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Facts
The Revenue appealed the deletion of additions made by the AO. The AO had added back Rs. 1,36,97,000/- as unexplained cash credit and Rs. 6,84,850/- as unexplained expenditure concerning the assessee's claim of Long Term Capital Gains (LTCG) exempt under Section 10(38). The AO based his findings on investigation reports alleging a modus operandi of investments in penny stocks for bogus LTCG.
Held
The Tribunal held that the assessee had provided sufficient documentary evidence, including share allotment letters, demat statements, contract notes, and bank statements, to substantiate the purchase and sale of shares. It followed precedents from the Jurisdictional High Court and its own coordinate benches, which held that such additions are unsustainable without specific evidence of the assessee's involvement in price manipulation or accommodation entries.
Key Issues
Whether the LTCG claimed as exempt under Section 10(38) was bogus, and additions under Sections 68 and 69C were justified solely on the basis of investigation reports without specific evidence against the assessee.
Sections Cited
10(38), 68, 69C, 143(3), 250
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Income Tax Appellate Tribunal, NAGPUR BENCH :: NAGPUR
Before: SHRI PAWAN SINGH & SHRI KHETTRA MOHAN ROY
This appeal filed by the Revenue is directed against the order of Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi, dated 01.06.2023 passed u/s. 250 of the Income Tax Act, 1961 (for short, “Act”) which is arising out of assessment (Shikha Indrakumar Agrawal) order passed u/s. 143(3) dated 29.12.2017 by the ACIT, Circle-4, Nagpur for the Assessment Year 2015-16.
Revenue has raised the following grounds of appeal:-
1. On the facts and in the circumstances of the case, the Ld. CIT(Appeals), NFAC has erred in deleting the addition of Rs.1,36,97,000/- & Rs.6,84,850/- made by the AO which were done after making independent enquiry and in concluding that the LTGC claim of the assessee was bogus and the corresponding expenditure in obtaining the bogus LTCG as unexplained expenditure u/s 69C of the Act.
2. On the facts and in the circumstances of the case, the Ld. CIT(Appeals), NFAC erred in allowing the appeal of the assessee ignoring the fact that investigation on the basis of information carried out by the Kolkata Investigation Wing and Mumbai on the basis of statement of various entry provider, share brokers, exist providers had unearthed the modus operandi of investments in penny stock for obtaining bogus LTCG as in the assessee’s case.
3. On the facts and in the circumstances of the case, the Ld. CIT (Appeals), NFAC erred in allowing the appeal of the assessee by ignoring the fact that the fundamentals of the M/s. GCM Securities do not corroborate with the instant hike in the price of its share and without examining the same to arrive at the conclusion.
4. Any other grounds which may be raised at the time of hearing with the permission of Hon’ble ITAT.” 2 (Shikha Indrakumar Agrawal)
3. In the present case, assessee has filed his return of income for AY 2015-16 on 21/10/2015, declaring total income of Rs.15,58,120/-. Case was selected for scrutiny, statutory notices u/s 143(2) & 142(1) of the Act were issued and duly served upon the assessee. Ld.Assessing Officer (AO) observed that the assessee had declared long term capital gains (LTCG) of Rs.1,32,17,000/- and claimed the same as being exempt u/s 10(38) of Act in respect to shares of M/s. GCM Securities Ltd. Assessee purchased 24000 shares of M/s. GCM Securities Ltd. for Rs.4,80,000/-. The shares have been sold at stock exchange through Registered Stock Broker. The total sale proceeds amount to Rs.1,36,97,000/- and LTCG on the same amounting to Rs.1,32,17,000/- which is claimed exempt u/s 10(38) of the Act. Ld. AO concluded the assessment holding that explanation offered by the assessee in respect of the source of credit being sale transaction has been held to be not satisfactory and section 68 is squarely applicable. The assessment order was passed by Ld. AO by making addition of Rs.1,36,97,000/- on account of unexplained cash credits u/s 68 of the Act in respect to sale proceeds of shares. Ld. AO also made addition of Rs.6,84,850/- as reasonable (Shikha Indrakumar Agrawal) rate of 5% of amount as commission paid not shown in books of account by invoking the provisions of section 69C of the Act.
