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2023 (9) TMI 1116 - AT - Income TaxAddition u/s 68 - unexplained cash credit for alleged bogus long-term capital gain - Penny stock transactions - HELD THAT:- Genuineness of the claim of exempt income u/s 10(38) of the Act in respect of long-term capital gain arising sale of equity shares from the listed companies, which were found to be the penny stock companies by both the lower authorities and the long-term capital gain so claimed found to be bogus in nature. We find that the said judgment of the Hon’ble Jurisdictional High Court in the case of Swati Bajaj & Others [2022 (6) TMI 670 - CALCUTTA HIGH COURT] is completely applicable on the facts of the instant case. So far as the reliance placed by the ld. A.R. on the decision of this Tribunal in the case of M/s. Gateway Financial Services Limited [2023 (7) TMI 743 - ITAT KOLKATA] we find that this Tribunal after considering the order of the Security & Exchange Board of India, in which one of the parties was the assessee dealt by this Tribunal and the SEBI after detailed investigation and considering the facts of the case exonerated the assessee from the charges leveled in the show-cause notice, which means that SEBI which controls the platform on which transaction of purchase and sale of equity shares is carried out, has specifically carried out the detailed investigation and the preponderance of probability was ruled out and the assessee was not found to be engaged in the manipulation of price of the alleged penny stock companies. Thus the facts of the case before us in the case of M/s. Gateway Financial Services Limited are totally distinguishable and cannot be applied in the facts of the case of the assessee in the instant appeal as no such order of the SEBI exonerating the assessee has been placed before us. Therefore, since no other binding precedence in favour of assessee is placed before us, we respectfully following the decision of this Tribunal as well as the judgment of the Hon’ble Jurisdictional High Court in the case of Swati Bajaj & Others (supra) find no infirmity in the orders of the ld. CIT(Appeals) and, thus, dismiss all the grounds raised by the assessee for A.Y. 2015-16. Appeal of the assessee is dismissed.
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