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“Section 10(38)”

Section References (mined)Section 10Section 10(38)1,694 judgments

The decision most relied on for Section 10(38) is (Central)-1 v. NRA Iron & Steel (P) Ltd. (103 Taxmann.com 48), cited in 696 judgments on BharatTax.

Leading authorities on Section 10(38)

(Central)-1 v. NRA Iron & Steel (P) Ltd.
103 Taxmann.com 48 · 2019 · Supreme Court
696
citing judgments

When assessing cash credits, share capital, or loans, the assessee bears the onus to prove the identity, creditworthiness, and genuineness of transactions. This burden is not discharged merely by documentary evidence if field inquiries reveal accommodation entries or dealings with paper/shell companies.

PCIT v. Swati Bajaj
139 Taxmann.com 352 · 2022 · High Court
443
citing judgments

Tax authorities are entitled to examine surrounding circumstances and apply the test of human probabilities to determine the genuineness of long-term capital gains arising from the sale of manipulated penny stock, even if prima facie documents appear to support the transaction.

CIT v. Shyam R. Pawar
54 Taxmann.com 108 · 2015 · High Court
279
citing judgments

Transactions involving the purchase and sale of shares cannot be considered bogus where the assessee provides documentary evidence, unless the revenue brings substantial evidence on record to reject such proof. This principle is consistently applied in cases concerning claims of bogus long-term capital gains arising from penny stock transactions.

CIT v. Gopal Purohit
336 ITR 287 · 2011 · High Court
254
citing judgments

The gain from delivery-based share transactions, where shares are consistently treated as investments and valued at cost in the books, is assessable as capital gains and not business income. An assessee's consistent stand on classifying share transactions should generally be followed by the assessing officer in subsequent years.

Sanjay Bimalchand Jain v. PCIT-1, Nagpur
89 Taxmann.com 196 · 2018 · High Court
251
citing judgments

The exemption for long-term capital gains on share transactions is unavailable if the assessee fails to discharge the onus of proving the genuineness of gains arising from dubious share transactions designed to convert unaccounted income into tax-exempt capital gains. Courts will uphold an assessment based on the Revenue's evidence of price rigging or penny stock manipulation if the assessee cannot provide cogent evidence for the abnormal rise in share value.

PCIT v. Krishna Devi
126 Taxmann.com 80 · 2021 · High Court
249
citing judgments

The genuineness of share transactions, particularly those generating long-term capital gains, cannot be rejected solely based on general investigation reports, third-party statements, or a mere increase in share price, when the assessee provides comprehensive documentary evidence, without the Revenue bringing substantial evidence to the contrary.

CIT v. Jamnadevi Agarwal
328 ITR 656 · 2010 · High Court
230
citing judgments

When faced with allegations of bogus long-term capital gains from penny stocks, the Assessing Officer must discharge the onus of proving that the assessee's transactions were not genuine. The assessee can rely on the principle of preponderance of probability, and the Revenue must present substantial evidence to establish that the transactions were a colourable device or that the assessee was an entry operator.

Jai Steel (India) v. ACIT
259 CTR 281 · 2013 · High Court
224
citing judgments

Under Section 153A, for completed assessments (under Section 143(1) or 143(3)) where no incriminating material is found during a search under Section 132, the Assessing Officer cannot make additions to the income already assessed. Additions are only permissible if based on undisclosed income or assets discovered during the search.

Judgments citing Section 10(38)