Being aggrieved, assessee carried the matter before the Ld. CIT(A), who after considering the assessment order, written submissions and documentary evidences, allowed the appeal of the assessee. While allowing, Ld. CIT(A) at para 7.3 in page No. 26 of impugned order tabulated the facts in the case of assessee with the facts as considered in the order of husband of the assessee Shri Indrakumar G. Agrawal. Ld.CIT(A) after considering the facts and evidence on record has concluded at para 7.4 that the facts involved in the case of the assessee are identical to the facts assessee’s husband as detailed at para 7.3 of the appellate order. Ld.CIT(A) after following the order of CIT(A)-3, Nagpur, dated 12/05/2023 proceeded to hold that the addition made by the Ld. AO at Rs.1,36,97,000/- u/s 68 of the Act and Rs.6,84,850/- u/s 69C of the Act are hereby deleted and directed the Ld. AO to allow the exemption claimed u/s 10(38) of the Act.
Ld. Departmental Representative (DR) heavily placed reliance on the order passed by Ld. AO. He submitted that the transactions 4 (Shikha Indrakumar Agrawal)
are all colourable devices and has been entered as a subterfuge with sole intention for tax evasion and to bring unaccounted income of the assessee back to books under the garb of exempt income. The learned Departmental Representative furnished written submission with a prayer that the Tribunal is requested to consider the totality of circumstances as transactions are shown to be very complex and where meeting of mind cannot be established. Reliance has been placed on judicial precedents as discussed in the written gist of submission. He has referred to modus operandi as indicated in the assessment order on the basis of investigation made by the Department. It has also been noted that non-provision of cross- examination of person involved in accommodation entries is not material, as person whose statements are recorded have only confirmed the modus operandi. It has been also noted that direct evidence is not necessary and test of preponderance of probability be applied in such cases. It is on this basis it has been submitted that appeal of department be allowed.
On the other hand, learned counsel for the assessee submitted that the issue involved in present appeal is squarely covered by 5 (Shikha Indrakumar Agrawal)
decision of the Hon’ble Bench of this Tribunal in the case of Rameshwarlal Mathuraprasad (HUF) vs. ACIT in vide order dated 14/05/2025. It is submitted that aforesaid decision is of family of assessee. On similar facts and circumstances the Hon’ble Tribunal has considered transaction in respect to same scrip M/s GCM Securities Ltd. On considering complete documentary evidence such as share allotment advice, demat account statements, contract notes and proof of transactions through proper banking channels, the long-term capital gain arising on sale of shares is concluded to be non-assessable as unexplained cash credit under section 68 of the Income-tax Act, 1961 merely on the basis of general reports of the Investigation Wing or on the theory of human probabilities. The Tribunal further held that in the absence of any direct evidence linking the assessee with alleged price manipulation or accommodation entries, the addition made by the Assessing Officer was unsustainable and accordingly deleted the additions made under section 68 as well as the consequential addition under section 69C of the Act.
(Shikha Indrakumar Agrawal)
The learned counsel for the assessee further submitted that the assessee had furnished complete documentary evidences before the Assessing Officer in support of the purchase and sale of shares, including share allotment documents, demat account statements evidencing entry and exit of shares, contract notes issued by the registered stock broker, ledger account of assessee in the books of broker and bank statements showing receipt of sale consideration through proper banking channels. The transactions are carried out on recognized stock exchange. Payment of Security Transaction Tax is made and is evident from contract notes. Shares are duly reflected in the demat account of the assessee. Despite the availability of these legal and cogent evidences, Assessing Officer proceeded to make the impugned addition merely on the basis of general investigation reports and assumptions without bringing any specific material on record to establish that the transactions entered into by the assessee were bogus. The ratio laid down by the Hon’ble Tribunal in the aforesaid decision squarely applies to the facts of the present case and the learned CIT(A) has rightly deleted the addition made by the Assessing Officer.
(Shikha Indrakumar Agrawal)
Learned counsel for the assessee assessee has submitted that the Hon’ble High Courts of Bombay, Orissa, Gujarat, Punjab & Haryana, Rajasthan, Delhi, Allahabad and Madhya Pradesh have considered the additions made u/s 68 of the Act in respect to sale proceeds of shares sold on Stock Exchange and claim u/s 10(38) of the Act. The judgments rendered by Hon’ble Bombay, Orissa, Gujarat and Rajasthan High Courts have achieved finality on dismissal of SLP by Hon’ble Supreme Court. Various judgments are placed on record to substantiate the submission made. It has been further contended that in view of binding precedents of Hon’ble Jurisdictional High Court, the view taken in the judgment of Hon’ble Kolkata High Court in Swati Bajaj cannot have any adversity. It has been submitted that this is more so in view of settled proposition of law that when two views are available the view favorable to subject needs to be adopted.
