ACIT, CIRCLE-6, JAIPUR, JAIPUR vs. ALOK KUMAR JAIN, JAIPUR

ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM Both the present cross appeals are filed because revenue and assessee aggrieved with the order of National Faceless Appeal Centre, Delhi [ for short ‘CIT(A)’ ] dated 05.08.2024 for the Assessment Year 2016- challenged the assessment order passed by the National Faceless Assessment Unit [ for short AO ] u/s 147 r.w.s 144 of the Income Tax Act, 1961 [ for short “Act”] on 30.05.2023 before him.

2.1 The grounds of appeal taken by the assessee in ITA No.

2. Under the facts and circumstances of the case and in law, Ld. CIT (A) erred in passing Impugned order u/s 250 of the Act without providing opportunity of being heard.

3. Under facts and circumstances of the case and in law, the Ld. CIT(A)/NFAC has grossly erred in confirming the assumption of jurisdiction by the Ld.AO u/s 147 of the Act.

4. Under facts and circumstances of the case and in law, the CIT(A) has erred in upholding the action of the Ld. AO in issuing the impugned notice u/s 148 of the Act and consequential assessment proceedings u/s 147 of the Act.

5. Under the facts and circumstances of the case and in law, Ld. CIT(A)

& 1228/JP/2024 Alok Kumar Jain vs. ACIT/DCIT erred in upholding addition of Rs. 11,10,170/- in respect of agricultural income. The appellant craves leave to add, amend, alter, revise and modify any of the grounds of appeal on, before or in the course of hearing of the appeal.

6. The appellant craves leave to add, amend, alter, revise and modify any of the grounds of appeal on, before or in the course of hearing of the appeal.”

2.2 Whereas the grounds appeal raised by the revenue in appeal No. 1228/JP/2024 for assessment year 2016-17 reads as follows:

“1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is justified in deleting the addition of Rs. 4,77,46,835/- made by the AO u/s 68 of the income Tax Act, 1961 on account of bogus Long Term Capital Gain? 2. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is justified in holding that claim of ling term capital gain (Rs. 4,77,46,835/-) of exemption u/s 10(38) of IT Act do not suffer from infirmities and cannot be held as bogus ignoring the fact that the impugned transaction was manipulated/deceptive device to create profit/loss? 3. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is justified in deleting the addition made u/s 69A of the Act by the AO on account of commission paid of Rs. 23,87,341/- towards availing bogus LTCG for acquiring accommodation entries? 4. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is justified in deleting the addition made by the AO on account of commission paid for acquiring accommodation entry ignoring that such type of synchronized trading is violation of transparent norms in securities? 5. Whether on the facts and in the circumstances of the case and in law, learned CIT(A) is justified in admitting additional evidences without calling for remand report from the AO which is in violation of Rule 46A of the Income Tax Rules, 1962?”

3. First we take up the appeal of the assessee in ITA No. 1191/JP/2024.

The Brief fact as culled out from the records is that the assessee – appellant is an Individual filed his return of income on 10.10.2016 wherein he declared income of Rs. 77,67,630/-. That return of income was that the scrip of the M/s Yamini Investment Company Limited "YICL" was managed and controlled to benefit certain pre-decided persons. The assessee sold shares of the company YICL amounting to Rs. 4,77,46,835/- . As the assessee had made the transaction, in company, which was controlled to benefit certain pre-decided persons, being penny stock, is not genuine and the same was liable to be added to the income of the assessee which the assessee has claimed as exempt from tax for an amount of Rs. 4,65,16,639/- u/s. 10(38) of the Act. Based on that set of facts the case of the assessee was re-opened by issue of notice u/s. 147 of the Act. Before issue of notice necessary approval from competent authorities was taken and thereby the notice u/s. 148 of the Act was issued on 09.04.2021 and the assessee vide letter dated 09.09.2021 provided the reasons for re-opening of the assessee. The issue of notice after 31.03.2021 because of pre-amended provision of section 148 of the Act, resulted into largescale litigation all over India. On that as per the direction of the Hon’ble Supreme Court the assessee was provided with the information and documents which were available vide letter dated 25.05.2022 and the assessee was requested to file its response. The assessee filed the response which was discussed in the order passed u/s case was considered as per new inserted provision of section 148A(c) of the Act and thereby the notice u/s. 148 of the Act was issued to the assessee on 26.07.2022. The assessee also challenged issue notice u/s. 148 of the Act before the Jurisdictional High Court. As the High Court did not grant any stay or passed on the order the ld. AO proceeded by making the assessment based on the re-opening notice.

3.1 Ld. AO in the re-opened proceeding making the detailed discussion taken a view that the transactions related to trading in the scrip of M/s.

Yamini Investment Company Limited (YICL) amounting to Rs. 4,77,46,835/- are bogus, colored and not genuine and the same has been done to accommodate unaccounted money of the assessee in regular accounts and facilitate in the scheme of entry accommodation though penny stocks. The ld. AO also noted that the as the assessee has not provided details of purchase and source of payment to purchase shares of YICL to justify the claim u/s. 10(38) of the Act and therefore, he held that Long Term Capital Gain claimed by the assessee from sale of stock of YICL for Rs. 4,77,46,835/- charged to tax u/s. 68 of the Act.

3.2 While holding so he also estimated and added a commission @ 5 % on that amount which was calculated at Rs. 23,87,341/- as unexplained the form of LTCG.

3.3 In the ITR filed the assessee has also claimed an exempt income of Rs. 11,10,170/- as agricultural income. As the assessee failed to justify the claim by filling the required document the said income was considered as other income of the assessee.

4. Aggrieved from the order of the National Faceless Assessment Center, assessee preferred an appeal before CIT(A). Apropos to the grounds raised the relevant finding of ld. CIT(A) is reiterated here in below:

“5. Decision: 5.1 Facts in brief: 5.1.1 The facts relevant for the present appeal in brief are that the appellant filed his return of income on 10.10.2016 declaring total income of Rs. 77,67,630/- which was processed u/s 143(1). Subsequent to this it came to the information of AO that share price of Yamini Investment Company Ltd. (YICL) was managed in such a manner that benefitted certain pre-decided person. This information came to the AO in consequence to the search and survey conducted in case of Dutta and Tyagi Group on 16.05.2018 and post-search operation in that group. It was also informed to the AO that the appellant was also one of the persons who have taken benefit of share price manipulation in YICL. The AO referred to the return of income and found that the appellant has claimed Long Term Capital Gain of Rs. 4,64,99,603/- on sale of Rs. 4,77,46,835/- worth of shares of YICL allegedly held by the appellant for more than one year. On the basis of the above information the AO recorded the reason to believe that income has escaped assessment and jurisdiction to reassess the income of the assessee was assumed. It is matter of record that against the assumption of jurisdiction to reassess the assessee is in appeal before Hon'ble High Court of Jaipur. This appeal, has not been decided so far. However, the appellant, by his submission dated 30.07.2024 has now informed that the writ petition stands abandoned after (covered in) the decision of Hon'ble Supreme Court in the case of Ashish Aggrawal vs. UOI. 5.1.2 Notices u/s 142(1) were issued in this case on 30.01.2022, 04.05.2023, 11.04.2023, 17.05.2023 & 19.05.2023, the last two notices were in form of show- cause notices. Perusal of para 2 of the impugned order is suggestive of the fact & 1228/JP/2024 Alok Kumar Jain vs. ACIT/DCIT that each of these notices were responded. In his written submission the appellant has appended some of these replies along with attachments submitted online to the AO during the course of regular assessment. The fact of such submissions made by the appellant to the AO was also verified from the digital record accessible to the undersigned. However, at the time of deciding the impugned order, the AO has passed this order u/s 144 r.w.s. 147.

5.1.3 In the impugned order of assessment the AO has treated the entire receipt of Rs. 4,77,46,835/- shown to be sale proceed of the shares of YICL to be unexplained cash credit. Apart from this the AO has also disallowed 5% of this receipt as unexplained expenditure to take the above mentioned accommodation entry. The AD has also declared the agriculture income as unexplained credit not eligible for exemption from tax. Aggrieved by the above additions, the assessee is in present appeal.

5.2 Ground No. 1 & 2: Both these grounds are general in nature, therefore, these grounds are not to be adjudicated separately.

5.3 Ground No. 7: This ground, along with 7 of its sub-grounds are directed against the decision of the AO to add the sale receipts from the shares of YICL amounting to Rs. 4,77,46,835/- as unexplained cash credit.

5.3.1 The AO in the recorded reason to believe and also at multiple places in the impugned order of assessment has mentioned that as per information with the department, the share price of YICL was managed and controlled to benefit certain pre-decided persons. The assessee Shri Alok Kumar Jain has also sold shares of the company YICL amounting to Rs. 4,77,46,835/-, The AO further notes that as the assessee made transactions in a company which was controlled to benefit certain pre-decided person, therefore, the transaction is not genuine as YICL is a penny stock (para 2 & 5 of recorded reasons, para 1, para 4.2.1 and para 4.2.3 at page 10).

