DEPUTY COMMISSIONER OF INCOME -TAX CENTRAL CIRCLE-1(1), AHMEDABAD, AHMEDABAD, GUJARAT vs. GIRISHKUMAR AMRATLAL BHANDARI HUF, HIMATNAGAR, GUJARAT

The Revenue has raised the following common grounds of appeal (extracted from ITA No.977/Ahd/2025): 1) “In the facts and on the circumstances of the case and in law, the ld.CIT(A) has erred in deleting the addition of Rs.28,68,849/- [ in the case of Girishkumar Amratlal Bhandari, HUF for AY 2018-19], Rs.66,73,078/- [ in the case of Bhaveshkumar Girishbhai Bhandari for AY 2016-17] and Rs.14,63,004/- [ in the case of Bhaveshkumar Girishbhai Bhandari for AY 2018-19] u/s.68 of the Act being bogus LTCG incurred due to share transaction in penny scrip without considering the incriminating documents found & seized during search and without appreciating the meticulous findings of the AO”. 2)“The Revenue craves leave to add/alter/amend and/or substitute any or all of the grounds of appeal.”

The brief facts of the case are that the assessee, Shri Bhaveshkumar Girishbhai Bhandari, filed his original return of income for the Assessment Year (A.Y.) 2018-19 on 08.02.2019, declaring total income of Rs.35,95,080/-, which was initially processed under section 143(1) of the Act accepting the returned income. Subsequently, the case was selected for scrutiny assessment under CASS, and assessment was completed under section 143(3) read with section 144B of the Act on 16.09.2021, determining total income at Rs.5,48,37,350/-. This included an addition of Rs. 4,86,42,214/- under section 68 of the Act for unexplained cash credits and an addition of Rs.21,36,579/- for disallowance of certain expenses under section 37(1) of the Act. Later, a report from the Investigation Wing, Ahmedabad was received by the Assessing Officer (AO), which contained information regarding accommodation entries and manipulation of penny stock transactions allegedly carried out by the Kushal Group of Companies. Based on this information, the AO noted that the assessee was one of the beneficiaries of such accommodation entries in the shares of M/s. Kushal Tradelink Ltd., identified as a “penny stock" company. Relying upon this report, the AO initiated re-assessment proceedings under section 147 of the Act In response, the assessee filed a return of income on 11.04.2022, again declaring total income of Rs. 35,95,080/-. During the reassessment proceedings, the Assessing Officer analyzed the information emanating from search and survey operations conducted on 05.02.2019 under section 132 of the Act, in the Kushal Group cases. The search revealed incriminating evidence such as digital data, loose papers, and electronic devices indicating that the Kushal Group was engaged in price rigging and providing bogus accommodation entries in the form of Long-Term Capital Gains (LTCG), Short-Term Capital Gains (STCG), and losses to various beneficiaries. The seized digital data contained structured excel sheets and tally backups reflecting unaccounted cash transactions, which, according to the AO, established that Kushal Group entities were systematically manipulating share prices to provide tax-free capital gains to beneficiaries in exchange for cash payments. On verification of the trading data of Kushal Tradelink Ltd., the AO observed that the share price had artificially risen from Rs.2 on 03.09.2015 to Rs.469 on 13.02.2017, an abnormal increase of over 23,000% without any corresponding improvement in the company's financials. The AO noted that the company's turnover and profitability during this period did not justify such a meteoric rise, and that the pattern of price movements did not correlate with general market indices like the BSE Sensex. Further, investigations showed that certain individuals and entry operators, including Shri Ashish Panalal Shah, were involved in synchronized trading and price manipulation in the scrip of Kushal Tradelink Ltd. to generate fictitious LTCG and STCL for various beneficiaries, including the assessee. The Assessing Officer recorded Statements under sections 132(4) and 131 of the Act from key persons such as Shri Ashish Panalal Shah, Shri Shaileshbhai Jayantilal Shah, and Shri Narendrabhai Shivbhai Parmar which revealed that the demat accounts used for share trading were not genuinely owned or operated by these individuals, but were instead controlled by Ashish Panalal Shah, who admitted to manipulating share prices and providing bogus LTCG accommodation entries in exchange for commission. The AO held that the scrip of Kushal Tradelink Ltd. was artificially manipulated and that the assessee's gains were part of a larger racket involving cash payments to entry operators for generating exempt LTCG through colorable transactions. The AO observed that the assessee had sold 13,000 shares of Kushal Tradelink Ltd., resulting in a Long-Term Capital Gain of Rs.14,63,004/-, which was claimed as exempt under section 10(38) of the Act. The AO asked the assessee to explain why the LTCG should not be treated as bogus. In response, the assessee filed a reply dated 13.03.2023 and subsequently another reply on 16.03.2023, contending that the notice was short-timed and that he had already furnished all relevant documents such as purchase bills, demat account statements, and contract notes. The AO, however, rejected these submissions, stating that the contentions were repetitive and that the assessee had been provided with all relevant information earlier. In the assessment order, the AO held that the assessee's explanation was not acceptable, as the evidence gathered during the search clearly showed that the Kushal Group was engaged in providing bogus LTCG entries through manipulated share trades. The AO held that the assessee's gains from Kushal Tradelink Ltd. were not genuine and constituted unexplained credits within the meaning of section 68 of the Act. The Assessing Officer relied upon various judicial precedents, including Suman Poddar v. ITO [2019] 112 taxmann.com 330 (SC), CIT v. Durga Prasad More [1971] 82 ITR 540 (SC), Sumati Dayal v. CIT [1995] 214 ITR 801 (SC), and the principle of human probability, the AO held that the transactions were part of a colorable device to convert unaccounted income into tax-free gains. The AO held that despite receiving payments by cheque and executing trades through a recognized broker, the overall pattern of transactions, abnormal profits, lack of financial strength of Kushal Tradelink Ltd., and its connection with known operators clearly established that the transactions were pre-arranged and fictitious. Accordingly, the AO treated the amount of Rs. 14,80,500/- as unexplained income under section 68 of the Act, taxed the same under section_115BBE, and initiated penalty proceedings under section 271AAC. The AO determined the total assessed income at Rs. 5,63,17,850/- and issued demand and penalty notices accordingly.