We have heard the rival submissions and perused the material available on record. In the present case assessee was allotted 24,000 shares at the price of Rs.20 per equity share pursuance to application (Shikha Indrakumar Agrawal)
for shares made by assessee for 60,000 shares. The share application form and allotment letter issued by M/s Purva Shareregistry (India) Pvt. Ltd. is placed at page Nos. 3 & 4 of the Paper Book. The assessee had made application for 60000 shares and was allotted 24000 shares. Demat account for the period from 01/04/2013 to 31/03/2014 is placed on record at page No.5 of the Paper Book. It indicates that in April 2013, assessee has received 24000 shares. The shares held by assessee in M/s. GCM Securities Ltd. have been sold through M/s.Anand Rathi Share & Stock Brokers Ltd. in the month of July 2014. Contract note for sale of shares are placed on record at page Nos. 6 to 10 of Paper Book. It is evident from the contract note that Security Transaction Tax has been paid by assessee at the time of sale apart from other charges collected by stock broker. Contract notes indicate the trade time as well as order number and date of sale of shares. Credit of sale amount in terms of contract note is given in the account of assessee in the ledger book of M/s.Anand Rathi Share & Stock Brokers Ltd. and the same is placed on record at page No. 11 of the Paper Book. Payment in respect to sale proceeds of shares is through proper banking channel and it is evident from (Shikha Indrakumar Agrawal) ledger account of assessee in the accounts of stock broker. Demat account of the assessee for the period from 01/04/2014 to 31/03/2015 is placed on record at page No. 15 – 16 of the Paper Book. Opening shares held in respect M/s GCM Securities Ltd. have been transferred at the time of sale in terms of contract note. Entire documentary evidence has been placed on record before lower authorities to substantiate the genuineness of transaction of purchase and sale of shares by assessee. The investment in shares is reflected in the balance sheet for the assessment year 2014-15.
We find that the issue involved in the present appeal is squarely covered by the decision of this Bench of the Tribunal in the case of Rameshwarlal Mathuraprasad (HUF) vs ACIT in wherein the Tribunal had occasion to consider identical facts relating to transactions in the shares of M/s.GCM Securities Ltd. The relevant extract of the said decision is reproduced hereunder: “9. We have given a thoughtful consideration to the arguments made by the rival parties and perused the material available on record. We have perused the evidence on record and find that assessee was allotted 24,000 shares in Initial Public Offer at the price of Rs.20/- per equity share pursuance to application for shares made by assessee for 60,000 shares. The share application form and allotment letter issued by M/s Purva Shareregistry (India) Pvt. Ltd. is placed on record at Page–1 & 2 of the Paper Book. The assessee had 10 (Shikha Indrakumar Agrawal)
made application for 60,000 shares and was allotted 24,000 shares. Demat account for the period from 01/04/2013 to 31/03/2014 is placed on record at Page–3 of the Paper Book. It indicates that on 03/04/2013, the assessee has received 24,000 shares in the initial public offering. In the aforesaid account, the assessee has also received share of M/s Power Grid, allotted in initial public offering at 1,029 shares. The shares held by assessee in M/s GCM Securities Ltd. have been sold through M/s Anand Rathi Share & Stock Brokers Ltd. during the period from July 2014 to September 2014. Contract note for sale of shares are placed on record at Page–4 to 8 of the Paper Book. It is evident from the contract note that Security Transaction Tax has been paid by assessee at the time of sale apart from other charges collected by stock broker. Contract notes indicate the trade time as well as order number and date of sale of shares. Credit of sale amount in terms of contract note is given in the account of assessee in the ledger book of M/s Anand Rathi Share & Stock Brokers Ltd. and the same is placed on record at Page–9 of the Paper Book. Payment in respect to sale proceeds of shares is through proper banking channel and it is evident from ledger account of assessee in the accounts of stock broker. Demat account of the assessee for the period from 01/04/2014 to 31/03/2015 is placed on record at Page–10 of the Paper Book. Opening shares held in respect M/s GCM Securities Ltd. have been transferred at the time of sale in terms of contract note. Entire documentary evidence has been placed on record before lower authorities to substantiate the genuineness of transaction of purchase and sale of shares by assessee. The investment in shares is reflected in the balance sheet for the assessment year 2014-15. Facts as noted hereinabove are undisputed facts on record.