5.3.2 The AO has not adduced any reason or document on the basis of the above conclusive observation has been made. Further no reference has been made to any evidence found qua the appellant during the course of search at Dutta and Tyagi Group or subsequent post search investigation on the basis of which this conclusion has been arrived by the AO. There is no mention of any incriminating document found during the course of search. Absence of any incriminating document found against the appellant also gets supported from the fact that no proceedings against the appellant have been initiated u/s 153C. Additionally, there is no mention of any recorded statement in which it has been alleged that the appellant was one of the beneficiary of price manipulation undertaken in the shares of YICL. After repetitive mention of conclusive information that the appellant is one of the pre-decided beneficiary of price manipulation in the shares of YICL, the AO concludes the following in para 4.6.2 of the impugned order:

& 1228/JP/2024 Alok Kumar Jain vs. ACIT/DCIT Hence, in the light of above discussions, it is concluded that the assessee has traded in the penny scrip of the M/s Yamini Investment Company Limited "YICL" amounting to Rs. 4,77,46,835/- during F.Y. 2015-16 relevant to AY 2016-17. The transactions in this scrip are bogus, coloured and not genuine. It has been done to accommodate unaccounted money of the assessee in the regular accounts and facilitate in the scheme of entry accommodation through penny stocks.

Furthermore, assessee has furnished only copy of bill issued form M/s Myra Apparels Private Ltd., without any invoice no, or any other details, authenticity of the purchase bill could not ascertain and the bill is easily self- manageable. Further, it is also pertinent to mention here that, M/s Myra Apparels Private Ltd. Has not responded to the notice issued u/s 133(6) for verification of the sale purchase of the shares through offline mode.

Hence, Long Term Capital Gains of Rs. 4,65,16,639/- claimed by the assessee from sale of the stock of M/s Yamini Investment Company Ltd. "YICL" is being disallowed and treated the total sale proceeding of shares of M/s Yamini Investment Company Ltd. "YICL," amounting to Rs. 4,77,46,835/- u/s 68 of the Income Tax Act, 1961 since the claim is nothing but the manipulation by the assessee for routing his own unaccounted cash credit in the guise of bogus LTCG. Therefore, the same is assessed in the hands of the assessee as unexplained cash credit within the meaning of Section 68 r.w.s. 115BBE of the IT Act.

5.3.3 In respect of this ground, the appellant in his written submission made the following argument:

Section 10(38) (38) any income arising from the transfer of a long- term capital asset, being an equity share in a company or a unit of an equity oriented fund 72[or a unit of a business trust] where-

(a) the transaction of sale of such equity share or unit is entered into on or after the date on which Chapter VII of the Finance (No. 2) Act, 2004 comes into force; and (b) such transaction is chargeable to securities transaction tax under that Chapter: Provided that the income by way of long-term capital gain of a company shall be taken into account in computing the book profit and income-tax payable under section 115JB.

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5.3.5 In his written submission the appellant has filed copy of reply dated 19.05.2023 made to the AO. It is profitable to extract para 3.6 and para 3.7 of the said submission made to the AO.

"3.6 In support of the transaction, we are enclosing herewith the following documents:

(i) copy of confirmation from Myra Apparels Private Ltd. for purchase of shares of Anax Com Trade;

(ii) Copy of bank statement evidencing payment made towards purchase of shares;

(iii) Copy of ledger of the assessee maintained with the broker i.e. Skung Tradelink Limited. Evidencing the above transaction.

(iv) Copy of Contract Notes evidencing the sale of shares;

(v) Copy of bank statement highlighting the amount credited on sale of shares;

3.7 Upon perusal of the above documents, it can be easily concluded that transaction of sale and purchase of shares is a genuine transaction entered by assessee. The assessee discharged his onus by producing all above mentioned documents in order to substantiate the genuineness of the transaction of sale and purchase of shares. Accordingly, your honour will also acknowledge and appreciate that the assessee not taken any accommodation entry in the form of long term capital gain on sale of these shares."

5.3.6 I have verified from the digital record of assessment that the above submission was made by the appellant along with the documentary evidence which suggested that shares of Anax Com Trade was purchased by the appellant from Myra Apparels Pvt. Ltd. The payment for this purchase was made through banking channel in support of which the appellant produced evidences. The appellant also produce D-mat account in which these shares were credited on 25.04.2014. Pursuant to the scheme of arrangement the shares of Anax Com Trade was & 1228/JP/2024 Alok Kumar Jain vs. ACIT/DCIT swapped for shares of YICL. The appellant had also produced demat account dated 08.05.2015 showing credit of the shares of YICL. Subsequent sale of YICL had taken place through the registered broker on the recognised stock exchange. The appellant filed contract notes and bank statement to demonstrate the genuineness of the share transactions. There is no finding of the AO on genuineness or otherwise of the transactions evidenced by these submitted documents.

5.3.7 Various high courts are divided on the decision of taxability of gains arising out of trading or investing in the shares which have demonstrated unusual price movements. At one hand, Hon'ble Calcutta High Court in the case of Pr CIT vs. Swati Bajaj [2022] 139 Taxmann.com 352 (Calcutta), based upon preponderance of evidence has decided that the gains arising out of trading or investing in such shares can be treated as accommodation entries. However, most of the high courts including jurisdictional high court of rajasthan in the recent case of PCIT vs. Arnav Goyal decided on 19.02.2024 has decided the issue in favour of assessee in fact situation of assessee successfully demonstrating the event of purchase of share, payment of purchase through banking channel, holding of shares in demat account and sale of the share through registered broker through an online transaction executed on registered stock exchange on prevailing share prices and receipt of share proceed to banking channel. In the present appeal the appellant had produced documentary evidence for entire chain of transaction starting from investment in the shares of Anax Com Trade, payment for purchase through banking channel, holding of shares of Anax Com Trade in demat account, subsequent holding of shares of YICL in demat account, sale of shares through registered broker which were executed on registered stock exchange on which STT along with other charges were paid and receipt of sale proceed through banking channel. It is matter of record that these evidences have not been contradicted by the AO. The AO has also not brought any evidence or even recorded statement of any party which is suggestive of the appellant being involved in taking accommodation entry in grab of long term capital gain.

5.3.8. The situs of the assessee is Jaipur which falls in State of Rajasthan. I am therefore, bound by the decision of Hon'ble jurisdictional High Court of Rajasthan in the case of PCIT vs. Arnav Goyal (supra). I am also guided by the decision of Hon'ble Surpeme Court in the case of PCIT vs. Renu Aggrawal 153 Taxmann.com 579 (SC) 456 ITR 249 (SC) decided on 03.07.2023 in which the SLP filed by the Revenue was dismissed. In terms of the above discussion, the decision of the AO is considered to be erroneous and the ground is decided in the favour of the appellant.

5.4 Ground No. 8: This ground is consequential to the decision in ground no. 7. Therefore, this ground is also decided in favour of the appellant..

5.5 Ground No. 9:

“4.6.4 The assessee has claimed exempt income of Rs. 11,10,170/- under the head of agricultural income. In this regard the assessee has been asked to fumish the supportive documentary evidences that he has carried out agricultural activities for earning this income. However, the assessee has not provided any supporting documentary evidences to prove his claim and only furnished document for Land Holding. Which does not substantiate the claim of assessee for earning agricultural income form the said land.

Since the assessee has failed to furnish any documentary evidences for eaming the exempted agricultural income of Rs. 11,10,170/- therefore, the exempted income of Rs. 11,10,170/- is to disallowed and treated as the income of the assesee as income from other source during the year."

5.5.2 Against this addition of the AO the following argument has been taken by the appellant in his submission dated 13.05.2024:

5.5.3 The Jamabandi filed by the appellant has been carefully perused. As per this document the appellant is owner of 75.11 bigah of land. The purchased document of the land submitted by the appellant only signifies that for the purpose of collection of the stamp duty this land is classified as agricultural land. Agriculture is an activity that needs to be carried out on the land which includes but is not restricted to ploughing. tiling, sowing of seeds, irrigating the land, carrying out processes for plant protection, harvesting, processing of the produce and selling the agricultural produce. Mere ownership of land neither means nor signifies that all these activities have been undertaken by the appellant. It is trite that onus is on the appellant to prove that any receipt appearing in his books of account. If the appellant states that receipt of Rs. 11,10,170/- was receipt on account of agricultural activity, it was on him to prove the same with help of documentary evidences, which he has miserably failed. The other argument that agricultural income in the earlier year was accepted as such does not hold good for the current & 1228/JP/2024 Alok Kumar Jain vs. ACIT/DCIT year. For agricultural is an annual activity which needs to be undertaken in each croping season. Therefore, even if he was able to prove that in previous year he had agriculture income will not mean that he must have agriculture Income this year too. Ground No. 9 is therefore, dismissed. 5.6 Ground No. 3,4,5 & 6 become academic after decision on Ground no. 7,8 & 9. Therefore, these grounds are not being adjudicated. 5.7 Ground No. 10: Levy of interest u/s 234A, 2348 and 234C are consequential in nature. Therefore, this ground is not to be adjudicated. 5.8 Ground No. 11: This ground may be adjudicated at the time of decision on order of penalty, if any. 5.9 There was no change in the grounds of appeal filed by the appellant, therefore, ground no. 12 is not to be adjudicated.

