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Income Tax Appellate Tribunal, “A” BENCH: KOLKATA
Before: Shri Mahavir Singh, JM & Shri M. Balaganesh, AM]
M/s. Fullford Vinimay (P) Ltd. Vs. Income-tax Officer, Wd-7(4), Kolkata (Presently M/s. Adventz Securities Trading Pvt. Ltd.) (AAACF4474G) (Appellant) (Respondent) Date of hearing: 01.12.2015 Date of pronouncement: 03.02.2016 For the Appellant: Shri Ravi Tulsiyan, FCA For the Respondent: Shri Sujit Kr. Das, JCIT, Sr. DR ORDER
Per Shri Mahavir Singh, JM:
This appeal by assessee is arising out of order of CIT(A)-XXXII, Kolkata in Appeal No. 46/XXXII/11-12/R&T/7(4)Kol dated 01.01.2013. Assessment was framed by ITO, Wd-7(4), Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for AY 2005-06 vide its order dated 27.12.2007.
2. The only issue in this appeal of assessee is against the order of CIT(A) in confirming the action of AO disallowing the claim of short term capital gain/loss on purchase and sale of shares by treating the same as sham transaction. For this, assessee has raised following ground:-
”2. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in upholding the action of the AO in disallowing the claim of Short Term Capital Loss of Rs.15,38,783/- on genuine purchases and sales of shares authenticated by evidences and documents on record, simply on surmises and on the ground of surrounding circumstances by treating the transactions in shares as sham transactions.”
3. Briefly stated facts are that assessee is a Private Ltd. Company, engaged in the business of financing and investment. The AO during the course of assessment proceedings noticed that the assessee claimed to have purchased 15700 shares of Kwality Builders & Developers Ltd. @ Rs.108.20 for a sum of Rs.17,00,310/- on 24.09.2004. The assessee sold these shares as under: “15,300 shares @ 10.60 on 29.03.2005 & 400 shares @ 9.60 on 31.03.2005” The total sale realization was at Rs.1,61,527/-. Accordingly, the assessee claimed short term capital loss of Rs.15,38,783/-. The AO to verify the genuineness of the claim, notice u/s. 133(6) of the Act was issued to Calcutta Stock Exchange (CSE) and CSE vide Fullford Vinimay (P) Ltd., AY 2005-06 their reply dated 06.12.2007 informed that M/s. N. M. Lohia & Co., the alleged share broker through whom the transaction of purchase was conducted had not executed any trade in the shares of Kwality Builders & Developers Ltd. on 24.09.2004. Accordingly, the AO disallowed the loss by treating the purchase of shares of Kwality Builders & Developers Ltd. as sham transaction. Aggrieved, assessee preferred appeal before CIT(A) who also confirmed the action of AO by observing as under: “Considering the above facts and the material available before me I found that the agreement about real transactions takes place in secret and direct evidence about such discreet and direct evidence about such discreet transaction/agreement would be not available to the department in the normal circumstances during assessment proceedings. The result of this transaction was designed that in this transaction lesser taxes were to be paid by the appellant. An inference about the genuineness of apparent off market sale has to be drawn on the basis of the circumstances available on the record and having regard to the conduct of the appellant in making payment as well as other material on the record and the inference can reasonably be drawn that the date of purchase 24-09-2004 of above transaction is non-genuine and the entire transaction is a sham with predetermined result and ulterior motive to avoid payment of taxes. It is held that after considering the surrounding circumstances and applying the test of human probabilities it is rightly concluded that the appellant's claim about the date of purchase 24-09-2004 is false and the actual date is 21-03-2005. In the facts and circumstances where appellant has not been able to give any evidence except self serving statement of purchase of shares on 24-09- 2004, therefore, it is held that the shares should be presumed to be purchased on 22.3.2005; 24-03-2005 and 30-03-2005 and the loss shown to be incurred there on of Rs.15,38,783/- is disallowed as loss out of purchase of 15700 shares being a sham transaction accordingly. The addition made by the Assessing Officer is upheld. This ground of appeal is dismissed.” Aggrieved, now assessee is in second appeal before Tribunal.
