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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)

ACIT 2(2)(1), Mumbai vs. Mahima Stocks Pvt. Ltd., Mumbai

In the result, the orders passed by the Income Tax Appellate Tribunal to the extent it is against the assessee are hereby quashed

ITA 2486/MUM/2021[2015-16]Status: DisposedITAT Mumbai11 Aug 2022AY 2015-16

Bench: Shri Pavan Kumar Gadale & Shri Amarjit Singhacit – 2(2)(1) Vs. M/S Mahima Stocks Room No. 545, 5Th Floor Pvt Ltd Aayakarbhavan, 1,Gaureshapartments, M.K.Road, Old Police Line, Mumbai – 400020. Andheri (E) Mumbai – 400069. Pan/Gir No. : Aaecm2983K Appellant .. Respondent Appellant By : Smt.Mahita Nair.Dr Respondent By : Shri.Vimal Punmiya.Ar Date Of Hearing 10.08.2022 Date Of Pronouncement 24.08.2022 आदेश / O R D E R Per Pavan Kumar Gadale Jm: The Revenue Has Filed The Appeal Against The Order Of The Cit(A)- National Faceless Appeal Centre (Nfac), Delhi Passed U/S143(3) & U/Sec250 Of The Act. The Revenue Has Raised The Following Grounds Of Appeal:

For Appellant: Smt.Mahita Nair.DRFor Respondent: Shri.Vimal Punmiya.AR
Section 115JSection 143(2)Section 143(3)Section 48

anything to deny the assessee the benefit of indexation and if any amount in excess of the amount of income in terms of Section 10(38) is credited to the Profit & Loss account, such excess amount is allowed to be deducted from the book profit to arrive at the adjusted ... present case, the amount credited to the Profit & Loss account is in excess of the amount of income in terms of Section 10(38) of the Act as the amount credited in the Profit & Loss account being the difference between the sale proceeds/ realizable value of investments and the original

Rupal Kashyap Mehta, Mumbai vs. ITO, Ward 21 (3)(1), Mumbai

In the result, the appeal filed by the assessee is allowed

ITA 1235/MUM/2019[2011-12]Status: DisposedITAT Mumbai28 Jul 2022AY 2011-12

Bench: Shri Amit Shukla, Jm & Shri S. Rifaur Rahman, Am 1. आयकरअपीलसं./ I.T.A. No. 1235/Mum/2019 (ननधधारणवर्ा / Assessment Year: 2011-12) Ito, Ward 21(3)(1), Rupal Kahyap Mehta Income Tax Office, 26/27, A Wing, Ahuja Towers, बनाम/ Piramal Chambers, Dr. Raja Bhau Desai Road, Vs. Ss Roa Marg, Parel, Prabhadevi, Mumbai-400 025 Mumbai-400 012 स्थधयीलेखधसं./जीआइआरसं./ Pan No. Agrpm5338E (अपीलधथी/Appellant) (प्रत्यथी / Respondent) : अपीलधथीकीओरसे/ Appellant By : Shri Vinod Kumar Bindal, Ld. Ar प्रत्यथीकीओरसे/Respondent By : Smt. Mahita Nair, Ld. Dr सुनवधईकीतधरीख/ : 04.07.2022 Date Of Hearing घोर्णधकीतधरीख / : 28.07.2022 Date Of Pronouncement

For Appellant: Shri Vinod Kumar Bindal, LdFor Respondent: Smt. Mahita Nair, Ld. DR
Section 10(38)Section 127Section 143(1)Section 143(2)Section 143(3)Section 147Section 148Section 153ASection 68

return of income for A. Y. 2011-12 by way of claim of exemption amounting to Rs.6,93,90,727 under section 10(38) of the Income Tax Act, 1961. The Directorate of Investigation has made available various confessional statements of entities involved in the transactions for generating such bogus ... assessee. After appraisal of these material on record, there is enough reason to believe that not only the claim of exemption under section 10(38) by the assessee is prima facie bogus but by making such bogus claim, the assessee has clearly failed to disclose all material facts for determination

