutual fund through JM Financial Asset Management Ltd., under the scheme “JM Equity Hybrid Fund Annual Dividend Option” of Rs.13,80,00,000/- on which the assessee had received dividend income of Rs.5,59,37,863/- which has been claimed as exempt u/s.10(35) of the Income Tax Act. Assessee submitted receipt of dividend for his claim. Assessee also submitted copy of confirmations from JM Financial Asset Management Ltd., and his bank statement. Assessing Officer has noted that Assessee invested an amount of Rs.13,80,00,000/- in JM Equity Hybrid Fund Annual Dividend Option on 22.03.2018 and on the same date, Assessee received dividend of Rs.5,59,37,863/-. During the survey under section 133A of the Act, in the case of JM Financial Asset Management Limited, the Deputy Director of Income Tax(Investigation), noted that JM Financial had manipulated accounting methodology, so as to artificially inflate the Distributable Surplus. The Dy.DIT opined that, they have violated SEBI Guidelines, entire transaction is sham. Accordingly, Assessing Officer made an addition of Rs.5,59,37,863/-.

C.O.No.14/PUN/2025 [A] & [R] 6.1 Aggrieved by the addition, assessee filed appeal before the ld.CIT(A). The ld.CIT(A) deleted the addition.

6.2 Aggrieved by the order of ld.CIT(A), Revenue filed appeal before this Tribunal and Assessee filed Cross Objection Appeal.

6.3 The relevant paragraphs of the ld.CIT(A)’s order are reproduced as under : “6.7 On carefully considering the fact and circumstances of the instant case and also the judicial pronouncements as discussed above, it is seen that the Hon'ble ITAT has held that the AO may report the matter of violations, if any, to the SEBI and if finally, SEBI does not find any default, then the view of the Assessing Officer that there is violation cannot survive. Thus, it is the SEBI, which has final say to determine about the violation of the conditions, as it is the authority competent to deal with the same.

6.8 In the instant case, it is seen that the AO did not have any specific information indicating that the appellant was in a position to directly or indirectly influence the decision making process of declaring dividend by J.M.Financial. The AO has referred to SEBI circular No. SEBI/IMD/CIR No 18/198647/2010 dated March 15, 2010 in the assessment order passed u/s 147 r.w.s 144B of the act. In response to the same, appellant rebutted in the submission that M/s. J M Financial Asset Management Limited is a listed mutual fund. Since JM Financial Asset Management Ltd is a listed entity and governed by the SEBI. Any violation of rules by the mutual fund comes under the purview of the SEBI to investigate the matter and take necessary action. It is contended that in the case under consideration, there is no material on record showing that any such action has been initiated by the SEBI and no such penalty has been imposed by the SEBI on JM Financial Asset Management Ltd. Further, with respect to dividend distribution also it

C.O.No.14/PUN/2025 [A] & [R] is contended that no such adverse action has been taken in the case of said mutual fund by the SEBI. Also, the said scheme is still running by the JM Financial Asset Management Ltd. Further, with regard to the contention of the Ld. AO that during the course of survey, the Officer concerned of the JM Financial Asset Management Ltd has accepted the manipulation in the account to declare the dividend, however the appellant has furnished the confirmation issued by the JM Financial Asset Management Ltd dated 21/06/2023 stating that it has not violated any laws and provisions of the Act including SEBI Regulations. Further, in this regard, the Hon'ble Bombay High Court(supra) has given finding that "These are allegations against JM Financial and do not implicate petitioner in any manner. There is nothing to indicate that petitioner had participated knowingly in a sham transaction to reduce his tax liability". Furthermore, the Hon'ble Supreme Court (supra) has held that "payment made as dividend by a company to its shareholders does not lose that character merely because it is paid out of capital Therefore, I find merit in the contentions raised by the appellant challenging the addition made by the AO.

6.9 Therefore, after carefully considering the submissions filed by the appellant and also considering the facts & circumstances of the case and respectfully following the Judgement of Hon'ble Supreme Court in case of Kishinchand Chellaram vs Commissioner Of Income-Tax, Central (supra) and the Hon'ble Jurisdictional Bombay High Court vide Writ Petition(L) No. 37211/2022 Order dt. 08-04-2024 and decision of various ITAT benches as discussed above, I am of the considered opinion that the appellant has claimed the exempt income of Rs.5,59,37,863/- as per the provision of law and the said claim of the appellant is within the ambit of section 10(35) r.w.s. 10(23D) of the Act and therefore, the action of the AO to disallow the claim of exemption u/s 10(35) of the Act cannot be sustained and the AO is directed to delete the addition of Rs.5,59,37,863/- made in the assessment order. Hence, Ground No.4 raised by the appellant is allowed.