4. We have heard rival submissions and gone through facts and circumstances of the case. The main argument of assessee before us was that the purchase of shares of Kwality Builders & Developers Ltd. as on 24.09.2004 of 15700 shares at a price of Rs.108.30 per share was though off market transaction but routed through a registered brokers M/s. N. M. Lohia & Co., SEBI Registration No. 1NB030051219. The total purchase was for a sum of Rs.17,00,310/-. According to assessee, the purchases even though off market transaction was then at a prevalent market price as per CSE where the scrip is listed. The assessee explained that these shares were sold to Shri Pradip Kr. Daga, the registered broker having SEBI Registration No. INB031036313. The total value of sale proceeds for these shares was at Rs.1,65,550/- and loss of Rs.15,34,760/- was claimed by the assessee as short term capital loss. The assessee claimed to have produced following documents before lower authorities in respect of purchase and sale of Fullford Vinimay (P) Ltd., AY 2005-06 the scrip of Kwality Builders & Developers Pvt. Ltd. at the prevailing market rate prevalent with the CSE. “1. Copy of the contract note issued by N.M.Lohia & Co. for purchase of shares of Kwality Builders & Developers Ltd. enclosed at Page 1 of the Paper book.
Copy of the contract notes issued by Pradeep Kumar Daga for sale of shares of Kwality Builders & Developers Ltd. enclosed at Page 2-3 of the Paper Book.
Copy of the Demat account held by the appellant with Zuari Investments Ltd. enclosed at Page 4-5 of the Paper Book.
Copy of the stock market quotations for the date of purchase and sale of shares enclosed at Page 6-24 of the Paper Book.” The assessee claimed that it has purchased the shares through off market transaction and sold them on the floor of the CSE and against this, the AO sought information relating to, both, the purchase and sale of shares from CSE u/s. 133(6) of the Act and CSE in conformity with the assessee’s contention informed that the purchase transactions were not carried out on the floor of the Exchange but sale transactions were executed on the CSE floor. In this regard it was explained that vide letter dated 10.12.2007 submitted to the AO that the purchases through the broker N.M. Lohia & Co. and not through CSE and confirmation of the broker was placed on record. The broker N. M. Lohia & Co. confirmed the off market purchase transaction as claimed by the assessee. The broker also submitted that purchase on 24.09.2004 of Kwality Builder & Developers Ltd.’s share were from Shri S. K. Tibrewal and sold to the assessee on the same date. It was explained that the payment of the said shares was received from the assessee on 21.03.2005 and in turn transferred the money to Shri S. K. Tibrewal on 23.03.2005. The main contention of the assessee was that the payment was made after six months from the date of purchase but before the end of the financial year. He explained that this was treated as outstanding for the six months from the payment is made. The assessee explained the delivery of shares through Demat account to the assessee that has taken place on 22.03.2005 of 14700 shares, on 24.03.2005 of 600 shares and on 30.03.2005 of 400 shares just before the date of sale. Ld. Counsel for the assessee explained that the entire premise of the AO for disallowance was that the CSE did not confirm the purchase transaction, the stock broker through whom the assessee has purchased did not appear, the payment was made after six months and delivery of shares to the demat account of the assessee just before the date of sale and also purchase of shares at the rate representing PE ratio of 154 times. But he explained that the AO did not point out any deficiency in the sale transactions. He explained that the AO ignored all the evidence of Fullford Vinimay (P) Ltd., AY 2005-06 purchase of shares produced by the assessee and doubted the purchase transaction. The sale transaction was not doubted. He explained that the purchase transactions were off market transactions and obviously there can be no record regarding these transactions with the Stock Exchange. The broker has filed written explanation before the AO admitting and confirming the purchase made by assessee of these shares.
