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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)

Mehul Krishnkant Mehta, Mumbai vs. ACIT 29(2), Mumbai

In the result, the appeal filed by the assessee is allowed for statistical purposes

ITA 1654/MUM/2022[2015-16]Status: DisposedITAT Mumbai29 Dec 2022AY 2015-16

Bench: Shri Prashant Maharishi & Shri Pavan Kumar Gadalemehul Krishnakant Vs. Acit, Circle – 29(2) Mehta Room No. 202, C-10, Shop No. 24, Sharmila 2Nd Floor Bkc, Apartments, Model Bandra (E), Town, Mulund (W), Mumbai – 400051. Mumbai – 400080. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aacpm6130D Appellant .. Respondent Appellant By : Shri. Ravi Swarna.Ar Respondent By : Shri. Suresh Periasamy.Dr Date Of Hearing 13.10.2022 Date Of Pronouncement 30.12.2022 आदेश / O R D E R Per Pavan Kumar Gadale Jm: The Assessee Has Filed The Appeal Against The Order Passed By The National Faceless Appeal Centre (Nfac), Delhi / Cit(A) Passed U/S 250 Of The Act. The Assessee Has Raised The Fallowing Grounds Of Appeal:

For Appellant: Shri. Ravi Swarna.ARFor Respondent: Shri. Suresh Periasamy.DR
Section 10(38)Section 250Section 68

cash credit u/s. 68 of the Act and consequently denying exemption of long- term capital gain of Rs. 97,38,148/- claimed under section 10(38) of the Act on the alleged ground that purchase of shares of M/s. Swift IT Infrastructure & Services Ltd. (which later merged with and into ... cash credit u/s. 68 of the Act and consequently denying exemption of long- term capital gain of Rs. 97,38,148/- claimed under section 10(38) of the Act by relying on the findings of the search survey, inquiries conducted on brokers, operators and the entry providers. The Appellant therefore

Vipinlumar Sanklecha, Mumbai vs. ITO Ward 16 (3)(5), Mumbai

In the result, the appeal of the assessee is allowed

ITA 6612/MUM/2019[2011-12]Status: DisposedITAT Mumbai29 Dec 2022AY 2011-12

Bench: Shri Aby T. Varkey, Jm आयकर अपील सं/ I.T.A. No.6612/Mum/2019 (निर्धारण वर्ा / Assessment Years: 2011-12) Vipinkumar Sanklecha बिधम/ Ito, Ward-16(3)(5) Room No. 447, 4Th Floor, A/303, Bhattad Tower, Opp. Vs. Kora Kendra Ground, R. M. Aayakar Bhavan, M. K. Bhattad Road, Borivali (W), Road, Mumbai-400020. Mumbai-400092. स्थधयी लेखध सं./जीआइआर सं./Pan/Gir No. : Aayps5062N (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee By: Shri Ajay Singh Revenue By: Shri Mahender Ahuja सुनवाई की तारीख / Date Of Hearing: 21/11/2022 घोषणा की तारीख /Date Of Pronouncement: 29/12/2022 आदेश / O R D E R Per Aby T. Varkey, Jm: This Is An Appeal Preferred By The Assessee Against The Order Of The Ld. Commissioner Of Income Tax (Appeals)-07, Mumbai Dated 02.08.2019 For The Assessment Year 2011-12. 2. At The Outset, The Ld. Ar Drew Our Attention To Ground Nos. 1 & 2 Which Are The Legal Issues Raised By The Assessee Against The Action Of The Ao To Have Reopened The Assessment Without Satisfying The Condition Precedents As Laid Down U/S 147 Of The Income Tax Act, 1961 (Hereinafter “The Act”) As Well As For Not Following The Hon’Ble Supreme Court As Well The Hon’Ble Bombay High Court Decision Cited By Him. The Ground Nos. 1, 2 & 3.1 Reads As Under: - “1. The Id. Cit (A) Erred In Confirming The Reopening Of Assessment Without Appreciating That The Reopening Of The Assessment Is Bad In Law, Invalid & Liable To Be Quashed In As Much As:

For Appellant: Shri Ajay SinghFor Respondent: Shri Mahender Ahuja
Section 143Section 147Section 148Section 68

transactions for generating such bogus claims of LTCG. There is enough reason to believe that not only the claim of exemption under section 10(38) by you is prima facie bogus but by making such bogus claim you have clearly failed to disclose all material facts for determination of income