Aggrieved, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals) and contended that the reassessment proceedings and the addition made therein were illegal and unsustainable in law. The assessee argued that there was gross violation of the principles of natural justice, as the AO had not supplied the material and statements relied upon nor afforded any opportunity for cross-examination, in defiance of the ratio laid down by the Hon'ble Supreme Court in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19 (SC). The assessee further submitted that all share transactions were carried out through recognized stock exchange platforms and duly supported by contract notes, demat statements, and bank transactions. It was contended that the AO had accepted the short-term capital gain on sale of the same scrip of Kushal Tradelink Ltd. in the preceding year, and therefore, it was contradictory to treat the long-term gain from the same scrip as bogus. The assessee relied on judicial precedents such as CIT v. Rohini Builders [2002] 256 ITR 360 (Guj), Dharmdev Finance (P.) Ltd. v. CIT [2014] 43 taxmann.com 395 (Guj), and PCIT v. Genuine Finance Pvt. Ltd. [Tax Appeal No. 222 of 2023 (Guj)], to argue that once the identity, genuineness, and creditworthiness were established, the burden stood discharged and no addition under section 68 was warranted. The assessee also referred to the order of the CIT(A), NFAC in Pranav Mahendrabhai Patel v. ITO (ITA No. NFAC/2016-17/10118737, order dated 12.12.2023), where on identical facts involving the same scrip Kushal Tradelink Ltd., the addition made under section 68 of the Act was deleted. The said order was subsequently affirmed by the ITAT Ahmedabad Bench in ITA No. 182/Ahd/2024, dated 17.12.2024. The assessee also submitted that his name was not included in the SEBI Adjudication Order dated 22.12.2017, which had dealt with manipulation in Kushal Tradelink Ltd. shares, and that his transactions fell outside the period of SEBI's investigation. Thus, there was no material to link him with any alleged price rigging or scam. After considering the assessment records and the submissions of the assessee, the CIT(Appeals) held that the AO had made the addition solely on the basis of generalized findings of the Investigation Wing without any independent verification or corroborative evidence. It was observed that the AO had not brought on record any material to prove that the assessee had paid cash or received accommodation entries in lieu of share transactions. The CIT(Appeals) noted that the assessee had discharged the onus cast upon him under section 68 by producing documentary evidence, including contract notes, demat statements, and bank statements, establishing the identity of the broker, genuineness of the transaction, and creditworthiness. The CIT(Appeals) further noted that the AO had accepted the short-term capital gain from the same scrip and therefore could not adopt a different view in respect of long-term capital gain arising from identical transactions, in view of the principle of consistency. The CIT(Appeals) also relied on the judgment of the Hon'ble Gujarat High Court in PCIT v. Genuine Finance Pvt. Ltd. (Tax Appeal No. 222 of 2023, dated 13.06.2023), wherein it was held that no addition could be sustained merely on the basis of general information or investigation reports without specific evidence showing the assessee's involvement. The CIT(Appeals) held that the AO's action was based on presumptions and conjectures and that the entire reassessment proceedings lacked fairness and application of mind. It was further observed that the SEBI order relied upon by the AO did not implicate either the assessee or his broker, M/s. ASE Capital Market Ltd., in any price manipulation. In light of the evidences produced and judicial precedents cited, the CIT(Appeals) held that the transactions in the scrip of Kushal Tradelink Ltd. were genuine, the exemption claimed under section 10(38) of the Act was allowable, and the addition of Rs.14,80,500/- made under section 68 of the Act was unsustainable. Accordingly, the CIT(Appeals) directed the AO to delete the addition and to accept the genuineness of the share transactions. For A.Y. 2016-17, since the issues and facts were identical, the CIT(Appeals) applied the same reasoning as for A.Y. 2018-19 and directed the deletion of the addition of Rs.66,73,078/- made under section 68, thereby allowing exemption under section 10(38). Consequently, the CIT(Appeals) allowed the appeals for both years, holding that the AO's additions were based on presumptions without evidence, and that the assessee had conclusively proved the genuineness of the transactions through documentary record and compliance with statutory norms.

The Department is in appeal before us against the order passed by CIT(Appeals) dismissing the appeal of the assessee. The Ld. DR placed reliance on the observations made by the Assessing Officer in the assessment order. In response, the ld. counsel for the assessee primarily reiterated the observations made by CIT(Appeals) in the appellate order. The ld. counsel for the assessee also placed reliance on the decision of order of the CIT(A), NFAC in Pranav Mahendrabhai Patel v. ITO (ITA No. NFAC/2016- 17/10118737, order dated 12.12.2023), where on identical facts involving the same scrip Kushal Tradelink Ltd., the addition made under section 68 of the Act was deleted. The said order was subsequently affirmed by the ITAT Ahmedabad Bench in ITA No. 182/Ahd/2024, dated 17.12.2024. 6. We have heard the rival contentions and perused the material on record. The core issue in the present appeal pertains to the genuineness of the Long-Term Capital Gain claimed by the assessee arising from the sale of 13,000 shares of M/s. Kushal Tradelink Ltd., which was claimed as exempt under section 10(38) of the Act. The Assessing Officer, on the basis of the investigation report received from the Investigation Wing, Ahmedabad, as well as incriminating evidences gathered during the search and survey operations conducted in the Kushal Group of cases, found that Kushal Tradelink Ltd. was one of the penny stock companies used for providing accommodation entries of bogus Long-Term Capital Gains and Short-Term Capital Gains. The Assessing Officer observed that the price of the scrip had abnormally risen from Rs.2 to Rs.469 within a short span of time without any corresponding improvement in the financials of the company, which demonstrated that the scrip was artificially rigged.

Despite repeated opportunities, the assessee failed to provide any convincing explanation or rationale as to why he purchased such a large number of shares of a company having no financial fundamentals or business worthiness to justify such astronomical appreciation in value. The assessee's mere reliance on contract notes, demat statements, and bank records does not, by itself, establish the genuineness of the transactions, particularly when the surrounding circumstances clearly indicate that the transactions were pre-arranged and formed part of a larger accommodation entry scheme.

The Hon'ble Calcutta High Court in the case of Principal Commissioner of Income-tax v. Swati Bajaj [2022] 139 taxmann.com 352 (Calcutta)/[2022] 446 ITR 56 (Calcutta) has categorically held that where there is an unreasonable and unexplained rise in the price of shares of penny stock companies within a short period of time, the onus lies upon the assessee to prove the genuineness of such steep rise, as mandated under section 68 of the Act. In the absence of satisfactory explanation, the Assessing Officer is justified in treating the transactions as unexplained cash credits. Similarly, in Principal Commissioner of Income-tax v. Smt. Usha Devi Modi [2023] 151 taxmann.com 119 (Calcutta), the High Court reaffirmed that where the assessee failed to prove the genuineness of the claim of Long-Term Capital Gains and the identity and creditworthiness of the parties involved, particularly when there was a sudden and steep rise in the share prices of penny stock companies, the Assessing Officer was justified in invoking section 68 and denying exemption under section 10(38). Further, the Hon'ble Supreme Court in Suman Poddar v. Income Tax Officer [2019] 112 taxmann.com 330 (SC)/[2020] 268 Taxman 320 (SC) upheld the orders of the lower authorities denying exemption under section 10(38) in respect of similar penny stock transactions and dismissing the assessee's appeal on the ground that such transactions were found to be sham and bogus. The Supreme Court categorically held that the findings of the Tribunal and High Court that the company involved was a penny stock and that the entire transaction was not genuine, were findings of fact not requiring interference. Applying the ratio of the above decisions to the facts of the present case, we find that the assessee has failed to discharge the onus cast upon him under section 68 of the Act. The purchase and sale of shares of Kushal Tradelink Ltd. exhibit all the characteristics of a pre-meditated and artificially structured accommodation entry. The pattern of trading, abnormal price rise without any financial backing, and involvement of known operators such as Shri Ashish Panalal Shah, clearly demonstrate that the transactions were fictitious and designed to convert unaccounted income into tax-free Long- Term Capital Gains.