We have gone through the details in entirety and found that the AO’s entire premise for treating the short term capital gain as bogus that the purchase is not genuine. The assessee has produced copy of contract note issued by N.M. Lohia & Co. for purchase of shares of Kwality Builders & Developers Ltd. by the assessee. The assessee also produced copy of demat account wherein shares were held and quotation of stock market for the date of purchase and date of sale of shares, which correlated with the purchase price and sale price of the assessee even though the purchase is through off market transaction. In such facts, Hon’ble Calcutta High Court in the case of CIT Vs. Carbo Industrial Holding Ltd. (2000) 244 ITR 422 (Cal) held as under: “The perusal of the details regarding the transaction of various shares reveals that the sale and purchase in fact was not on the same date, though on the date when the shares are received by the assessee. There are in fact four relevant dates-the date of contract, the date of receipt of the shares and payment, then a date of sale contract of those shares by the assessee and the payment received thereafter. These four stages are on different dates and not on the same date. Therefore, it cannot be accepted that the purchase and sale of the shares are on the same date. It is true that the transactions are with some brokers, but in share transactions, the purchase and sale are normally through some broker. Payment by the account payee cheque has not been disputed. Payment on purchase and sale and payment received by account payee cheque was on two different dates. If the share broker, even after issue of summons does not appear, for that reason, the claim of the assessee should not be denied, specially in the cases when the existence of broker is not in dispute, nor the payment is in dispute. Merely because some broker failed to appear, assessee should not be punished for the default of a broker and on mere suspicion the claim of assessee should not be denied. " Similarly, the coordinate Bench of this Tribunal in the case of DCIT Vs. Sunita Khemka, to 718/Kol/2011 dated 28.10.2015 exactly on identical facts has held as under: “6.2 The appellant has submitted all the original contract notes of sale and purchase, copies of the bills, bank statements in respect of the purchase and sale of shares. All payments were made and received through account payee cheques drawn by the concerned Stock Brokers of Calcutta Stock Exchange and duly recorded in the bank accounts and regular Books-of-A/cs. All the shares sold were transferred through Demat Account or handed over physically to concerned brokers. The price at which the shares have been sold is also published in the daily Quotation issued by the Calcutta Stock Exchange. The shares sold after 1st October’04 pertains to the assessment year 2005-06. Security Transaction tax has been deducted from the sale proceeds.
Fullford Vinimay (P) Ltd., AY 2005-06 6.3 The decisions of the Hon’ble Calcutta High Court in the case of CIT-VsCarbo Industrial Holdings Ltd (244 ITR 422) and CIT –Vs- Emerald Commercial Ltd (250 ITR 549) are also relevant to the issue where the Hon’ble Court has held that where the payments are made by Account Payee Cheques and the existence of the brokers is not disputed the assessee cannot be punished for the default of the brokers and share transactions cannot be held to be bogus. The Hon’ble ITAT, Kolkata in the case of Rajkumar Agarwal (ITA 1330/Kol/2007 dated 10/08/07) has held that when purchase and sale of shares were supported by proper Contract Notes, deliveries of shares were received through demat accounts maintained with various agencies, the shares to 718/Kol/2011-C-AM Smt. Sunita Khemka 6 were purchased and sold through recognised broker and the sale considerations were received by Account Payee Cheques, the transactions cannot be treated as bogus and the income so disclosed was assessable as LTCG. 6.4 In the assessment orders under consideration the AO has not considered any of these facts. He has treated the transactions as bogus only on the basis of the suspicion that the difference in purchase and sale price of these shares are unusually high. It is a settled law that assessment cannot be made on the basis of suspicion or surmise. The AO has not brought any material on record to support his finding that there has been collusion/connivance between the broker and the appellant for the introduction of its unaccounted money. In view of the decisions of Hon’ble Kolkata High Court and Hon’ble ITAT, Kolkata discussed supra, and also respectfully following the decision of Hon’ble ITAT, Kolkata dated 28.01.2010 in ITA No.901-905, Kol 2009 in the case of Sri Anil Kr. Khemka (husband of the appellant) I hold that the AO is not justified in treating the long term capital gain as bogus. I direct the AO to treat the long term capital gain as claimed by the appellant and tax them at the rates applicable for assessment years 2001-02 to 2003-04 and for assessment year 2005-06 exemption u/s. 10(38) should be allowed.” In view of the above facts and circumstances, evidences and precedents available, we are of the view that the purchase transaction in the case of the assessee is genuine. The assessee has produced complete evidence requires to substantiate the genuineness of the claim of the assessee in respect of purchase transaction. We find that the authorities below have erred in treating the purchase transaction as non-genuine or sham. Since the transaction was off market transaction, it could not be carried through CSE rather it is carried through registered broker which was confirmed. The payment was also made and shares were routed through demat account of the assessee. Even evidences clearly proves that the purchase transaction is genuine transaction and consequential loss cannot be denied. We order accordingly. The appeal of assessee is allowed.
In the result, the appeal of assessee is allowed.