We further noticed that the Assessing Officer has primarily placed reliance on the report given by the Investigation Wing of the Income Tax Department, Kolkata to arrive at the conclusion that the long term capital gain reported by the assessee is bogus in nature. We further noticed that the Investigation Report prepared by Investigation Wing, Kolkata is general in nature with regard to the modus operandi adopted in manipulation of prices of certain shares and generation of bogus capital gains. Statements of persons recorded by Department at Kolkata are not in the assessment proceedings of assessee and are general statements. We further noticed that the Assessing Officer has placed reliance on the said report without bringing any material on record to show that the transactions entered by the assessee were 11 (Shikha Indrakumar Agrawal)
found to be a part of manipulated transactions, i.e., it was not proved that the assessee has carried out the transactions of purchase and sale of shares in connivance with the people who were involved in the alleged rigging prices. We also find that the assessee has purchased these shares by paying consideration through banking channels in IPO directly from listed company. Shares are kept in demat account; sale of shares is through stock exchange platform and received the sale consideration through banking channels. Further, the shares have entered and exited the demat account of the assessee. We notice that the Assessing Officer himself has not found any defect/deficiencies in the evidences furnished by the assessee with regard to purchase and sale of shares. As noticed earlier, the Assessing Officer has not brought on record any material to show that the assessee was part of the group which involved in the manipulation of prices of shares. The Assessing Officer in the assessment order at Page–49 has noted that it is not the case of this office whether purchase of shares through preferential placement/ merger did actually took place or shares were sold on the exchange at the prevalent market rates after paying STT or not. The Assessing Officer has concluded on the basis of analysis, circumstantial evidences, human conduct and preponderance of probabilities is that what is apparent in this case is not real that these financial transactions were sham ones and that this entire edifice was only a colorable device used to evade tax. Statements referred to in the assessment order are not in relation to transaction made by assessee for purchase and sale of shares and are general statements recorded by Investigation Wing of Kolkata. It does not refer to transaction of assessee. The Assessing Officer at Para–16 of the assessment order has noted that it is humanly not possible for the brokers to be present for oral cross examination. The learned CIT(A) has dismissed the appeal by noting that circumstantial factors and human probabilities clearly indicates that the assessee indulged in taking accommodation entries through sale of shares to uphold the action of the Assessing Officer and dismissal of appeal. No evidence, as placed on record, has been found to be incorrect or false in any manner. Written submission as submitted by the learned Departmental Representative again is making general observations without indicating any specific mistake in the legal documentary evidence placed on record. Written submission furnished by the learned Departmental Representative is generalized submission and it has not found any specific mistake in the transaction made for sale of shares by assessee by bringing any 12 (Shikha Indrakumar Agrawal) legal evidence on record. It does not indicate the legal evidence placed on record in any specific manner. It is undisputed fact on record that sale of shares is at the market rate on the date of sale of shares on stock exchange. xxx xxx xxx
We may refer to the decision rendered by the Hon’ble Jurisdictional High Court in PCIT v/s Indravadan Jain (HUF), Income Tax Appeal No.454 of 2018, order dated 12/07/2023, 156 taxmann.com 605 (Bom.) and relevant discussion made by the Hon’ble Bombay High Court are extracted below:-
“4. The A.O. did not accept respondent's claim of long term capital gain and added the same in respondent's income under section 68 of the Act. While allowing the appeal filed by respondent, the CIT[A] deleted the addition made under section 68 of the Act. The CIT[A] has observed that the A.O. himself has stated that SEBI had conducted independent enquiry in the case of the said broker and in the scrip of RFL through whom respondent had made the said transaction and it was conclusively proved that it was the said broker who had inflated the price of the said scrip in RFL. The CIT[A] also did not find anything wrong in respondent doing only one transaction with the said broker in the scrip of RFL. The CIT[A] came to the conclusion that respondent brought 3000 shares of RFL, on the floor of Kolkata Stock Exchange through registered share broker. In pursuance of purchase of shares the said broker had raised invoice and purchase price was paid by cheque and respondent's bank account has been debited. The shares were also transferred into respondent's Demat account where it remained for more than one year. After a period of one year the shares were sold by the said broker on various dates in the Kolkata Stock Exchange. Pursuant to sale of shares the said broker had also issued contract notes cum bill for sale and these contract notes and bills were made available during the course of appellate proceedings. On the sale of shares respondent effected delivery of shares by way of Demat instructions slip and also received payment from Kolkata Stock Exchange. The cheque received was deposited in respondent's bank account. In 13 (Shikha Indrakumar Agrawal) view thereof, the CIT[A] found there was no reason to add the capital gains as unexplained cash credit under section 68 of the Act. The tribunal while dismissing the appeals filed by the Revenue also observed on facts that these shares were purchased by respondent on the floor of Stock Exchange and not from the said broker, deliveries were taken, contract notes were issued and shares were also sold on the floor of Stock Exchange. The ITAT therefore, in our view, rightly concluded that there was no merit in the appeal.