6. The appeal filed by the assessee is partly allowed.”

5. Aggrieved from the above order of the ld. CIT(A) both the revenue and that of the assessee challenges that order before this tribunal on the grounds as reiterated herein above. Both the parties supported the order of the lower authority as favorable to them.

6. The assessee in support of the appeal so filed in supported the grounds so raised by filling a detailed written submission which reads as under :

SYNOPSIS OF ARGUMENT IN THE APPEAL OF THE ASSESSEE 1. The Appellant is an individual who has filed return of income for the year under consideration on 10.10.2016 and declared total income of Rs 77,67,630/- (Pb No.1).. The return of income filed by the Appellant was duly assessed u/s 143(1)(a) of the Act as per returned income. Appellant has claimed exempted income of Rs. 4,65,16,639/- on account of long-term capital gain u/s 10(38) of the Act in respect of sale of shares in his return of income.

2. The Ld. AO disputed the said exemption and besides this made addition in respect of agricultural income without any basis. The impugned proceedings are perse without jurisdiction and authority of law in view of the following legal arguments taken during hearing before the Hon’ble Bench. S. Legal Basis Argument in Brief P.B. Reference No 1. Barred by Ld. AO does not have in possession any books of accounts 238-242 Limitation or other documents or evidences which reveal that income (Impugned chargeable to tax, represented in the form of asset , which Order u/s has allegedly escaped assessment amounts to or is likely 148A(d)) to amount Rs.50 lacs or more. Consequently, the notice is barred by limitation in terms of section 149(I)(b) of the Act ( 243-244 (notice as amended vide Finance Act , 2021). after Ashish Case law: Agarwal Case) IDFC Ltd. vs Deputy Commissioner of Income-tax [2023] 155 taxmann.com 602 ( Madras ) 246(reasons to believe) 2. Approval not Before issuing notice u/s 148(a)(b), approval is required to 241 sought from be sought from specified authority in terms of section 151 of Pr. CCIT the Act as amended by Finance Act, 2021. In terms of section 151(ii) of the Act , in case assessment is reopened after expiry of 3 years from the end of relevant assessment year (case in hand), approval is required from Principal Chief commissioner or Principal Director General. In the present case, there is no such approval from the competent authority and as such impugned reassessment is bad in law and liable to be dropped.

Case law:- Vodafone Idea Ltd. vs Deputy commissioner of Income Tax and Others [ 2024 ] 468 ITR 346 ( Bombay )

Balkrishna Barsha Sutar vs Income Tax Officer and Others [ 2024 ] 468 ITR 348 ( Bombay ) WS1-23 3. Recourse of Re-assessment proceedings were based on the information Section 147 that search and survey action were carried out in case of taken instead the Tyagi Group and Dutta Group on 16.05.2018. Therefore, of Section Assessing Officer should have taken recourse to action 153C 153C and not section 147 of the Act, for carrying out impugned reassessment proceedings in the case of the Appellant.

S. Legal Basis Argument in Brief P.B. Reference No Case Laws:

Shyam Sunder Khandelwal S/o Late Damodar Lal Khandelwal , vs Assistant commissioner of Income Tax , Central Circle 2 Jaipur , D.B. Civil Writ Petition No. 18363/2019

Shri Navrattan Kothari , vs The ACIT , Central Circle-2, Jaipur , JP / 2017

G.Koteswara vs DCIT , Central Circle -1, Visakhapatnam [ 2015 ] 4. No Material In terms of Explanation 1 of section 148 of the Act, WS-5 is confronted information which suggests income chargeable to tax has with the escaped assessment means information flagged in the appellant in case of assessee by Risk Management Strategy. In the the notice u/s present case, there is no such information flagged. 148 Consequently, the notice so deemed to be notice u/s 148A(b) does not survive and liable to be dropped.

In the notice issued u/s 148A(b) on 28.05.2022, it was alleged by the Ld. AO that the search and survey actions were conducted regarding Tyagi and Datta Group and it was found that certain individuals benefitted from managing and controlling the scrip of M/s Yamini Investment Company. However, no specific material was provided to the appellant to support these allegations and nothing has been brought on record as to how, Dutta and Tyagi Group is related to M/s Yamini Investment Ltd.

Case laws:

CBDT instruction no. F.NO. 299/10/2022-Dir ( Inv. III ) / 6 / 11 dated 01.08.2022

Divya Capital One ( P ) Ltd. v. Assistant Commisioner of Income – tax [2022] 139 taxmann.com 461 ( Delhi )

Rajhans Processors vs Union of India [ 2023 ] 149 taxmann.com 29 ( Rajasthan )

S. Legal Basis Argument in Brief P.B. Reference No R.K. Buildcreations Private Limited vs Income Tax Officer

Best Buildwell ( P ) Ltd. vs Income-tax Officer [2022] 141 taxmann.com 558 ( Delhi )

5. Notice u/s The CBDT notification No. 18/2022/F.No. 370142/16/2022- WS-21 148 is in TPL( Part 1 ) dated 29.03.2022 provides that the issuance violation of of notice shall be in a faceless manner for reassessment. 243-244 the CBDT Thus, notice issued u/s 148 of the Act dated 25.07.2022 is notification without jurisdiction.

Case Laws:

Hexaware Technologies Limited vs Assistant Commisioner of Income Tax , Circle 15(1)(2) , Writ Petition No. 1778 of 2023 06. Addition At the outset, the impugned addition is not sustainable as WS-11 made for the very proceedings u/s 148 of the Act are bad in law and Agricultural basis on which proceedings were initiated are non-existing Income and found to be non-existing by Ld. CIT(A) itself. Therefore, the subsequent addition for other items is not justified in view of the specific explanation to Section 147 of the Act. There is no escapement of income at all, thus, addition made lack jurisdiction.

Without prejudice to above, claim of exempt agricultural income of Rs. 11,10,170/- was denied on the alleged reason that the appellant has not submitted the supporting document with the respect to the agricultural activities carried out for earning exempt agricultural income. The Appellant submitted the jamabandi ( PB 294-306 ) and title documents and details of the agricultural income in respect of the same. The same is also supported by Khasara Girdawari report (enclosed).

Base on which reasons to believe alleged to be recorded being verification of transaction, has been duly done and after verification, the same has been found non-existent. Therefore, there lies no case of further addition on any other issue.

S. Legal Basis Argument in Brief P.B. Reference No Reference is invited to Explanation to Section 147 of the Act and following case laws:

Commissioner of Income-tax-5, Mumbai v. Jet Airways (I) Ltd. [2010] 195 Taxman 117 (Bombay) CIT vs Shri Ram Singh [ 2008 ] 306 ITR 343. (Raj) M/s. S V Jadhav VS. The Income Tax Officer Ward 1, SanglI WRIT PETITION NO.3345 OF 2024, Bombay High Court

A. Rejoinder on written synopsis filed by department on 16.01.2025 vide letter no. S.NO. JCIT(DR)/ITAT/JPR/2024-25/1005 Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 • • 1. addition of long-term capital gain of It is submitted that for invoking the Rs. 4,77,46,835/- claimed by provision of Section 68 of the Act, Assessee from the sale of stock of Assessee should maintain books of M/s Yamini Investment Company Ltd accounts maintained by the Appellant. was made u/s 68 of the Act , on In the present case , there is no such alleged reason that the Appellant has finding by the Ld.AO that the Appellant routed his own unaccounted cash maintain books of account and sum is credit in the guise of bogus LTCG found to be credited in the books of made. account maintained by the Assessee.

• Assessee has already submitted the • The Ld. CIT(A) relying heavily on sufficient documentary evidence which judicial precedents such as PCIT vs has not been disapproved and proved Arnav Goyal, deleted the addition false by the Ld. AO, no defect has without adequately examining the been pointed out at the veracity of the material facts and evidence documentary evidence placed on presented by the AO. record, which beyond doubt establishes the genuineness of the transaction done by Assessee. Therefore , addition made u/s 68 is not justified.

• Accordingly, the order of Ld. CIT(A) is supported and therefore it is incorrect Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 to state that Ld. CIT(A) without adequately examining the material facts and evidences deleted the addition. There is no contrary evidence brought on record by the department to prove their contention except mere raising doubts on the documentary evidence duly supporting the case of the Assessee.

• Reliance placed on the order of SEBI is misconceived and factually incorrect, the said order does not name the Assessee to be beneficiary, thus, there is no link of the said order with the case of the Assessee.

