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2022 (12) TMI 1347 - ITAT KOLKATAUnexplained cash credit u/s. 68 - Bogus LTCG - penny stock Transaction - set off of short term capital loss from long term capital gain from the sale of shares - HELD THAT:- We find that the assessee has shown long term capital gain on sale of shares from M/s Unishire Urban Infra Ltd.and also short term capital loss from sale of shares of M/s SRK Industries Ltd. According to AO, both these shares are penny stocks. We find that the AO added the entire sale consideration realized from sale of shares of M/s Unishire Urban Infra Ltd. while the entire loss sustained on sale of shares of M/s SRK Industries ltd. was treated as bogus and no set off was allowed. In our considered view, though the case of the assessee falls within the ambit of the ratio laid down by the Hon’ble Calcutta High Court in the case of Swati Bajaj (2022 (6) TMI 670 - CALCUTTA HIGH COURT] that the gains on the penny stocks are taxed and no exemption is available u/s 10(38) of the Act however the long term capital gain has to be computed in totality on all the shares as a whole and should be brought to tax accordingly. In our considered view, the authorities below cannot be allowed to treat one transaction as income and reject on the other on the ground that it has incurred loss and is bogus and suspicious. Accordingly we set aside the order of Ld. CIT(A) and direct the AO to allow the set off of short term capital loss from long term capital gain from the sale of shares of M/s Unishire Urban Infra Ltd. and tax the net income from capital gain which is also in accordance with the provisions of Section 70(3) - Appeal of the assessee is allowed.
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