We also find no infirmity in the order passed by the ITAT and no substantial questions of law as proposed in the appeal arises.”
In the instant case also, we noticed that the evidences furnished by the assessee to prove the purchase and sale of shares, payment made/received, entry/exit of shares in the demat account of the assessee etc., are not found to be incorrect. Ratio laid down supports the assessee’s case and the addition made in assessee’s case is held to be unjustified. xxx xxx xxx
Accordingly, in view of the facts and circumstances of the case, we are of the considered opinion that the decisions rendered by the jurisdictional Hon’ble Bombay High Court and various Hon’ble High Courts in the cases cited above shall apply to the present case, since the Assessing Officer has not established that the assessee was involved in price rigging and further the Assessing Officer did not find fault with any of the documents furnished by the assessee.
We also noticed earlier that the Assessing Officer has assessed the sale consideration of shares as unexplained cash credit under section 68 of the Act. It is pertinent to note that the purchase of shares made in an earlier year has been accepted by the Revenue. The sale of shares has taken place in the online platform of the Stock Exchange and the sale consideration has been received through the stock broker in banking channels. It is not alleged that shares sold are available with the assessee and are not sold as claimed. Hence, in the facts of (Shikha Indrakumar Agrawal)
the case, the sale consideration cannot be considered to be unexplained cash credit in terms of section 68 of the Act.
The learned Departmental Representative has referred to judicial precedent in Suman Poddar which has been referred to as that of the Hon’ble Kolkata High Court. The aforesaid decision in fact is rendered by the Hon’ble Delhi High Court and is reported as 423 ITR 480 (Del). The aforesaid decision of Suman Poddar has been considered by the Hon’ble Delhi High Court itself in Krishnadevi reported as 431 ITR 361 (Del.), vide Para–12 of its judgement and the same is reproduced hereinabove at Para–23. The Hon’ble Delhi High Court itself has noted that aforesaid decision was on account of lack of evidence produced by the assessee therein to show the actual sale of shares in that case. In view of above, nothing adverse remain in respect to such decision relied upon by learned Departmental Representative.
The Hon’ble Gujarat High Court in PCIT v/s Divyaben Prafulchandra Parmar, Income Tax Appeal No.812 of 2023, vide order dated 02/01/2024, has dismissed the appeal of the Revenue. The Hon’ble High Court at Para–11 of the judgement has reproduced the order of the ITAT wherein reliance on judgement of Swati Bajaj of the Hon’ble Calcutta High Court is considered. Relevant extract of judgement is reproduced hereunder:– “[11] The Tribunal also distinguished the judgement relied upon on behalf of the Revenue in the case of Swati Bajaj (supra) in following paragraphs: “33. We note that Ld DR for the Revenue heavily relied on the Judgement of Hon'ble Calcutta High Court in the case of Swati Bajaj and other (supra), however, we are of the view that as per the judgement of Hon'ble High Court of Bombay in the case of Thanna Electricity Supply Ltd (1994) 206 (ITR) 727 (Bom) wherein it was held that decision of a High Court will have the force of binding precedent only in the State or territories in which the Court has jurisdiction. Hence we note that judgment of Hon'ble Calcutta High Court in the case of Swati Bajaj and others (supra) should not be applicable to the assessee as it is outside territorial jurisdiction of Gujarat. However, the Judgment of Hon'ble Jurisdictional High Court of Gujarat in the case of 15 (Shikha Indrakumar Agrawal)
Jagat Pravinbhai Sarabhai and Nishant Kantilal Patel (supra) should be applicable in the assesse's case as there are the judgment of Jurisdictional High Court. Besides, the Jurisdictional Co-ordinate Bench of ITAT Ahmedabad in the save of M/s. Ice Worth Reality LLP. Vide & 566/Ahd/2020, for Assessment Year 2012-13 & 2015-16, order dates 13.03.2023 (supra), deleted the addition made by the Assessing Officer in respect of Sunrise Asian Ltd. (“SAL”) shares, which is impugned shared before us. We note that Assessing Officer has not been able to point out any evidence whatsoever to alleged that money changed hands between the assessee and the broker or any other person, or father that some person provided the entry to convert unaccounted money for getting benefit of LTCG, as alleged.