We also draw support from the decisions of the Coordinate Benches of the Tribunal in Kaushik Chandravadan Parikh v. ACIT [2025] 172 taxmann.com 694 (Mumbai - Trib.), Income-tax Officer v. Neetaben Snehalkumar Patel [2024] 167 taxmann.com 660 (Ahmedabad - Trib.), Shailesh K. Patel HUF v. ITO [2024] 164 taxmann.com 669 (Ahmedabad - Trib.), and Smt. Paramadevi Tekriwal v. ITO [2025] 172 taxmann.com 430 (Ahmedabad - Trib.), wherein on identical facts it was held that the so-called gains from penny stock scrips were not genuine but represented unaccounted money in the guise of exempt capital gains, and additions made by the Assessing Officer under section 68 were accordingly upheld.

The principle laid down by the Hon'ble Supreme Court in Sumati Dayal v. CIT [1995] 214 ITR 801 (SC) that transactions must be tested on the touchstone of human probability and surrounding circumstances rather than on mere paper documentation, squarely applies to the present case. The CIT(Appeals) erred in deleting the addition merely by relying on documentary evidence without appreciating the abnormality and implausibility of the transactions in light of the settled judicial principles.

We note that the assessee contended that the transactions were genuine and duly supported by documentary evidence such as demat statements, contract notes, and bank records. The assessee also placed strong reliance on the order of the ITAT Ahmedabad Bench in ITO v. Deval Pranav Patel (L/H of Late Shri Pranav Mahendrabhai Patel), ITA No. 182/Ahd/2024, dated 17.12.2024, where the Tribunal had deleted a similar addition relating to the same scrip, M/s. Kushal Tradelink Ltd., and held that the transactions were genuine. However, it is well-settled law that judicial precedents are to be applied in the context of their specific facts and circumstances. Each case must rest upon its own factual matrix, and no decision can be treated as a binding precedent for a proposition divorced from the context in which it was rendered. The Hon'ble Supreme Court in Commissioner of Income-tax v. Sun Engineering Works (P.) Ltd. [1992] 64 Taxman 442 (SC)/[1992] 198 ITR 297 (SC)/[1992] 107 CTR 209 (SC) has clearly laid down that "it is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Court, divorced from the context of the question under consideration, and treat it to be the complete law declared by the Court.” The Court further observed that “a judgment must be read as a whole, and the true ratio must be understood in light of the questions that were before the Court; a decision takes its colour from the facts of the case in which it was rendered."

Accordingly, considering the totality of facts, material available on record, and binding judicial precedents discussed above, we are of the considered view that the Assessing Officer was justified in treating the alleged Long-Term Capital Gain arising from the sale of shares of Kushal Tradelink Ltd. as unexplained cash credit under section 68 of the Act and denying exemption under section 10(38). The order of the CIT(Appeals) deleting the addition is therefore unsustainable in law and on facts.

In the result, the appeal of the Department is allowed and the order of the Assessing Officer is restored. Further, we note that the facts and issues for consideration in all cases are similar in the case of ITA 977/Ahd/2025. Accordingly, Department's appeal is allowed in ITA 978/Ahd/2025 and ITA 978/Ahd/2025 as well.

In the combined result, all appeals filed by the Department are allowed. Order pronounced in the Open Court on 04/11/2025 at Ahmedabad. (DR. BRR KUMAR) VICE PRESIDENT (SIDDHARTHA NAUTIYAL) JUDICIAL MEMBER अहमदाबाद/Ahmedabad, दिनांक/Dated 04/11/2025 टी.सी. नायर, व.नि.स./T.C. NAIR, Sr. PS आदेश की प्रतिलिपि अग्रेषित/