• Kindly refer Para No. 65 of Written Submission and Ld. CIT(A) Order Page No. 19-21 Para No. 5.3.5 to 5.3.8. The Ld. CIT(A) has applied its mind to judgment of PCIT vs. Arnav Goyal which is squarely applicable in the facts of the present case. Thus, his decision on deleting addition on merit is justified without prejudice to contention that impugned proceedings are per se without jurisdiction as jurisdiction notice u/s 148 of the Act is without authority of law.

Case Laws :-

PCIT vs Krishna Devi [2022] 138 taxmman.com 150(SC) CIT vs Smt. Pooja Agarwal Other judgments as referred in compilation of cases laws submitted during hearing. • • 2. The assessee’s transaction in YICL In the given case, no disclosure has was flagged during a search and been made to the Appellant regarding Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 survey operation conducted in the the identity of the individuals controlling case of Dutta and Tyagi Group, M/S Yamini Investment Company which revealed that YICL was a Limited for the benefit of certain penny stock manipulated to benefit persons. Furthermore, no such pre-decided beneficiaries. information or document has been provided to the Appellant regarding the • relationship between Tyagi Group , The Ld. AO stated that SEBI’s order Dutta Group and M/s Yamini dated 04.09.2023 confirms involvement of YICL in manipulation Investment Company Limited. of scrip used for accommodation • entries. As far as the reliance placed on SEBI Order dated 04.09.2023 is concerned, • the said order does not implicate the Violation of Rule 46A of the Income Assessee at all, as evident from bare Tax Rules committed by CIT by perusal of the said Order. There is no admitting additional evidence without name of the Assessee in said Order, remanding the matter back to the AO for verification. which fact is being misreported by the department.

• No additional evidences were adduced by the Assessee during appeal proceedings before Ld. CIT(A), therefore, the contention of violation of rule 46A is incorrect and misconceived. • • 3. The Assessing Officer figure out the SEBI vide its order no. distinction from the key facts in the WTM/AB/IVD/ID11/29124/2023-24 case of PCIT vs Arnav Goyal and dated September 4 , 2023 ( PB 307 – PCIT vs Renu Aggarwal by stating 394 ) has directed the list of 65 entities that SEBI findings directly implicate restrained from dealing in securities in YICL as a penny stock manipulated any manner in the security market for a for accommodation entries, and the period of 2 years from the date of the assessee is one of the beneficiaries aforesaid order. The name of the of these transactions. Assessee is nowhere mentioned in the aforesaid order and there is no such • order that the shares of Yamini The Assessee’s name appears in the investigation conducted during Investment CO Ltd were penny stock. In the list of 65 person banned from search operation on Dutta and Tyagi trading, no name of Assessee is there, Group, and the AO established a thus allegation made is against the clear link between the assessee and facts. the manipulated scrip.

Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025

• • Further, the Department has made The allegation made by department distinction from the matter of PCIT vs are bereft of any basis and not Renu Aggarwal by gathering emanating from SEBI order. In the circumstantial and direct evidence , order of SEBI, certain including unverified invoices and non individual/persons were barred from – compliance with notices under trading and there is no such order that 133(6) proving that the transactions SEBI held that Yamini Investment was were not genuine. providing accommodation entries.

• Furthermore, no such information or • The Assessing Officer is empowered document has been provided to the by Section 148 of the Income Tax Act Appellant regarding the relationship 1961 to reopen an assessment after between Tyagi Group, Dutta Group the completion of the original and M/s Yamini Investment Company assessment under section 143(3). Limited or Assessee. There is no evidence to prove that Assessee’s name appears in investigation report. • The Ld. AO alleged that the No such report of investigation has been confronted with the Assessee, Assessee is not a regular Investor in therefore, the allegation made is the shares , and a new investor does specifically denied and not to be not invest in the company which are considered as the same is without any not listed or having week financials. iota of evidence and not supported by material on record.

• It is submitted that notice claimed to be issued u/s 133(6) of the Act to Myra Apparels is not confronted to the Appellant. Furthermore, the date, time place, on which it was purportedly issued to Myra Apparels along with the address has not been disclosed to the Appellant, which raises serious doubts regarding the issuance of the notice to Myra Apparels as claimed by the Ld. AO. Therefore, the doubting on genuineness of the ground that notice u/s 133(6) was not responded is baseless. Moreover, it is trite law Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 merely because purchaser/seller did not respond to notice u/s 133(6) of the Act, no adverse inference against the Assessee is justified.

• In the absence of any such notice being brough on record, the very existence of fact of issuance of such notice is specifically denied and disputed.

Regarding jurisdiction u/s 148 of the Act • The very issuance of notice u/s 148 of the Act is without valid approval as required under the law. • Notice u/s 148 of the Act has not been issued by Ld. NFAC, Delhi in view of specific notification providing for e- assessment of income escaping assessment. • No information or documents relied upon or investigation report has been shared with the Assessee Notice has been issued in respect of sale transaction, beyond three years, there is no escapement in the form of asset, which is primary condition for invoking extended period of limitation.

Decision to make investment • In the present appeal , the appellant had produced documentary evidence for entire chain of transaction starting from investment in the shares of Anax Com Trade, payment for purchase through banking channel , holding of shares of Anax Com Trade in demat account , subsequent holding of shares of YICL in demat account, sale of shares through registered broker which Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 were executed on registered stock exchange on which STT along with other charges were paid and receipt of sale proceed through banking channel. There are available in paper book of documents submitted.

• In this context, it is submitted that the Appellant invested in the shares of M/s Yamini Investment Company based on advice given to him and after considering the potential growth of the company. It is a fact that the release of the company’s earnings report influenced the stock price, as was the case with the scrip of M/s Yamini Investment Company Ltd. Therefore, no adverse inference against the Appellant is required. Further reference Para No. 9-11 of Written Submission, Ld. CIT(A) Order Page No. 3-4)

• Department is not allowed to step in to the shoes of genuine investor and his decision making.

Case Laws relied upon:

IDFC Ltd. vs Deputy Commisioner of Income- tax [2023] 155 taxmann.com 602 ( Madras)

Vodafone Idea Ltd. vs Deputy Commisioner of Income Tax and Others [ 2024 ] 468 ITR 346 ( Bombay High Court )

Balkrishna Barsha Sutar vs Income Tax Officer and Others [ 2024 ] 468 ITR 348 ( BOMBAY HIGH COURT )

CBDT instruction no. F.NO. 299/10/2022-Dir ( Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 Inv. III ) / 6 / 11 dated 01.08.2022

Divya Capital One ( P ) Ltd. v. Assistant Commisioner of Income – tax [2022] 139 taxmann.com 461 ( Delhi )

Rajhans Processors vs Union of India [ 2023 ] 149 taxmann.com 29 ( Rajasthan )

R.K. Buildcreations Private Limited vs Income Tax Officer

Best Buildwell ( P ) Ltd. vs Income-tax Officer [2022] 141 taxmann.com 558 ( Delhi ) Case Laws Relied upon by Department and its distinction with the case of Assessee-Appellant i. The Department relied upon the judgment of The reliance placed on judgment in case of the Hon’ble High Court in PCIT vs Swati Swati Bajaj is misconceived. The case law Bajaj where it was stated that the onus lies relied upon by the department is the judgment on the assessee to prove the genuineness of Hon’ble Calcutta High Court, whereas of transactions while dealing with penny jurisdictional High Court judgment in case of stocks. PCIT vs. Arnav Goyal squarely covers the case of the Assessee and which has been STT payment and banking channels do not correctly relied upon by Ld. CIT(A) being the establish genuineness of the transaction. decision of jurisdictional High Court having binding force as against the judgment of other High Court.

In the given facts of the case of Swati Bajaj, there was material, information and adverse material placed on record by the department, whereas in the case of the Assessee herein there is complete absence of information or material. The information that Assessee was beneficiary as per SEBI order is itself incorrect and non-existing. Therefore, Ld. CIT(A) has correctly applied the judgment of Jurisdictional High Court.

Assesse has given due verification of complete trail of transaction with third party Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 evidence, which has not been faulted with except merely doubts have been raised.

Payment of STT is the proof that transaction has been done through automated system of NSE/BSE and no offline transaction has taken place. Therefore, allegation that STT payment and banking channel do not establish genuineness is incorrect. Besides this transaction being through banking channel, there are ample evidences of accounts confirmation and D-Mat ledger debit/credit and frequency of transaction at regular interval, which distinguishes the case of the Assessee from various case laws relied upon by the department. ii. PCIT vs NRA Iron & Steel Pvt. Ltd. [2019] The judgement of Hon’ble Apex Court in the 103taxmann.com 48 case of NRA Iron & Steel Pvt Ltd is in relation to addition u/s 68 of the Act in respect of share capital issued to unidentified parties. The said decision is not with respect to capital gain exemption; thus, the case law is not applicable and hence distinguished. Moreover, in the case of the Assesse the sell transaction is through stock exchange and identity of scrip has been established, the shares of YICL are still traded on NSE/BSE, therefore, genuineness of transaction cannot be doubted. iii. Sajan Dass & Sons vs. CIT [2003] 264 ITR Facts of the case law relied upon are entirely 435 different, in this case law relied upon by department, the assessee made claim of gift, which he was unable to substantiate. Whereas, in the case of the Assessee, the claim of capital gain has been duly established and substantiated, therefore, onus of the Assessee has been duly discharged. Thus, facts of the case of Assessee is clearly distinguishable.

Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 iv. Pr CIT vs Bikram Singh 2017 85 This judgment is on the directions to Hon’ble taxmann.com 104 High Court to frame substantial question of law for appeal to be filed before Hon’ble High Court. The issue involved in this case, as enunciated by the Delhi High Court was regarding the identity and financial soundness of the creditor, whereas, the Assessee has received sale consideration by selling shares in open market, therefore, there is no case of any creditor. Thus, the said judgment is not of any help to the department. The addition in this case was made in respect of loans and advances from 8-person, u/s 68 of the Act, whereas in the case of the Assessee, herein, the section 68 of the Act is not applicable at all as no finding has been recorded by Ld. AO that there is any sum found credited in books of accounts. The case of the Assessee is not of any unexplained cash credit as no such case has been made out by the Ld. AO. v. SEBI vs Rakhi Trading Pvt. Ltd. [2018] The said judgment is on the issue of levy of 13SCC 753 penalties by SEBI for fraudulent trading, whereas the case of the Appellant is want of jurisdiction u/s 148 of the Act and denial of exemption u/s 10(38) of the Act. Thus, reliance placed on this judgment is misconceived. vi. PCIT vs M/s Laxman Das Khandelwal [2019] The case law is on the proposition that 108 taxmman.com 183 complete absence of notice u/s 143(2) of the Act is not protected by provisions of Section 292BB of the Act. The said case law also lays downs principle that absence of jurisdiction or want of jurisdiction cannot be cured u/s 292BB of the Act, thus, the principle laid down in this case law are rather favouring the case of the Assessee-herein, in which case, notice u/s 148 of the Act has been issued without jurisdiction and approval/sanction. There is no finding in this judgment that banking transaction and STT payment are insufficient.

Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 vii. CIT vs N R Portfolio Pvt. Ltd. [2013] 29 The said decision has been overruled in taxmann.com 291 various courts in later decisions. Furthermore, the said decision is in regard to issuance of CIT vs. Fair Finvest Ltd ( 2013) 357 ITR 146 share capital and non-verification of shareholder, in those circumstances, the courts took adverse view against the Assessee. In the case of Appellant, there is no creditor at all, rather receipt of money from open market sources, NSE/BSE platform, therefore, the proposition that banking payment is not sufficient is not applicable in the case in hand as the facts and legal proposition laid down are entirely different and clearly distinguishable. viii. Pr. CIT vs. Vaman International Ltd. [2020] There is no such finding in the order of 113 taxmman.com 400 (BOMHC) Hon’ble Bombay High court regarding insufficiency of banking payments. The case law relates to addition u/s 69C in respect of alleged bogus purchases, thus, the facts of the case are entirely distinguishable and thus, this judgment is not applicable in the case of the Assessee in hand. ix. CIT vs Neminath Enterprises [2018] 97 There is no such finding regarding payment taxmann.com 402 through banking channels. The findings alleged are only view of the Assessing officer, which has not been upheld by the Hon’ble Court. The facts of the case of judgment relied upon by department is entirely different as addition made was with respect to loans and advances from certain parties, which creditors were not established. Whereas in the case of the Assessee-Appellant in hand, there is no case of any creditor and books of accounts. x. Deepak Nagar vs. DCIT [2022] ITAT Delhi This is not a reported judgment and does not Bench hold good law. Moreover, the fact of the case were such that there was established case of penny stock, which Appellant could not disprove by leading cogent evidence. In the instance case, there is no nexus of the Assessee with alleged information or claim of penny stock or alleged beneficiary from price Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 manipulation etc. Thus, case law relied upon is clearly distinguishable and not applicable to Assessee’s case in hand before Hon’ble Tribunal. xi. Sumati Dayal vs. CIT [1995] 214 ITR 801 This judgment is related to human probabilities (SC) and circumstantial evidence on the scope of Section 68 of the Act and burden of proving CIT vs. Durga Prasad More [1971] 82 ITR that apparent is not real. Heavy burden is 540 (SC) required to be discharged by department to prove that apparent is not real. It is trite law that burden of proving that apparent (capital gain claim) is not real (bogus) is on the person who claims it and the same is to be discharged by evidences. In the case in hand this burden has not been discharged by the department. Thus, reliance placed by department on principles laid down by Apex Court in CIT vs. Durga Prasad More is misconceived.

In the case of Sumati Dayal there were winning from race to a person who was novice, whereas the case in hand is capital gain income earned by casual investor from his investment held for considerable period of time, which investment has been found correct by SEBI and other agencies including Ld. CIT(Appeals). Thus, the case law relied upon by the department is clearly distinguishable.

The Assesse has duly discharged its burden by proving the claim of exemption by leading supporting evidences, including third party evidences, which have not been rebutted.

Further reliance is placed on principle laid down in CIT v. Daulat Ram Rawatmull [1973] 87 ITR 349 for proposition that burden of proof that apparent is not real or claim of bogus transaction in on department (person who alleges that apparent is not real or there is Para Argument by department in their written Rejoinder by the Assessee-Appellant submission filed during hearing on 16.01.2025 bogus transaction).

C. CONCLUSION AND PRAYER In view of the above, appeal of the Assessee deserves to be allowed by holding that impugned proceedings are without jurisdiction and without authority of law. Thus, it is prayed that proceedings initiated by Ld. AO be declared null and void and all consequential additions made be deleted. Moreover, the departmental appeal also fails on the legal grounds itself, as there is full verification of trail of transaction and satisfaction of requirement of Section 10(38) of the Act as far as claim of exemption of capital gain is concerned. Moreover, agricultural claim is also justified and no further addition required, when after due verification, the basis of exemption is found correct and justified. Since the very basis of proceeding is non-existent and found to be non-existent despite there being lack of approval under the law, therefore, reassessment proceedings are without jurisdiction and accordingly, on very ground of lack of jurisdiction, the assessment order is bad in law, perverse and arbitrary and without authority of law. 6.1 To support the contention so raised in the written submission reliance was placed on the following evidence / records / decisions:

Page No. Sr. No Document Title WS1-WS52 1. Copy of Written Submission before Ld. CIT(A)

1 2. Copy of return of income filed u/s 139(1) of the Act dated 10.10.2016 2 3. Copy of notice dated 09.04.2021 issued u/s 148 of the Act 3-7 4. Copy of impugned reason recorded

13-15 5. Copy of notice dated 28.05.2022 issued u/s 148A(b) of the Act 16-26 6. Copy of objection dated 10.06.2022 filed in response to the notice issued u/s 148A(b) of the Act

Page No. Sr. No Document Title 27-37 7. Copy of further reply dated 16.06.2022 filed in response to the notice issued u/s 148A(b) of the Act 38 8. Copy of Invoice from Myra Apparels Pvt Ltd 39 9. Copy of account Confirmation from Myra Apparels Pvt Ltd 40-41 10. Copy of bank statement 42-45 11. Copy of statement of account 46-82 12. Copy of Contract Notes 83-84 13. Copy of DP-Statement 85-148 14. Copy of banks statements 149-152 15. Copy of BSE trade Summary for AY2016-17 153-236 16. Copy of Annual Report of Yamini Investment Company for FY2015-16 237-242 17. Copy of order dated 25.07.2022 passed u/s 148A(d) of the Act 243-244 18. Copy of notice dated 26.07.2022 issued u/s 148 of the Act

245-246 19. Copy of show cause notice dated 17.05.2023 issued u/s 144 of the Act

247-259 20. Copy of reply dated 19.05.2023 filed in response to show cause notice dated 17.05.2023 issued u/s 144 of the Act 260-273 21. Copy of show cause notice dated 19.05.2023

274-293 22. Copy of reply dated 24.05.2023 filed in response to show cause notice dated 19.05.2023 294-306 23. Copy of Jamabandi. 307-394 24. Copy of order by NSE in case of Yamini Investment Company

Page No. Sr. No Document Title

395-398 25. Copy of Latest BSE quotation of M/s Yamini Investment Company Limited

7. In this appeal the ld. AR of the assessee also submitted detailed case law compilation and the same is extracted here in below; S. No Case law Relevant portion Page No. Case Laws on jurisdiction u/s 148 of the Act 1. Rajhans Processors v.

