MR.ANRAJ HIRALAL SHAH (HUF),MUMBAI vs. INCOME TAX OFFICER 19(1)(1), MUMBAI

The appeal of the assessee is directed against the order dated 04-05- 2018 passed by Ld CIT(A)-51, Mumbai and it relates to the assessment year 2014-15. The assessee is aggrieved by the decision of Ld CIT(A) in partially confirming addition relating sale of shares made by the AO rejecting the claim of capital gains.

The facts of the case are that the assessee filed his return of income declaring capital gains and income from other sources. The assessee had declared long term capital gain of Rs.8,40,497/ and claimed the same as exempt u/s 10(38) of the Act. The assessee had sold 2200 shares of M/s Sunrise Asian Ltd (formerly Santoshi Maa Tradelinks Ltd before amalgamation) for a value of Rs.9,73,927/- in May, 2013. The assessee had purchased the above said shares in April 2012 for a consideration of Rs.1,33,430/-. The AO received information from investigation wing that the trading in shares of Sunrise Asian Ltd falls under the category of suspicious long term capital gains on shares. Accordingly he reopened the assessment of the year under consideration. One of the directors of M/s Sunrise Asian Ltd had admitted before the revenue that the prices of shares have been rigged. The AO, after discussing the modus operandi adopted for booking long term capital gain by rigging the prices, came to the conclusion that the transactions of purchase and sale made by the assessee are not genuine. The assessee submitted that he had earned speculation profit in the financial year relevant to the AY 2013-14 and used the same for purchase of shares. The AO disbelieved the contract notes relating to speculation profit. Since there was unusual rise in the prices of shares of M/s Sunrise Asian Ltd, the AO took the view that the genuineness of transactions of sale is also in doubt. Accordingly he rejected the claim of capital gains and assessed the net sale consideration of Rs.9,73,927/- as income of the assessee u/s 68 of the Act. The AO also added 2% of the sale consideration as expenses incurred by the assessee in procuring long term capital gain entries.

The Ld CIT(A) gave partial relief by sustaining addition to the extent of net gains made by the assessee. In addition to the reasoning given by the AO, the Ld CIT(A) also observed that the speculation profit was earned by the assessee from some other broker, while the shares were claimed to have been purchased from M/s Eden Financial Services Ltd.

The Ld A.R submitted following points:- (a) The ld CIT(A) was not right in observing that the assessee had earned speculation profit from some other broker. Inviting our attention to the copies of financial statements furnished for AY 2013-

On the contrary, the Ld D.R submitted that the investigation wing of the department has unearthed huge racket of rigging of prices of the shares with the fraudulent motive of generating tax exempt capital gains. The revenue has identified suspicious share transactions and the shares of M/s Sunrise Asian Ltd were one of such shares. He submitted that the directors of the above said company has admitted the price rigging. Accordingly he submitted that the Ld CIT(A) was justified in confirming the addition.

The Ld A.R, in the rejoinder, submitted that the assessing officer has made the addition u/s 68 of the Act, while the assessee has offered the gain as long term capital gain. However, the AO has assessed entire sale consideration as income. He submitted that the Hon’ble Rajasthan High Court has upheld the order of Tribunal in deleting an identical addition in the case of CIT vs. Smt. Pooja Agarwal (D.B. Income tax Appeal No.385/2011 dated 11.09.2017), since the shares were transacted through Stock Exchange. He submitted that the assessee, in the instant case also, has transacted the purchase and sale transactions through stock exchange only. He further submitted that the assessee has purchased and sold shares of other companies also, which is evident from the d-mat statement.

I have heard rival contentions and perused the record. I notice that the AO has received information about suspicious share transactions and on the basis of the same; he has disbelieved the claim of long term capital gains. I notice that the assessee has purchased shares through a broker named M/s Eden Financial Services and sold shares through Intime Equities Ltd. Thus, I notice that the purchase and sale of shares have been carried out through two different brokers. It is not the case of the AO that both the share brokers referred above have been identified as tainted brokers involved in fraudulent transactions.

The assessee has earned speculation profit in the immediately preceding year through M/s Eden Financial Services also and the said profit has been used to purchase the shares of M/s Sunrise Asian Ltd. The assessee has offered the speculation profit for income tax purposes in the immediately preceding year and it has been accepted. Further the assessee has shown the purchase of impugned shares as investment in the Balance Sheet. Hence the purchase of shares has been accepted. Further the shares have been received in the D-mat account of the assessee and they have been sold through the D-mat account only. Hence the delivery of shares also stand proved. The AO has not brought any material on record to show that the assessee was part of fraudulent price rigging. Accordingly, in the absence of any evidence to implicate the assessee or to prove that the transactions are bogus, I am of the view that the capital gains declared by the assessee cannot be doubted with. In that view of the matter, the addition made towards expenses is not also sustainable.

Accordingly, I set aside the order passed by Ld CIT(A) on both the issues and direct the AO to delete both the additions.

In the result, the appeal of the assessee is allowed.