We note that addition under section 18 of the Act made merely on the basis of suspicion presumptions and probability of preponderance without any direct evidence to prove the transactions as non–genuine or sham or demonstrating assessee's involvement in any kind of manipulation, cannot be made. Thus, the assessee has explained and submitted evidences to prove identity, nature of source of the cash credit on account of sale proceeds credited received in the bank account of the assessee and also furnished all evidences comprising contract notes, broker, banking details in support of the genuineness of the transactions. The shares are sold by the assessee's broker on BSE platform hence source in BSE's clearing system. The transactions on the BSE platform and settlement system who are responsible for the transactions of the demat account and prevailing price on public domain prove the genuineness of the transactions. Therefore, respectfully, following the judgment of Hon'ble Jurisdictional High Court (supra) and Coordinate Bench of ITAT (supra), we deleted the addition Rs. 49,01,840/-.
Since we have deleted the mam addition of Rs 49,01,840/-, therefore Ground No 2 raised by the assessee for addition under section. 69C for Rs. 98,038/-, w.r.t. notional commission expenses 2% of LTCG being unexplained expenditure, is consequential in nature and hence deleted.
(Shikha Indrakumar Agrawal) xxx xxx xxx [16] Considering the contentions raised on behalf of the Revenue,the Tribunal has arrived at a finding of fact that shares of Sunrise Asian Ltd. sold by the assessee cannot be doubted as bogus and exemption under Section 10(38) of the Act was rightly availed by the assessee. The Tribunal has also concluded that the presumption drawn by the Assessing Officer was not corroborated by any evidence to establish the alleged non- genuine transaction by the assessee. It was, therefore, rightly held by the Tribunal that the claim of the assessee for exemption of Long Term Capital Gains under Section 10(38) of the Act cannot be held to be bogus on the basis of presumption in absence of any evidence brought on record by the assessee with regard to shares of Sunrise Asian Ltd, which is not even found to be rigged by the SEBI also. The Tribunal has also considered that the assessee held the shares for two and half years and after holding the shares for a long period, the same were sold by the assessee and therefore, reliance was placed on the decision of this Court in the case of Jagat Pravinbhai Sarabhai (supra), wherein this Court has held as under: “5. The genuineness of investment in the shares by the assessee was substantiated by him by producing copy of transaction statement for the period from 1.6.2001 to 1.10.2010. The investment was made in the year 2000- 01. The shares were retained for more than ten years and were sold after such long time. These circumstances suggested that the investment was not bogus or investment made in penny stock. The shares were purchased in order to invest and not for the purpose of earning exempted income by frequent trading in short span.
The finding recorded by the appellate authority and confirmed by the appellate tribunal is based on material before them. They are in the realm of findings of fact. No error could be noticed in the findings and conclusion that the investment was longstanding and genuine and was not penny stock on the basis of which the capital gain was wrongly claimed.
(Shikha Indrakumar Agrawal)
6.1 On the facts of case, no question of law much less substantial question of law arises. 7. Resultantly, appeal is dismissed.” [17] In view of the above, we are of the opinion that no question of law much less any substantial question of law arises from the impugned order passed by the Tribunal. The appeal, being devoid of any merit, is, accordingly, dismissed.”
The decisions of the Hon’ble Jurisdictional High Court on the subject matter are binding precedents in view of settled position of law. Reliance on the decision of Swati Bajaj of Hon’ble High Court of Calcutta by the learned Departmental Representative was on facts as in the said case and said decision is distinguishable considering facts in assessee’s case. It is contrary to the judgements rendered by the Hon’ble Jurisdictional High Court. It isequally settled position of law that on two possible views a view favourable to assessee needs to be adopted. Thus, nothing adverse remains from the judgement of Swati Bajaj of Hon’ble Calcutta High Court.