2. B.U. Bhandari 8. In the reasoning recorded, it is not clear as to how 6-9 Autolines P. Ltd. v. M/s Magnum Tradex Pvt. Ltd. is sought to be connected ACIT [2023] 149 with Rajeev Khushwaha. It has not been alleged in the taxmann.com 219 reasons that M/s Magnum Tradex Pvt. Ltd., with whom the Petitioner made an alleged sale was being run by (Bombay) Rajeev Khushwaha, although, in the reply affidavit, it is stated by the revenue that M/s Magnum Tradex Pvt Ltd, was one of the entities which was floated by Rajeev Khushwaha for the purpose of providing accommodationentries.

10. Further, it can be seen that reasons also do not furnish any explanation as to on what basis and material the assessing officer came to a conclusion that M/s Magnum Tradex Pvt. Ltd., was indeed a shell entity. The verification of the VAT returns referred to in the reasons recorded suggest only transaction between the Petitioner and M/s Magnum Tradex Pvt. Ltd., in regard to goods sold amounting to Rs. 2,08,76,068/-. There was, thus, no material or basis for the assessing officer to hold the transaction between the Petitioner and M/s Magnum Tradex Pvt. Ltd., as not a genuine transaction of sale or for that reason to hold that M/s Magnum Tradex Pvt. Ltd. was a shell entity. The reasons recorded do not suggest at all whether pursuant to receipt of information, the assessing officer had independently applied its mind to the information received or conducted its own inquiry into the matter for the purpose of coming to a conclusion that indeed income assessable to tax had escaped assessment or that the transaction in question with the alleged shell entity was only a paper transaction.

11. In our opinion, the impugned notice dated 30 March 2021 issued under section 148 of the Act was issued without satisfying the conditions precedent under section 147 of the Act.

Issuance of notice u/s 148 of the Act not by NFAC

4. Kankanala Ravindra Reddy v. Income- 27. In the present case, both the 61-72 tax Office, [2023] 156 taxmann.com proceedings i.e., the impugned

178 (TELANGANA): proceedings under section 148A of the Act, as well as the consequential notices under section 148 of the Act were issued by the local jurisdictional officer and not in the prescribed faceless manner. The order under section 148A(d) of the Act and the notices under section 148 of the Act are issued on 29-4-2022, i.e., after the "Faceless Jurisdiction of the Income- tax Authorities Scheme, 2022" and the "e-Assessment of Income Escaping Assessment Scheme, 2022" were introduced. Notice u/s 148 if seized material was being relied upon is invalid

5. After detailed discussion, the 10. Principal Commissioner of Income-tax 127-130 v. Renu Aggarwal ITAT has recorded the following [2023] 153taxmann.com579 (SC) findings of fact : "The above findings recorded by Arising out of order passed by High ld. CIT(A) are quite exhaustive Court of Allahabad in Pr. CIT v. Smt. whereby he has discussed the Renu Agarwal [2023] 153 taxmann.com basis on which the Assessing 578. Officer had made the additions. While allowing relief to the assessee, the ld. CIT(A) has specifically held that there is no adverse comment in the form of general and specific statement by the Pr. Officer of stock exchange or by the company whose shares were involved in these transactions and he held that Assessing Officer only quoted facts pertaining to various completely unrelated persons whose statement were recorded and on the basis of unfounded presumptions. He further held that the name of the appellants were neither quoted by any of such persons nor any material relating to the assessee was found at any place where investigation was done by the investigation Wing. The ld. CIT(A) relying on various orders of Lucknow Benches and other Benches has allowed relief to the assessee by placing reliance on the evidences filed by the assessee before Assessing

Officer. I do not find any adversity in the order of ld. CIT(A) specifically keeping in view the fact that Lucknow Benches in a number of cases after relying on the judgment of Hon'ble Delhi High Court in the case of Krishna Devi and others had allowed relief to various assessees."

11. Commissioner of Income Tax-I, New 12. However, counsel for the 131-133 respondent has taken us to the order of Central Revenue Building Statue Circle, Jaipur vs Smt. Pooja Agarwal, 1783, CIT(A) and also to the order of Tribunal and contended that in view of the Telepada. Jaipur, D.B. Income Tax Appeal No. 385 / 2011 finding reached, which was done through Stock Exchange and taking into consideration the revenue transactions, the addition made was deleted by the Tribunal observing as under:- “Contention of the AR is considered. One of the main reasons for not accepting the genuineness of the transactions declared by the appellant that at the time of survey the appellant in his statement denied having made any transactions in shares. However, subsequently the facts came on record that the appellant had transacted not only in the shares which are disputed but shares of various other companies like Satyam Computers, HCL, IPCL, BPCL and Tata Tea etc. Regarding the transactions in question various details like copy of contract note regarding purchase and sale of shares of Limtex and Konark Commerce & Ind. Ltd., assessee’s account with P.K. Agarwal & co. share broker, company’s master details from registrar of companies, Kolkata were filed. Copy of depository a/c or demat account with Alankrit Assignment Ltd., a subsidiary of NSDL was also filed which shows that the transactions were made through demat a/c. When the relevant documents are available the fact of transactions entered into cannot be denied simply on the ground that in his statement the appellant denied having made any transactions in shares. The payments and receipts are made through a/c payee cheques and the transactions are routed through Kolkata Stock Exchange. There is no evidence that the cash has gone back in appellants’s account. Prima facie the transaction which are supported by documents appear to be genuine transactions. The AO has discussed modus operandi in some sham transactions which were detected in the search case of B.C. Purohit Group. The AO has also stated

in the assessment order itself while discussing the modus operandi that accommodation entries of long term capital gain were purchased as long term capital gain either was exempted from tax or was taxable at a lower rate. As the appellant’s case is of short term capital gain, it does not exactly fall under that category of accommodation transactions. Further as per the report of DCIT, Central Circle-3 Sh. P.K. Agarwal was found to be an entry provider as stated by Sh. Pawan Purohit of B.C. Purihit and Co. group. The AR made submission before the AO that the fact was not correct as in the statement of Sh. Pawan Purohit there is no mention of Sh. P. K. Agarwal. It was also submitted that there was no mention of Sh. P. K. Agarwal in the order of Settlement Commission in the case of Sh. Sushil Kumar Purohit. Copy of the order of settlement commission was submitted. The AO has failed to counter the objections raised by the appellant during the assessment proceedings. Simply mentioning that these findings are in the appraisal report and appraisal report is made by the Investing Wing after considering all thematerial facts available on record does not help much. The AO has failed to prove through any independent inquiry or relying on some material that the transactions made by the appellant through share broker P.K. Agarwal were non-genuine or there was any adverse mention about the transaction in question in statement of Sh. Pawan Purohi. Simply because in the sham transactions bank a/c were opened with HDFC bank and the appellant has also received short term capital gain in his account with HDFC bank does not establish that the transaction made by the appellant were non genuine. Considering all these facts the share transactions made through Shri P.K. Agarwal cannot be held as non- genuine. Consequently denying the claim of short term capital gain made by the appellant before the AO is not approved. The AO is therefore, directed to accept claim of short term capital gain as shown by the appellant.”

12. The DCIT Circle-6 Jaipur vs Shri 2.7………………………………………… 134-176 Vigyan Lodha ITA No. …………The AO, other than making 169/JP/2022 generic observations, has not examined any of the brokers. Even no opportunity of cross examination was provided by the AO to the assessee during the assessment proceedings. The AO, in the entire assessment order has not made any reference to any single documentary evidence which can be said to be incriminating against the aseessee. Therefore, the mere suspicion cannot be a ground for treating transaction bogus in absence of any evidence or material on record by the AO. The assessee, by submitting evidences supporting the entire trail of transaction undertaken, has discharged the primary onus to substantiate his claim. However, AO has not produced any contrary evidences to controvert any of the evidences produced by the assessee. Moreover, these evidences, as submitted by assessee, are third party evidences which cannot be said to have been manipulated. Once the evidences produced by assessee was not prepared or beyond of manipulation then assessee is said to have discharged his onus to prove the transaction of purchase and sale of shares and consequential capital gain. It is noted that nowhere does the AO mention that cash from assessee was received and the cash was routed back to the assessee through the bank account. Considering about documentary evidences, it clearly outways the so called general evidences relied upon by AO. On the additions made by AO, assessee preferred appeal before The ld. CIT(A), NFAC who decided the appeal in favor of the assessee. The ld. CIT(A), NFAC noted the fact that there are no direct or even indirect substantial evidences for holding transactions to be bogus. It has been categorically held by ld. CIT(A), NFAC that additions on basis of suspicion cannot be made without converting the voluminous of evidences placed on record by the assessee.

