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)

Mahaveer Ranka HUF, Navi Mumbai vs. Income Tax Officer, WD-28(2)(1), Navi Mumbai

In the result, appeal filed by the Assessee stands allowed

ITA 1001/MUM/2024[2013-14]Status: DisposedITAT Mumbai26 May 2025AY 2013-14

Bench: Shri Narender Kumar Choudhryshri Prabhash Shankarassessment Year: 2013-14 Mahaveer Ranka Huf Income Tax Officer Wd- Plot No-12, Sector-12A, 28(2)(1) Vashi, Vs. 4Th Floor, Tower No.6, Vashi Navi Mumbai-400705 Railway Station Building, Vashi, Navi, Mumbai- Pan: Aaihm0939A 400703 (Appellant) (Respondent) Present For: Assessee By : Shri Prakash Jhunjhunwala Revenue By : Shri Hemanshu Joshi, Sr Dr Date Of Hearing : 24.04.2025 Date Of Pronouncement : 26.05.2025 O R D E R Per : Narender Kumar Choudhry: This Appeal Has Been Preferred By The Assessee Against The Order Dated 16.02.2024, Impugned Herein, Passed By The National Faceless Appeal Centre (Nfac), Delhi/ U/S 250 Of The Income Tax Act, 1961 (In Short ‘The Act’) For The A.Y. 2013-14. 2. In The Instant Case, The Assessee Had Purchased 25000 Shares Of M/S. Unisys Softwares & Holdings Ltd. On A Consideration Of Rs.4,20,459/- @ Rs.17 On Dated 25.01.2010 Through Online Platform Of Bombay Stock Exchange. The Payment For Purchase Was Made On The Very Same Date Through Online Mechanism Of Bombay Stock Exchange. Subsequently, The Assessee Sold Such Shares On Dated 18.04.2012 On A Consideration Of Rs.51,62,671/- @ Rs.207 Approx. Through Online Platform Of Bombay Stock Exchange & Has Received The Sale Consideration Through Rtgs On 2

For Appellant: Shri Prakash JhunjhunwalaFor Respondent: Shri Hemanshu Joshi, Sr DR
Section 10(38)Section 250Section 68

Payal Sukhramani, Satna vs. ITO Ward-2, Satna

In the result, the appeal of the assessee is dismissed

ITA 95/JAB/2024[2012-13]Status: DisposedITAT Jabalpur22 May 2025AY 2012-13

Bench: Sh. Kul Bharat & Sh. Nikhil Choudharya.Y. 2012-13 Payal Sukhramani, Vs. Income Tax Officer, House No.128/3, First Floor, Satna Master Plan, Near Overbridge, Satna, Madhya Pradesh-485001 Pan:Bwdps3622L (Appellant) (Respondent) Assessee By: Sh. Rahul Bardia, Fca Revenue By: Sh. Alok Bhura, Sr. Dr Date Of Hearing: 20.05.2025 Date Of Pronouncement: 22.05.2025 O R D E R Per Nikhil Choudhary, A.M. This Is An Appeal Filed By The Assessee Against The Order Of The Ld. Cit(A), Nfac Under Section 250 Of The Income Tax Act, 1961, Dated 3.04.2024, Dismissing The Appeal Of The Assessee That Was Filed Against The Order Of The Ito, Ward-2, Stana Dated 9.12.2019. The Grounds Of Appeal Are As Under:- “1. That The Cit (A) Order Is Bad In Law, Facts Void Ab Initio & Without Jurisdiction. 2. That The Ld Cit Appeals Failed To Appreciate That The Sale Of Shares Was For A Consideration Of Rs 6,15,550 Whereas Addition Made For Rs 24,25,650/- By Mistake. The Assessee Made Submission Against Ground No.2 Regarding Clerical Mistake & Also Informed For Rectification Application Filed On Filed Has Been Rejected. 3. That The Ld Cit Appeals Erred In Sustaining Addition For Rs 24,25,650 U/S 68 Against Sale Of Shares Claimed As Exmpet U/S 10(38). 4. That The Ld Cit Appeals Erred In Invoking The Provisions Of Section 115Bbe Against Addition Made U/S 68 For Ay 2012-13. 5. That The Ld Cit Appeals Erred In Sustaining The Addition Of Rs 1,23,263/- Against Alleged Commission Payment For Transaction In Shares. 1 A.Y. 2012-13 Payal Sukhramani

For Appellant: Sh. Rahul Bardia, FCAFor Respondent: Sh. Alok Bhura, Sr. DR
Section 10(38)Section 115BSection 250Section 68