The learned Departmental Representative has referred to decision of Hon’ble Supreme Court in M/s NRA Iron and Steel Pvt. Ltd. v/s CIT. The aforesaid decision has been noted by the Hon’ble Jurisdictional High Court while considering the issue of addition under section 68 and exemption under section 10(38) of the Act in PCIT v/s Ziauddin A. Siddique, in its judgement dated 04/03/2022. Extract of the aforesaid judgment is reproduced in this order at Para–14. At Para–4 of the judgement, it has been noted that reliance on the aforesaid judgement does not help the Revenue inasmuch as the facts in that case were entirely different. In the light of above factual position, there remains no adversity from the said judgement relied upon by the learned Departmental Representative. The learned Departmental Representative has also referred to the decision of Hon’ble Supreme Court in CIT v/s Sumati Dayal reported as 214 ITR 801 (SC). The aforesaid decision has also been considered by the Hon’ble Jurisdictional High Court in CIT v/s Smt. Jamnadevi Agrawal, reported as 328 ITR 656 (Bom.) while considering provisions of section 68 on sale of shares. The extract of aforesaid judgement has been reproduced in this order at Para–11. In the judgement at Para–15, the (Shikha Indrakumar Agrawal)
Hon’ble Jurisdictional High Court has concluded that decision relied upon by the counsel is distinguishable on facts. In view of above factual position, there remains no adversity in respect to such judgement relied upon by learned Departmental Representative.
The entire case of the Assessing Officer is based on the preponderance of probabilities and the normal human conduct to allege that the transaction undertaken by the assessee was not genuine. It is a settled position in law that the onus of proving that the apparent is not real is on the person who alleges it to be so. It is not open to the Revenue to simply allege that the apparent is not real in a given case, as the one at hand, without bringing on record any tangible material to establish the same. Reference, in this regard may be made to the judgment of the Hon’ble Supreme Court in CIT v/s Daulat Ram Rawatmull: 87 ITR 349 (SC), wherein the Hon’ble Supreme Court held that if FD in the names of sons of partners are utilized as security by the Firm, then, the onus of proving that Firm was owner of the FD was on the Revenue. In Jaydayal Poddar v/s Bibi Hazra: AIR 1974 SC 171, Supreme Court held that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner is on the person asserting it to be so. It has similarly been held in the case of CIT v/s Bedi & Co. (P) Ltd: 230 ITR 580 (SC). The principle of law thus is that the Assessing Officer cannot treat a transaction as bogus only on the basis of suspicion or surmise. The Assessing Officer has to bring tangible material on record to support his finding that there has been collusion or connivance between the broker and the assessee for the introduction of its unaccounted money. A transaction of purchase and sale of shares supported by contract notes and demat statements and account payee cheques cannot be treated as bogus. In the facts in the case of assessee Assessing Officer and the learned CIT(A) had not placed on record any independent tangible material or evidence to both establish that assessee had undisclosed income and further that the share transaction undertaken were bogus. Reference can be made to the judgement of Hon’ble Supreme Court in the case of McDowell & Co. Ltd. reported at 154 ITR 148 (SC). It has been held that the act of questioning the very basis of a transaction and branding it as illegitimate or a camouflage has to be based on substantial, concrete and cogent evidence, wherein the proof of wrong-doing has to be clear and succinct. In this connection, reference may be made to the observations of the Hon’ble Supreme Court in the case of Union of India v/s Azadi bachao Andolan, [(2003) 132 Taxmann 373 (SC)], 19 (Shikha Indrakumar Agrawal)
wherein while referring to their judgement in the case of McDowell & Co (supra), the Supreme Court had made the following pertinent topical observations:- “We are unable to agree with the submission that an act which is otherwise valid in law can be treated as non-est merely on the basis of some under laying motive supposedly resulting in some economic determent or prejudice to the national interest, as perceived by the respondents.”
On the facts and evidence on record, it is evident that no opportunity of cross–examination has been provided to the assessee in respect to statement of persons referred to in the assessment order to draw adverse inference. On the contrary, at Para–16 of assessment order, it has been noted that no opportunity to cross–examination to broker is humanly possible. Reliance on the statement which has not stood to the cross–examination is violation of principles of natural justice and contrary to law laid down by the Hon’ble Supreme Court in Andaman Timber Industries, reported as 127 DTR 241 (SC). The addition made by the Assessing Officer being contrary to law laid down by the Hon’ble Supreme Court is held to be unjustified.