8. The ld. AR of the assessee in addition to the above written submission so filed vehemently argued that the assessee while deciding the appeal of the assessee ld. CIT(A) has not dealt with the technical grounds raised by the assessee. Before ld. CIT(A), assessee contended that in his information he has [ even he has not provided that material to the assessee], he has not done any independent enquiry on the issue and has not recorded his satisfaction before the issue of notice of re-opening of the case but ld. CIT(A) without dealing with the technical flow in the order invoking the jurisdiction has decided the appeal on the merits of the issue and therefore the assessee challenges that order of the ld. CIT(A) on its legality. Ld. AR of the assessee referring to page 237 of the paper book wherein the order u/s. 148A(d) dated 25.07.2022 placed on record, this shows that the notice was issued in the new regime i.e. after 01.04.2022, ld. AO without proving that there was an assets and invoking the provision beyond 3 years is without jurisdictional and thus required to be quashed.

Even the ld. AO failed to prove with any tangible material or information / evidence suggesting escapement of income and therefore, revenue has to proceeding without authority of law. Ld. AR of the assessee also submitted that in this case the approval was required of Ld. Principal Chief Commissioner of Income Tax, whereas in the case of the assessee was obtained from the Principal Commissioner of Income Tax which is also a violation of the law and thereby the proceeding lacs jurisdiction. In support of this contention ld. AR relied upon the decision of Madaras High Court in also the ld. AO has not provided the information relied upon and failed to prove the escapement of income. Based on that argument ld. AR of the assessee submitted that the assessment made lac jurisdiction and required to be quashed.

9. The ld DR is heard who relied on the findings of the lower authorities and submitted written submission the same is extracted here in below:-.

2. Critical Findings Against the Assessee 2.1. Search Findings: The assessee’s transaction in YICL was flagged during a search and survey operation conducted in the case of Dutta and Tyagi Group, which revealed that YICL was a penny stock manipulated to benefit pre-decided beneficiaries. 2.2. Unverifiable Evidence: The assessee submitted a purchase bill from M/s Myra Apparels Pvt. Ltd.; however, the company failed to respond to notices issued

2.3. Findings of SEBI: SEBI’s order dated 04.09.2023 (WTM/AB/IVD/ID11/29124/23-24) confirms that YICL was a manipulated scrip used for accommodation entries, involving a pre-determined set of beneficiaries, including the assessee.

2.4. Circumstantial Evidence and Human Probabilities: The AO relied on circumstantial evidence and the principle of human probabilities, as upheld in Sumati Dayal vs. CIT (1995) 214 ITR 801 (SC), to conclude that the transaction was bogus.

2.5. Violation of Rule 46A: The CIT(A) admitted additional evidence such as invoices and confirmations without remanding the matter back to the AO for verification, violating Rule 46A of the Income Tax Rules

3. Distinctions from Judicial Precedents

3.1. Distinction from PCIT vs. Arnav Goyal

3.1.1. Key Facts in Arnav Goyal: • The Court ruled that there was no adverse material found directly against the assessee. • The name of the assessee did not appear in the investigation report or statements recorded during the enquiry. • SEBI findings did not implicate the assessee.

3.1.2. Distinction in the Present Case: • SEBI findings directly implicate YICL as a penny stock manipulated for accommodation entries, and the assessee is one of the beneficiaries of these transactions. • The assessee’s name appears in the investigation conducted during the search operation on the Dutta and Tyagi Group, and the AO established a clear link between the assessee and the manipulated scrip.

3.2. Distinction from PCIT vs. Renu Aggarwal

3.2.1. Key Facts in Renu Aggarwal: • The Court noted that no adverse material or specific evidence was found against the assessee. • The assessee’s transactions were not linked to any manipulated scrips identified by SEBI.

& 1228/JP/2024 Alok Kumar Jain vs. ACIT/DCIT 3.2.2. Distinction in the Present Case: • SEBI’s order dated 04.09.2023 explicitly mentions YICL as a manipulated scrip, and the assessee is directly linked to the scrip. • The AO has gathered sufficient circumstantial and direct evidence, including unverified invoices and non-compliance with notices under Section 133(6), to prove that the transactions were not genuine.

3.3. Application of PCIT vs. Swati Bajaj (2022) 446 ITR 56 (Cal)

3.3.1. The Hon’ble Calcutta High Court in PCIT vs. Swati Bajaj upheld the AO’s addition in penny stock cases, ruling that: • The onus lies on the assessee to prove the genuineness of transactions, particularly when dealing with penny stocks. • STT payment and banking channels do not establish genuineness, as these transactions are often layered to create a facade of legitimacy.

3.3.2. This principle squarely applies to the present case, as the assessee failed to substantiate the genuineness of the transactions, despite claiming compliance with STT norms and routing the transactions through banking channels.

3.3.3.Submission on Genuineness of Payment through Banking Channels, STT, Online Trading, and Reassessment under Section 148

I. Genuineness of Payment through Banking Channels, STT, and Online Trading:

It is a settled legal principle that the mere routing of transactions through banking channels, payment of Securities Transaction Tax (STT), and execution of transactions through online trading platforms do not conclusively establish the genuineness of a transaction under the Income Tax Act, 1961. The Hon’ble Courts have consistently held that the substance and true nature of the transactions must be scrutinized beyond procedural compliance.

II. Reassessment under Section 148:

Section 148 of the Income Tax Act, 1961 empowers the Assessing Officer to reopen an assessment if there is reason to believe that income has escaped assessment, even when the original assessment was completed under Section 143(3). This principle has been upheld by several courts, emphasizing the necessity of tangible material and the importance of avoiding mere change of opinion.

III. Sudden Rise in Share Price and Genuineness of Gains:

It is a well-established principle under the Income Tax Act, 1961, that a sudden and disproportionate rise in the share price of a company with a low balance sheet, no substantial business activity, or minimal operations, cannot be presumed as a genuine gain without adequate justification. The courts have consistently held that such circumstances warrant deeper scrutiny to determine the authenticity of the capital gains claimed. The Securities Appellate Tribunal (SAT) has also emphasized that companies with weak financials, poor fundamentals, and low operational activity exhibiting sudden price surges should be treated as potential cases of accommodation entries rather than genuine market performance.

IV. Burden of Proof:

The burden of proof lies on the assessee to substantiate the genuineness of transactions under the Income Tax Act. Mere documentation, such as banking channels, STT payment, and online trading, does not absolve the assessee from the responsibility of proving the identity, creditworthiness of the parties, and genuineness of the transaction. The courts have consistently held that the burden shifts back to the Revenue only when the assessee provides credible evidence. If the initial onus is not discharged by the assessee, the Revenue has the right to make additions based on surrounding circumstances and the test of human probabilities.

Judicial Precedents:

Sl. Case Name Citation Court Key Finding No. 1 Sudden rise in share price of penny stocks with minimal [2022] 139 taxmann.com Calcutta High PCIT v. Swati Bajaj business activity cannot be 352 Court treated as genuine capital gains. 2 Transactions through banking channels and STT PCIT v. NRA Iron & [2019] 103 taxmann.com payments without proving Supreme Court Steel Pvt. Ltd. 48 creditworthiness and genuineness fail Section 68 compliance. 3 Mere identification and routing funds through Sajan Dass & Sons [2003] 264 ITR 435 Delhi High Court banking channels do not v. CIT establish the genuineness of the gift. 4 Payments via cheques and Pr CIT v. Bikram [2017] 85 taxmann.com banking channels were Delhi High Court Singh 104 insufficient to prove transaction authenticity. 5 Securities and [2018] 13 SCC 753 Supreme Court STT payment and online

Exchange Board of trading did not prevent a India v. Rakhi finding of manipulative Trading Pvt. Ltd. practices. 6 Banking channels and STT PCIT v. M/s [2019] 108 taxmann.com payments alone were held Laxman Das Supreme Court 183 insufficient without proving Khandelwal the creditworthiness. 7 Banking channels alone do CIT v. N.R. [2013] 29 taxmann.com not establish genuineness if Delhi High Court Portfolio Pvt. Ltd. 291 creditworthiness is not demonstrated. 8 Share application money received through banking CIT v. Fair Finvest [2013] 357 ITR 146 Delhi High Court channels does not establish Ltd. the genuineness of transactions. 9 Mere banking channels and Pr. CIT v. Vaman STT payments were held [2020] 113 taxmann.com Bombay High International Pvt. insufficient without further 400 Court Ltd. proof of transaction authenticity. 10 Payments through banking channels do not CIT v. Neminath [2018] 97 taxmann.com Bombay High automatically establish Enterprises 402 Court genuineness where creditworthiness is unproven. 11 Mere price surge without credible news, corporate Deepak Nagar v. [2022] ITAT Delhi Bench ITAT Delhi actions, or market reputation DCIT raises doubt on gains' genuineness. 12 The principle of human Sumati Dayal v. probabilities applies, and [1995] 214 ITR 801 Supreme Court CIT unexplained cash credits can be added to income. 13 The burden of proof lies on CIT v. Durga the assessee to prove the [1971] 82 ITR 540 Supreme Court Prasad More genuineness of transactions and income sources.

VI. Conclusion:

Based on the above judicial precedents, it is respectfully submitted that:

• Transactions merely routed through banking channels, accompanied by STT payments and executed via online platforms, cannot be presumed genuine unless substantiated by proper evidence.