Now coming to the Ground no. 1, 2 and 3 raised by the appellant, it is seen that the appellant has challenged the validity of reopening proceeding. It is contended that the scrutiny assessment u/s. 143(3) was already completed and therefore, consequent action of reopening without having any corroborative evidence to allege the wrong doing by the appellant tantamount to change of opinion which is fuelled by C.O.No.14/PUN/2025 [A] & [R] conjectures/ surmises on part of the AO, which is bad-in-law. As I have already decided the appeal on merit in ground no. 4 above and the relief has already been allowed, these grounds of appeal are rendered purely academic in nature requiring no adjudication.

In Ground no. 5 the appellant has challenged the action of the AO in initiating penalty proceeding u/s. 270A of the Act for under reporting of income. As the penalty is only initiated and not levied by the AO and thus this ground of appeal is premature in nature and accordingly, Ground of appeal no.5 is dismissed.” 6.4 During the assessment proceedings, the Assessee in its written submission filed a letter from Authorised Personnel of the JM Financial confirming the dividend. The relevant paragraph as appearing at page no.24 of the assessment order is reproduced here as under : “We confirm that there are no irregularities committed by JM Financial mutual fund in the dividend declaration process and all the dividends declared by JM Financial Mutual Fund in all there schemes were in line with the extant accounting standards, in compliance with the SEBI regulations, pertaining to dividend declaration and payment.”

6.5 Assessee also submitted that JM Financial had duly paid Security Transaction Tax(STT).

6.6 The entire letter of JM Financial dated 21.06.2023 is reproduced here as under :

C.O.No.14/PUN/2025 [A] & [R]

C.O.No.14/PUN/2025 [A] & [R]

C.O.No.14/PUN/2025 [A] & [R] shifts to the Assessing Officer. In this case, Assessing Officer has not rebutted the contents mentioned in the letter.

7.1 The similar issue came up for consideration before the Hon’ble Jurisdictional High Court in the case of Karan Maheshwari Vs. ACIT(supra). In the case of Karan Maheshwari, reopening notice was issued due to the information received from Deputy Direction of Income Tax(Investigation)-Mumbai regarding JM Financial Asset Management Limited, wherein survey was conducted. In the case of Karan Maheshwari(supra), it was alleged that JM Financial had manipulated accounting methodology to inflate the Distributable Surplus. We have noted that the reasons for reopening in the case of Karan Maheshwari and Assessee are almost the same. The Hon’ble Bombay High Court held as under in para 19 and 20 of the said order : “19 In the notice issued under Section 148A(b) of the Act, the Assessing Officer alleges that JM Financial had manipulated accounting methodology so as to artificially inflate the distributable surplus and the investors, in order to reduce their tax liability, entered into these sham transactions and received dividend and short term capital loss. These are allegations against JM Financial and do not implicate petitioner in any manner. There is nothing to indicate that petitioner had participated knowingly in a sham transaction to reduce his tax liability or to earn dividend or book short term capital loss. Infact in the notice, in the first paragraph, it says "....... In the course of survey, it was found that JM Balanced Fund-Annual Dividend Option Regular

C.O.No.14/PUN/2025 [A] & [R] Scheme (the Plan) of JM Financial had manipulated accounting methodology so as to artificially inflate the distributable surplus In the next paragraph, it says ". ... investors, in order to reduce their tax liability, entered into these sham transactions and received dividend and short term capital loss who claimed fictitious short term capital loss The assessee is one the persons In the next paragraph, it says the assessee is one of the beneficiaries, who have received dividend and claimed fictitious losses in equity/derivative trading in JM Equity Hybrid Fund-Quarterly Dividend of JM Financial Asset Management Limited, to the tune of Rs.3,41,12,651/-during the FY. 2015-16 relevant to the A.Y. 2016- 17.......".

Therefore, the Assessing Officer is also not clear whether the assessee had booked loss or claimed dividend in the JM Balanced Fund Annual Dividend Option Regular scheme or JM Equity Hybrid Fund-Quarterly Dividend. This also indicates non application of mind by the Assessing Officer.

20 For all these reasons above, notice dated 20th August 2022 under Section 148A(b) of the Income Tax Act, 1961 (the Act), order dated 30th September 2022 under Section 148A(d) of the Act and notices dated 30th September 2022 under Section 148 of the Act are hereby quashed and set aside.”

C.O.No.14/PUN/2025 [A] & [R]

C.O.No.14/PUN/2025 [A] & [R] in law. Accordingly, the AO is directed to delete the impugned addition.