Considering the totality of facts and on examination of evidence on record, we hold that the assessee has explained the transaction of purchase and sale of shares satisfactorily. Transaction of sale of shares is hereby held to be genuine and bona fide considering the legal evidence available on record. Legal position on the subject discussed hereinabove fully supports the assessee’s case as to the addition made by the Assessing Officer is unjustified and unsustainable. In view of the foregoing discussions, we hold that he sale consideration received on sale of shares cannot be assessed as unexplained cash credit under section 68 of the Act. Long term capital gains declared in the return of income and exemption claimed hereby accepted as shown in return of income. Accordingly, we direct to delete the impugned addition made at Rs.1,50,73,436. Hence, the grounds raised
by the assessee are allowed.
34. In in the assessment order at Para 27, it has been noted that reasonable rate of 5% of the amount as commission paid not shown in the books of the assessee to bring back unaccounted money in his books as bogus long term capital gain is being calculated as 20 (Shikha Indrakumar Agrawal) unexplained expenditure under section 69C of the Act at 7,53,672, being 5% of the amount of addition made under section 68 of the Act at 1,50,73,436. The aforesaid addition has been upheld by learned CIT(A) by noting at Para 5 that the assessee might have incurred an expenditure for giving commission to various intermediaries and entry providers. With these observations, appeal of the assessee has been dismissed by the learned CIT(A). The submission made by learned Counsel for the assessee is reproduced at Para 6. It is evident from the assessment order as well as from the appellate order that there is no evidence on record to indicate that the assessee has incurred any expenditure on account of alleged commission for which the addition has been made at the hands of the assessee. Basis of addition is solely as Assessing Officer and the learned CIT(A) have not accepted the sale transaction in respect to sale of shares of M/s GCM Securities Ltd. We have already held hereinabove that sale transaction in respect of shares is genuine and bona fide as per documentary evidence on record. In view of the above, there remains no case for any alleged commission which calls for any addition at the hands of assessee. The very premise for which the addition is made has been held to be incorrect and thus consequent addition made by the Assessing Officer for alleged expenditure is unjustified and unsustainable. It is seen that the Assessing Officer has made adverse inference which is not based on any material or evidence on record. The Assessing Officer has not even stated as to whom the aforesaid money is paid so as to constitute the expenditure incurred which may require explanation by the assessee. It is settled position of law that onus is on the Assessing Officer to show first that the expenditure is incurred and question of same required to be explained by assessee arises thereafter. In the first place there being no evidence of expenditure incurred by the assessee, the question of any addition for the same does not survive. The addition made by the Assessing Officer is unjustified and unsustainable. We, therefore, hold that there is no case for making any addition under section 69C of the Act at the hands of the assessee. The addition made by the Assessing Officer and upheld by learned CIT(A) at 7,53,672 is directed to be deleted. Thus, the grounds challenging the addition of 7,53,672, of the assessee is allowed.
In the result, appeal by the assessee stands allowed.”
(Shikha Indrakumar Agrawal)
In the aforesaid case, the Ld. AO had treated the sale proceeds of shares as unexplained cash credit u/s. 68 of the Act and made further addition towards alleged commission expenditure u/s. 69C. The Tribunal, after examining the documentary evidences such as share allotment advice, demat account statements, contract notes and banking transactions, held that the sale proceeds arising from the sale of such shares could not be treated as unexplained cash credit u/s. 68 merely on the basis of general investigation reports or on the theory of human probabilities in the absence of any direct evidence linking the assessee with price manipulation or accommodation entries and accordingly allowed the exemption under section 10(38) of the Act in respect of the long-term capital gain arising from such transactions, while also deleting the addition made under section 68 and 69C. The facts of the present case are similar to the facts considered by this Bench in the aforesaid decision and the scrip involved is also the same. Therefore, the findings recorded by the Tribunal in the said decision squarely applies to the facts in the present case. Respectfully following the aforesaid decision of this Bench, we find no infirmity in the order passed by the Ld. CIT(A) in (Shikha Indrakumar Agrawal)
deleting the additions made by the Ld. AO u/s. 68 & 69C and allowing exemption under section 10(38) of the Act.
In the result, appeal filed by the Department is dismissed.