It0 25(3)(4), Mumbai vs. Minal Bharat Patel, Mumbai

In the result, the appeal of the revenue is dismissed

ITA 5507/MUM/2018[2010-11]Status: DisposedITAT Mumbai14 Jun 2022AY 2010-11

Bench: Shri Aby T. Varkey, Jm & Shri S. Rifaur Rahman, Am आयकर अपील सं/ I.T.A. No.5507/Mum/2018 (निर्धारण वर्ा / Assessment Years: 2013-14) Ito-25(3)(4) बिधम/ Minal Bharat Patel Room No. 603, C-10, 6Th 602, Boston House, Suren Vs. Floor, Pratyakshkar Bhavan, Road, Andheri (E), Bandra Kurla Complex, Mumbai-400093. Bandra (E), Mumbai- 400093. स्थधयी लेखध सं./जीआइआर सं./Pan/Gir No. : Aacpp5126G (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee By: Shri Vasudev Ginde & Kumar Kale Revenue By: Shri Ram Krishn Kedia सुनवाई की तारीख / Date Of Hearing: 30/05/2022 घोषणा की तारीख /Date Of Pronouncement: 14/06/2022 आदेश / O R D E R Per Aby T. Varkey, Jm: This Is An Appeal Preferred By The Revenue Against The Order Of The Ld. Commissioner Of Income Tax (Appeals)-37, Mumbai Dated 16.07.2018 For The Assessment Year 2013-14. 2. Brief Facts Of The Case Are That The Assessee Is An Individual. The Return Of Income Was Filed On 31.07.2013 Declaring Total Income Of Rs.16,36,740/-. The Return Was Processed U/S 143(1) Of The Income Tax Act, 1961 (Hereinafter “The Act”). Subsequently, The Case Was Selected For Scrutiny By Issue Of Notice U/S 143(2) Of The Act. The Authorized Representative Appeared Before The Ao & Filed Details During The Assessment Proceedings. The Assessee Has Shown Short Term Capital Gain [Stcg] Of Rs.12,18,961/- & Long Term Capital Gain [Ltcg] Of Rs.17.01.85,391/- On Sale Of Shares. The Assessee Claimed Exemption U/S 10(38) Of The Act For The Entire Ltcg. Further, The Assessee Had Also Shown Ltcg Of Rs.1,00,31,538/- On Redemption

For Appellant: Shri Vasudev Ginde & Kumar KaleFor Respondent: Shri Ram Krishn Kedia
Section 10(38)Section 143(1)Section 143(2)

been made through recognized Stock Exchange with STT payment then the loss would not have been carried forward within the meaning of section 10(38). He held that the assessee used a colorable device to avoid tax in connivance with the trustees/beenficiaries by simply placing the shares in the hands ... view taken by the Assessing Officer. On second appeal, the Tribunal held as under;-. 12. Coming back to our context, we find that section 10(38) is an exemption provision. This exemption provision states that any income arising from transfer of equity shares etc., held as long-term capital asset

Sandeep P. Parikh, Mumbai vs. Pr. CIT -16, Mumbai

In the result, assessee’s appeal stands allowed

ITA 678/MUM/2021[2015-16]Status: DisposedITAT Mumbai28 Apr 2022AY 2015-16

Bench: Shri Prashant Maharishi & Shri Pavan Kumar Gadalesandeep P. Parikh Vs. Pr. Cit- 16 B-6, Anand Bhavan, Room No. 437, 4Th Bajaj Road, Vile Parle Floor, Aayakar Bhavan, (W), Mumbai – 400056 Mk Road, Mumbai – 400020. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aajpp8447R Appellant .. Respondent Appellant By : Shri. Pankaj Toprani.Ar Respondent By : Shri Ajay. K. Srivastava.Dr Date Of Hearing 24.03.2022 Date Of Pronouncement 20.04.2022 आदेश / O R D E R Per Pavan Kumar Gadale Jm: The Assessee Has Filed The Appeal Against The Order Of The Principle Commissioner Of Income Tax (Pr.Cit)-16, Mumbai Passed U/Sec 263 Of The Act, 1961. At The Time Of Hearing, The Ld.Ar Of The Assessee Submitted That There Is A Delay In Filing The Appeal Before The Hon’Ble Tribunal Due To Covid-19 Pandemic. The Assessee Has Filed An Affidavit For Condonation Of Sandeep P. Parikh, Mumbai. Delay & We Find The Facts Mentioned In The Affidavit Are Reasonable & Acceptable. The Ld.Dr Has No Specific Objections. Accordingly, We Condone The Delay & Admit The Appeal.The Assessee Has Raised The Following Grounds Of Appeal:

For Appellant: Shri. Pankaj Toprani.ARFor Respondent: Shri Ajay. K. Srivastava.DR
Section 143(1)Section 143(2)Section 143(3)Section 263Section 28

IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL