ITO -25(2)(3), MUMBAI vs. SANDEEP U.MEHTA, MUMBAI

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ITA 4735/MUM/2014Status: DisposedITAT Mumbai05 February 2018AY 2010-114 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The CIT(A) deleted the addition, holding that the assessee had made genuine investments in listed shares, supported by broker confirmations and payment of STT. The Tribunal upheld the CIT(A)'s order, finding no contravening material from the Revenue.

What were the facts?

The assessee claimed long-term capital gains (LTCG) on the sale of shares of Global Capital Market Ltd. as exempt. The Assessing Officer (AO) added the gain as unexplained cash credit due to an abnormal price increase in the shares within 18 months.

What were the issues?

Whether the long-term capital gains on sale of shares were genuine or a sham arrangement, and if the AO was justified in treating it as an unexplained cash credit.

Which sections of the Income-tax Act were involved?

Section 10(38),Section 68,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “E”, BENCH MUMBAI

Before: SHRI R.C.SHARMA, AM & SHRI RAM LAL NEGI, JM Shri Sandeep U Mehta

For Appellant: Shri Naresh Jain
For Respondent: Shri V. Justin, Shri Naresh Jain
Hearing: 09/11/2017Pronounced: 05/02/2018

आदेश / O R D E R PER R.C.SHARMA (A.M):

1.

This is an appeal filed by Revenue against the order of CIT(A)-35, Mumbai dated 19/03/2014 for A.Y.2010-11 in the matter of order passed u/s.143(3) of the Income Tax Act, 1961. 2. The following grounds have been taken by the Revenue:-

1. "On the facts and in the circumstances of the case, and in law, the Ld.CIT(A) erred in directing the AO to treat the income ot Rs.80,37,125/- earned on sale on shares ot M/s. Global Capital Market Ltd as Long Term Capital Gain without appreciating the fact that the price of shares have abnormally increased by 325% within a short span of 18 months indicating a fabricated sham arrangement."

Shri Sandeep U Mehta 2. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in holding that the assessee invested in a company listed in the BSE without considering the fact that the transaction of the assessee is a colourful device as the details provided by the BSE shows that* the scrips of the said company is operator driven stock creating controlled demand for-fictitious capital gain." 3. "The appellant prays that the order of the Ld. CIT(A) on the above grounds be set aside and that of the A.O be restored." 4. "The appellant craves leave to amend or alter any ground or add a new ground."

3.

Rival contentions have been heard and record perused.

4.

The brief facts of the case are that the assessee is an individual. During the year under consideration assessee has received remuneration and share of profit from the partnership firm M/s. Parmar Construction. The only issue involved in this case is about taxability of Long Term Capital Gain on sale of shares. The assessee in the Computation of income claimed, this being the Long Term Capital Gain on sale of shares as exempt u/s. 10(38). During the course of assessment proceedings the assessee specifically asked to furnish the working of the said capital gain alongwith supporting evidence such as copies of Brokers' Notes for sales and purchase of shares, D-Mat a/c. etc., In compliance, assessee furnished working of Capital Gain on sale of shares. On perusal of this working AO observed that out of total gain of Rs.80,16,818/- assessee earned long term capital gain on sale of share of Global Capital Market Ltd., for Rs.80,37,125/-, and after adjusting 'losses, on sale of other shares has declared a net profit of Rs. 80,16,818/-. It is also observed that assessee has earned major profit only in a single scrip

Shri Sandeep U Mehta namely-Global Capital Market Ltd. However, AO added the same u/s.68 being unexplained cash credit on the plea that there was abnormal raise in the price of shares within a period of 18 months. 5. By the impugned order, CIT(A) deleted the disallowance so made by the AO after observing as under:-

“I have gone through the submissions of the appellant and the contentions and findings of the AO. I find merit in the arguments advanced by the appellant" that the appellant gets advise for investment because he is otherwise engaged in the activity of construction and, therefore, he is dependent on advise of brokers and specialists for the purpose of investment. There is also merit in the argument advanced that the shares of Global Capital Market Ltd: are not the only shares that the appellant has invested in. The appellant has invested in 1,50,000/- other shares in. 10 different companies in which he had made investment (valued at Rs.42,96,798/- The appellant in .this case i.e. Global Capital Market Ltd. invested in a company- listed in the Bombay Stock Exchange; copy of the brokers note has been given; the broker has duly confirmed the transaction and the appellant has paid STT due on the said transaction. To this extent it cannot be said that the transaction is a mere sham and the mere fact of the increase in the value of shares in the present of all facts above cannot be sufficient to hold the transaction bogus. In the light of the above facts, I agree with the appellant that the said transaction should be treated as long term Capital gain.

6.

Ground Nos.5 &• 6 are consequential in nature and do not require separate adjudication.”

6. Against the above order of CIT(A), Revenue is in further appeal before us.

7.

We have considered rival contentions and carefully gone through the orders of the authorities below and found that detailed finding has been recorded by CIT(A) for arriving at the conclusion that assessee has made genuine investment in shares which was listed at the Bombay Stock

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