Section 10(38) of the Income Tax Act

Income-tax Act, 2025: s.11

Section 10(38) falls under section 10 of the Income-tax Act, 1961, which corresponds to section 11 (Incomes not included in total income) of the Income-tax Act, 2025.

Read section 11 of the 2025 Act

Correspondence checked against the ICAI tabular mapping of the two Acts and the BharatTax.co section commentary.

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 of the 3,113 judgments on BharatTax that turn on this section.

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.

P.V. Doshi v. CIT
113 ITR 22 · 1978 · High Court
179
citing judgments

The lack of jurisdiction to initiate reassessment proceedings under Section 147/148 cannot be waived and can be challenged at a later stage, even if not raised initially. An invalid reassessment due to such jurisdictional defects cannot sustain subsequent penalty proceedings.

CIT v. J.H. Gotla
156 ITR 323 · 1985 · Supreme Court
176
citing judgments

The Supreme Court holds that for income tax purposes, the term 'income' includes 'loss,' allowing for the set-off of a spouse's or minor child's business losses when their income is clubbed with the assessee. This decision emphasizes interpreting tax statutes, especially benevolent provisions, by considering the legislative scheme over a strict literal construction.

Judgments on Section 10(38)

Income Tax Officer 25(2)(3), Mumbai vs. Damyanti Ashwin Patel, Mumbai

In the result, the appeal filed by the revenue is hereby ordered to be dismissed

ITA 5450/MUM/2017[2012-13]Status: DisposedITAT Mumbai24 Jun 2019AY 2012-13

Bench: Shri Shamim Yahya, Am & Shri Amarjit Singh, Jm आयकर अपील सं/ I.T.A. No.5450/Mum/2017 (निर्धारण वर्ा / Assessment Year: 2012-13) The Ito 25(2)(3) बिधम/ Damyanti Ashwin Patel R. No.504, C-10, 5Th Floor, 201, Deo Neo Vikram, „B‟ Vs. Wing, 2Nd Floor, Sahakar Pratyakshakar Bhavan, Bandra Kurla Complex, Nagar Chs, Above Audi Car Bandra (E), Mumbai- Show Room, New Link 400051. Road, Andheri (W), Mumbai-400053. . स्थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aabpp2154K (अपीलाथी /Appellant) (प्रत्यथी / Respondent) .. Revenue By: Shri R. Sindhu (Sr. Ar) Assessee By: Shri V. G. Ginde/Shri Kumar Kale सुनवाई की तारीख / Date Of Hearing: 16/05/2019 घोषणा की तारीख /Date Of Pronouncement: 24/06/2019 आदेश / O R D E R Per Amarjit Singh, Jm: The Revenue Has Filed The Present Appeal Against The Order Dated 12.06.2017 Passed By The Commissioner Of Income Tax (Appeals) -37, Mumbai [Hereinafter Referred To As The “Cit(A)”] Relevant To The A.Y.2012- 13. 2. The Revenue Has Raised The Following Grounds: - A.Y.2012-13

For Appellant: Shri V. G. Ginde/Shri KumarFor Respondent: Shri R. Sindhu (Sr. AR)
Section 10(38)Section 143(1)Section 143(2)

Mukesh B. Sharma, Mumbai vs. ITO 11(3)(2), Mumbai

ITA 6249/MUM/2018[2014-15]Status: DisposedITAT Mumbai29 May 2019AY 2014-15

Bench: Shri C.N. Prasad & Shri M. Balaganeshshri Mukesh B Sharma Income Tax Officer-11(3)(2) Room No. 428, 4Th Floor Bldg. No. F, C202, Akshay Mittal Indl. Estate, 1St Floor Vs. Aayakar Bhavan Andheri Kurla Road Mumbai 400020 Andheri (E), Mumbai 400059 Pan – Aahps1995D Appellant Respondent Appellant By: Shri Rashmikant C. Modi Ms. Ketki Rajeshirke Respondent By: Shri D.G. Pansari Date Of Hearing: 08.04.2019 Date Of Pronouncement: 29.05.2019 O R D E R Per M. Balaganesh, Am The Appeal Filed By The Assessee Is Directed Against The Order Dated 30-07- 2018 Passed By Ld Cit(A)-36, Mumbai & It Relates To The Assessment Year 2014-15. 2. Though The Assessee Had Raised Various Grounds Of Appeal, We Find That The Effective Issue To Be Decided In This Appeal Is As To Whether The Ld Cita Was Justified In Upholding The Action Of The Ld Ao In Treating The Sale Consideration Of Shares Of Rs 7,88,77,854/- As Bogus & Consequentially Denying The Exemption Claimed By The Assessee U/S 10(38) Of The Act In The Facts & Circumstances Of The Case. The Interconnected Issue Involved Therein Is As To Whether The Ld Cita Was Justified In Confirming The Addition Made U/S 69C Of The Act In The Sum Of Rs.39,43,893/- Towards Commission On Sale Proceeds Of Shares In The Facts & Circumstances Of The Case.

For Appellant: Shri Rashmikant C. ModiFor Respondent: Shri D.G. Pansari
Section 10(38)Section 68Section 69C