Venerable Advertising Pvt. Ltd., Kolkata vs. PCIT, Kol-1, Kolkata

In the result, the appeal of the assessee stands allowed

ITA 459/KOL/2023[2018-19]Status: DisposedITAT Kolkata16 Jan 2024AY 2018-19

Bench: Shri Sanjay Garg & Shri Girish Agrawali.T.A. No.459/Kol/2023 Assessment Year: 2018-19 Venerable Advertising Pvt. Ltd....................…...……………....Appellant 6, Kali Krishna Tagore Street, Jorbagan, Kolkata- 700007. [Pan: Aaacv8673M] Vs. Pcit, Kolkata-1, Kolkata…..........................................…..…..... Respondent Appearances By: Shri Aayush Kedia, Ca, Appeared On Behalf Of The Appellant. Shri S. Datta, Cit-Dr, Appeared On Behalf Of The Respondent. Date Of Concluding The Hearing : November 30, 2023 Date Of Pronouncing The Order : January 16, 2024 आदेश / Order संजय गग", "या"यक सद"य "वारा / Per Sanjay Garg: The Present Appeal Has Been Preferred By The Assessee Against The Revision Order Dated 14.03.2023 Of The Principal Commissioner Of Income Tax, Kolkata [Hereinafter Referred To As ‘Pcit’] U/S 263 Of The Income Tax Act (Hereinafter Referred To As The ‘Act’). The Assessee In This Appeal Has Agitated Against The Action Of The Pr. Cit In Exercising His Revision Jurisdiction U/S 263 Of The Act & Thereby Directing The Assessing Officer To Frame The Assessment Afresh. 2. The Brief Facts Of The Case Are That The Assessee Vide Its Return Of Income For The Assessment Year Under Consideration I.E. A.Y 2018-19 Declared Total Income Of Rs.1,09,24,210/- Which Was Accepted By The Assessing Officer In The Assessment Carried Out U/S 143(3) Of The Act. However, Later On, The Ld. Pr. Cit In Exercising Of His Revision

Section 10(38)Section 143(3)Section 263Section 94(7)

आयकर अपील"य अ"धकरण, कोलकाता पीठ ‘बी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH KOLKATA "ी संजय गग

D.C.I.T., Circle-6(1), Kolkata vs. M/S Birla Corporation Ltd., Kolkata

In the result, the appeal of the revenue as well as cross-objection of the assessee are partly allowed

ITA 1964/KOL/2019[2015-16]Status: DisposedITAT Kolkata16 Jan 2024AY 2015-16

Bench: Shri Sanjay Garg & Shri Girish Agrawali.T.A. No.1964/Kol/2019 Assessment Year: 2015-16 Dcit, Circle-6(1), Kolkata…………….......................…...……………....Appellant Vs. M/S Birla Corporation Ltd…………...........…..........................…..…..... Respondent Birla Building, 9/1, R.N. Mukherjee Road, Kolkata – 700001. [Pan: Aabcb2075J] C.O. 39/Kol/2019 (A/O I.T.A. No.1964/Kol/2019) Assessment Year: 2015-16 M/S Birla Corporation Ltd…………...........….....................…..…..... Cross-Objector Birla Building, 9/1, R.N. Mukherjee Road, Kolkata – 700001. [Pan: Aabcb2075J] Vs Dcit, Circle-6(1), Kolkata…………….......................…...……………....Respondent Appearances By: Shri Abhijit Kundu, Cit-Dr, Advocate, Appeared On Behalf Of The Department. Shri J. P. Khaitan, Sr. Counsel, Appeared On Behalf Of The Assessee. Date Of Concluding The Hearing : October 18, 2023 Date Of Pronouncing The Order : January 16, 2024 आदेश / Order संजय गग", "या"यक सद"य "वारा / Per Sanjay Garg: The Present Appeal By The Revenue & The Corresponding Cross Objections By The Assessee Have Been Preferred Against The Order Dated 30.05.2019 Of The Commissioner Of Income Tax (Appeals)-22, Kolkata [Hereinafter Referred To As ‘Cit(A)’] Passed U/S 250 Of The Income Tax Act (Hereinafter Referred To As The ‘Act’). First, We Take Up Revenue’S Appeal Ita No.1964/Kol/2019. I.T.A. No.1964/Kol/2019 & C.O. 39/Kol/2019 M/S Birla Corporation Ltd

Section 115JSection 14ASection 250Section 80I

आयकर अपील"य अ"धकरण, कोलकाता पीठ ‘सी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH KOLKATA "ी संजय गग

Samrat Finvestors Private Limited., Kolkata vs. ITO, Ward- 10(2), Kolkata.

In the result, appeal of the assessee is allowed

ITA 840/KOL/2023[2014-15]Status: DisposedITAT Kolkata11 Jan 2024AY 2014-15

Bench: Shri Rajesh Kumar, Hon’Ble & Shri Sonjoy Sarma, Hon’Blei.T.A. No. 840/Kol/2023 Assessment Year: 2014-15 Samrat Finvestors Private Limited Income Tax Officer, Ward – 10(2), 20/1, Maharshi Debendra Vs Kolkata 2Nd Floor, Room No. 13A Kolkata - 700007 [Pan : Aadcs4698G] अपीलाथ"/ (Appellant) "" यथ"/ (Respondent) Assessee By : Shri Soumitra Choudhury, A/R Revenue By : Shri B.K. Singh, Jcit, Sr. D/R सुनवाई क" तारीख/Date Of Hearing : 14/12/2023 घोषणा क" तारीख /Date Of Pronouncement: 11/01/2024 आदेश/O R D E R Per Shri Rajesh Kumar: The Present Appeal Is Directed At The Instance Of The Assessee Against The Order Of The National Faceless Appeal Centre, Delhi, [Hereinafter The “Ld. Cit(A)”] Dt. 27/06/2023, Passed U/S 250 Of The Income Tax Act, 1961 (“The Act”) For The Assessment Year 2014-15. 2. The Assessee In The Instant Appeal Has Raised Two Effective Issues In The Various Grounds Before Us Which Are Summed Up As Under:- (I) That The Ld. Cit(A) Has Erred On Facts & In Law In Confirming The Disallowance Of Rs.3,98,50,208/- As Made By The Assessing Officer On Account Alleged Bogus Loss In Share Trading & In F&O Segment. (Ii) The Ld. Cit(A) Has Erred On Facts & In Law In Upholding The Addition Of Rs.11,58,944/- As Made By The Assessing

For Appellant: Shri Soumitra Choudhury, A/RFor Respondent: Shri B.K. Singh, JCIT, Sr. D/R
Section 133(6)Section 14ASection 250

impugned orders of the AO, CIT(A) and the ITAT, the Court finds that both the grounds viz., the claim for benefit of section 10(38) of the Act and denial of an opportunity to cross examine the entry providers, turned on facts. The ITAT was justified in accepting

Nalanda Builders Pvt. Ltd., Kolkata vs. D.C.I.T., Central Circle - 2(1), Kolkata

In the result the appeal of the assessee is allowed

ITA 763/KOL/2022[2013-2014]Status: DisposedITAT Kolkata11 Jan 2024AY 2013-2014

Bench: Shri Rajesh Kumar, Hon’Ble & Shri Sonjoy Sarma, Hon’Blei.T.A. No. 763/Kol/2022 Assessment Year: 2013-14 Nalanda Builders Pvt. Ltd. Dcit, Central Circle-2(1), Kolkata 5, Sree Charan Sarani Vs Bally Howrah – 711201 (West Bengal) [Pan : Aabcn7736Q] अपीलाथ"/ (Appellant) "" यथ"/ (Respondent) Assessee By : Shri Soumitra Choudhury, A/R Revenue By : Shri P.P. Barman, Addl. Cit, Sr. D/R सुनवाई क" तारीख/Date Of Hearing : 30/11/2023 घोषणा क" तारीख /Date Of Pronouncement: 11/01/2024 आदेश/O R D E R Per Shri Rajesh Kumar: The Present Appeal Is Directed At The Instance Of The Assessee Against The Order Of The National Faceless Appeal Centre, Delhi, [Hereinafter The “Ld. Cit(A)”] Dt. 23/11/2022, Passed U/S 250 Of The Income Tax Act, 1961 (“The Act”) For The Assessment Year 2013-14. 2. The Issues Raised In Ground Nos. 2 To 4 Is Against The Confirmation Of Addition As Made By The Assessing Officer On Account Of Difference Between The Value Taken By The Assessee & The Fair Market Value (Fmv) U/S 50C Of The Act. 3. The Facts In Brief Are That During The Year, The Assessee Sold Two Flats For An Aggregate Consideration Of Rs.3,00,00,000/- & Accordingly Addition Of Rs.3,26,37,314/- Was Made To The Income Of The Assessee. In 2

For Appellant: Shri Soumitra Choudhury, A/RFor Respondent: Shri P.P. Barman, Addl. CIT, Sr. D/R
Section 131Section 133(6)Section 250Section 50CSection 56(2)(x)

impugned orders of the AO, CIT(A) and the ITAT, the Court finds that both the grounds viz., the claim for benefit of section 10(38) of the Act and denial of an opportunity to cross examine the entry providers, turned on facts. The ITAT was justified in accepting