& 1228/JP/2024 Alok Kumar Jain vs. ACIT/DCIT • Reassessment under Section 148 is valid when supported by new tangible material suggesting income has escaped assessment. • A sudden and disproportionate rise in the share price of a company with minimal financial strength and business activity cannot be presumed genuine, especially when identified by SEBI as accommodation entries for capital gains. • The burden of proof lies on the assessee to establish the identity, creditworthiness, and genuineness of transactions.

4.1. Sumati Dayal vs. CIT (1995) 214 ITR 801 (SC): The Hon’ble Supreme Court emphasized the importance of applying the principle of human probabilities and held that circumstantial evidence can be relied upon to prove the true nature of transactions.

4.2. PCIT vs. Swati Bajaj (2022) 446 ITR 56 (Cal): Penny stock transactions are often a facade to launder unaccounted money. The burden of proof lies on the assessee to establish the genuineness of such transactions.

4.3. Suman Poddar vs. ITO (2019) 112 Taxmann.com 330 (SC): The Hon’ble Supreme Court upheld the AO’s addition, holding that penny stock transactions were bogus and meant to evade taxes.

4.4. McDowell & Co. Ltd. vs. CTO (1985) 154 ITR 148 (SC): The Supreme Court held that colorable devices cannot be part of tax planning. Bogus transactions designed to evade taxes are liable to be added back.

4.5. CIT vs. Durga Prasad More (1971) 82 ITR 540 (SC): The burden of proof lies on the assessee to prove the genuineness of transactions and income sources.

4.6. PCIT vs. NRA Iron & Steel Pvt. Ltd. [2019] 103 Taxmann.com 48 (SC): Transactions through banking channels and STT payments without proving creditworthiness and genuineness fail Section 68 compliance.

5. Prayer

In light of the above, the Revenue respectfully submits that:

5.1. The order of the CIT(A) be set aside. 5.2. The addition of ₹4,77,46,835/- made by the AO under Section 68 be restored.

5.3. Any other relief deemed fit by this Hon’ble Tribunal may be granted.” that jurisdiction has been acquired based on the decision of the apex court in the case of Ashish Agarwal and other case decided by the apex court in favor of the revenue and the necessary procedure has been followed in the case of the assessee and therefore, the jurisdiction has been correctly acquired in the case of the assessee. The assessee filed the writ petition before the Hon’ble Rajasthan High Court but has not been able to file the status and the ld. AO has based on the information that assessee’s writ neither been decided nor stay for the assessment was granted thereby legally proceeded to make the assessment which is in accordance with the provisions of the law and after following the due procedure. As regards the agricultural income claimed as exempt the assessee has not provided any information so she relied upon the finding recorded in the order of the ld.

CIT(A).

Apropos to this ground the related facts are that the assessee - appellant is an Individual filed his return of income on 10.10.2016 wherein processed u/s. 143(1)(a) of the Act. As per information, with the department that the script of M/s Yamini Investment Company Limited "YICL" was managed and controlled to benefit certain pre-decided persons. The assessee sold shares of the company YICL amounting to Rs. 4,77,46,835/-.

As the assessee had made the transaction, in the company, which was controlled to benefit certain pre-decided persons, being penny stock, is not genuine and the same was liable to be added to the income of the assessee which the assessee has claimed as exempt from tax for an amount of Rs. 4,65,16,639/- u/s. 10(38) of the Act. Based on that set of facts the case of the assessee was re-opened by issue of notice u/s. 147 of the Act on 09.04.2021 and the assessee vide letter dated 09.09.2021 provided the reasons for re-opening of the assessee. The issue of notice after 31.03.2021 because of pre-amended provision of section 148 of the Act, resulted into largescale litigation all over India. On that as per the direction of the Hon’ble Supreme Court the assessee was provided with the information and documents which were available vide letter dated 25.05.2022 and the assessee was requested to file its response. The assessee filed the response which was discussed in the order passed u/s 148A(d) of the Act dated 25.07.2022[ page 237]. Based on the available 148A(c) of the Act and thereby the notice u/s. 148 of the Act was issued to the assessee on 26.07.2022. The assessee also challenged issue notice u/s. 148 of the Act before the Jurisdictional High Court. As the High Court did not grant any stay or passed on the order the ld. AO proceeded by making the assessment based on the re-opening notice and thereby completed the assessment. The same was challenged before the ld. CIT(A) who has decided the appeal of the assessee on its merits on the part addition made by the ld. AO and thereby sustained the part addition made by the ld. AO. The assessee before us challenges the notice issued and thereby the jurisdiction assumed by the ld. AO.

As is evident, that first notice was issued on 09.04.2021 i.e. after the amendment made in the Act w.e.f. 01.04.2021 to follow the new regime of issuance of notice based on the direction of the apex court in the case of Gkn Driveshafts (India) Ltd’s case. On this issue all over India the litigation were made and on that aspect of the matter the apex court granted relief to the revenue while dealing with Ashish Agrwal’s case so as to continue with proceeds where notice had already been issued or afresh, where the law so provided. Thus, since the notice in this case has already been issued the ld.

AO proceeded further, taking recourse of the new provision of law. Having come the other part of the role of taking the approval before issue of notice even after the direction of the apex court in the case of Ashish Agarwal’s case.

The bench also takes into consideration the speech of Hon’ble Finance Minister introducing the new scheme of re-assessment. The Hon’ble Minister stated that; "Reduction in Time for Income-tax Proceedings 153. Honourable Speaker, presently, an assessment can be re-opened up to 6 years and in serious tax fraud cases for up to 10 years. As a result, taxpayers have to remain under uncertainty for a long time.

Thus, the new scheme and provisions have thus to be interpreted in line with legislative intent and mandate that they usher in certainty and ease of procedure. The assumption of jurisdiction of the officer in time must thus be tested considering the provision of law. Before going further in the matter since the assessee challenges that sanction to be obtained for invoking the jurisdiction was not correct and therefore, we refer to the provision of assessee and the same reads as under :

As is evident from the above provision of the Act the notice issued on 09.04.2021 was issued for the assessment year under consideration i.e. A.

Y. 2016-17 is after 3 years. The revenue argued that the Taxation and other laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (hereinafter referred to as 'TOLA') would protect the impugned proceedings and under the TOLA, time was extended till 30-6-2021 and the proceedings in this case have been initiated on 09.04.2021 which is within the extension provided and for that revenue relied on Section 3 of the TOLA read with Notification 10 of 2021 dated 1-3-2021 and Notification No. 38 of 2021 dated 27-4-2021. Thus, as per the contention of the revenue the notice was issued within the time extended and is in accordance with the direction of before us challenges that though the ld. AO acted within the time frame of TOLA but has not acquired the approval as mandated in law which is to be obtained from Principal Chief Commissioner and not Principal Commissioner ( page 242 of the paper book ) which was obtained. On this aspect of the matter the ld. AR of the assessee serviced the decision of Vodafone Idea Ltd. vs Deputy commissioner of Income Tax and Others [ 2024 ] 468 ITR 346 ( Bombay ), Balkrishna Barsha Sutar vs Income Tax Officer and Others [ 2024 ] 468 ITR 348 ( Bombay ) and IDFC Ltd V. DCIT [ 2023 ] 155 taxmann.com 602 (Madras).

The bench noted when the assessee argued on 26.12.2024 revenue sought time to verify the contention on legal issue raised. Same was granted and ultimately when the matter finally argued on 16.01.2025 ld. DR did not dispute the fact that in this case the approval was sought from the Principal Commissioner and not from the Principal Chief Commissioner as mandated in the law. Thus, respectfully following the provision of law and judicial precedent cited herein above we considered the legal ground raised by the assessee and thereby quashed the assessment made as without jurisdiction and bad in law. opportunity by ld. CIT(A) and Ground no. 5 raised deals with the merits of the addition sustained by the ld. CIT(A). Since we have quashed the assessment order on technical grounds these grounds raised by the assessee becomes academic at this stage.

Based on these observation appeal filed by the assessee in ITA no.

1191/JP/2024 is allowed.

13. Now, we take up the appeal filed by the revenue in wherein revenue has taken five grounds effectively. Since we have quashed jurisdiction of the ld. AO making the assessment, the grounds of appeal raised by the revenue become academic at this stage and the same are not required to be adjudicated.

In the result appeal filed by the assessee stands allowed and that of the revenue stands dismissed for statistical purpose.

Order pronounced in the open court on 24/03/2025.

Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member & 1228/JP/2024 Alok Kumar Jain vs. ACIT/DCIT Tk;iqj@Jaipur fnukad@Dated:- 24/03/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Alok Kumar Jain, Jaipur 2. izR;FkhZ@ The Respondent- ACIT/DCIT, Circle-06, Jaipur 3. vk;dj vk;qDr@ The ld CIT vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA Nos. 1191 & 1228/JP/2024) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत