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2024 (3) TMI 1444 - HC - Income TaxAddition of sale proceeds from share transactions u/s 68 - transactions in penny stocks - HELD THAT - We notice that the transaction of the assessee was doubted by the authority on the basis of the report of the Investigating Wing Kolkata. It is pertinent to note at this stage that in furtherance to the aforesaid report SEBI has undertaken a detailed inquiry against M/s.Mishka Finance Trading Ltd. and in the said inquiry vide order dated 5.10.2017 the SEBI has not found any adversarial material of any violation of statute. Over and above admittedly the assessee has also furnished complete evidence including contract note of shares demat details details of bonus shares and those evidences have not been doubted by the authorities. The entire transaction was done by the assessee through the platform of BSE by paying necessary security transaction tax and the transaction was undertaken by the share brokers no such allegation was made against the said broker for indulging in any price manipulation. Decided against revenue.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court in this appeal under Section 260-A of the Income-Tax Act, 1961 were: (A) Whether the Income Tax Appellate Tribunal (ITAT) was justified in deleting the addition made under Section 68 of the Act on account of sale proceeds from share transactions involving penny stocks? (B) Whether the ITAT was correct in deleting the addition under Section 68 disallowing the claimed exemption of Long-Term Capital Gain (LTCG) under Section 10(38) of the Act arising from the share transactions? 2. ISSUE-WISE DETAILED ANALYSIS Issue A: Legitimacy of Deletion of Addition Under Section 68 Regarding Penny Stock Transactions Relevant Legal Framework and Precedents: Section 68 of the Income-Tax Act allows the tax authorities to treat unexplained cash credits as income if the assessee fails to satisfactorily explain the nature and source of such credits. The burden lies on the assessee to prove the genuineness of the transactions. Precedents cited by the Tribunal include rulings where the Hon'ble jurisdictional High Court held that if the assessee produces contract notes, demat account details, and bank statements evidencing share transactions, the Assessing Officer (AO) cannot treat such transactions as bogus or unexplained cash credits without cogent evidence to the contrary. Court's Interpretation and Reasoning: The Tribunal examined the suspicion cast by the AO based on an investigation report from the Kolkata Investigating Wing, which alleged that penny stock transactions were used to generate bogus LTCG and business losses. However, the Tribunal noted that the assessee had produced complete and credible evidence including contract notes, demat account details, and details of bonus shares. The Tribunal further observed that SEBI had conducted a thorough investigation into the company whose shares were transacted (M/s. Mishka Finance & Trading Ltd.) and found no adverse material indicating any violation. Key Evidence and Findings: The assessee's evidence included:
The AO and CIT(A) had doubted the genuineness of the transactions primarily on the basis of the Kolkata Investigation Wing's report and allegations of price manipulation and entry providers. However, the Tribunal found no direct adverse evidence against the assessee or the brokers involved. Application of Law to Facts: Given the comprehensive documentary evidence and the absence of any adverse findings by SEBI or the authorities against the assessee or brokers, the Tribunal applied the principle that suspicion alone cannot substitute for proof of wrongdoing. The Tribunal held that the AO was not justified in treating the LTCG as unexplained cash credit under Section 68. Treatment of Competing Arguments: The revenue's argument centered on the organized nature of penny stock transactions being used for bogus claims of LTCG and STCL, supported by investigation reports. The assessee countered with documentary evidence and the SEBI clearance. The Tribunal favored the latter, emphasizing the lack of any adverse material against the assessee and the brokers, and the fact that transactions were executed on the recognized stock exchange with payment of applicable taxes. Conclusion: The Tribunal rightly deleted the addition under Section 68 with respect to the sale proceeds from penny stock transactions, finding the transactions genuine and adequately substantiated. Issue B: Deletion of Addition Disallowing the Claimed Exemption of LTCG Under Section 10(38) Relevant Legal Framework and Precedents: Section 10(38) of the Income-Tax Act exempts LTCG arising from transfer of listed securities from tax, subject to conditions including payment of securities transaction tax (STT). The exemption is available only if the transaction is genuine and the assessee discharges the onus of proving the same. Court's Interpretation and Reasoning: The Tribunal observed that the assessee had sold shares through BSE and paid STT. No allegations were made against the brokers for price manipulation or irregularities. The Tribunal relied on precedents where courts held that if the assessee proves genuineness of transactions with supporting documents, the LTCG exemption under Section 10(38) cannot be denied. Key Evidence and Findings: The Tribunal noted the following:
Application of Law to Facts: The Tribunal applied the principle that exemption under Section 10(38) cannot be denied merely on suspicion without concrete evidence. Since the assessee had fulfilled all statutory requirements and produced credible evidence, the exemption claim was legitimate. Treatment of Competing Arguments: The revenue contended that the transactions were arranged and bogus, aimed at generating accommodation entries for exempt LTCG. The Tribunal rejected this contention in absence of any cogent evidence and in light of SEBI's clearance and documentary proof. Conclusion: The Tribunal rightly deleted the addition disallowing the exemption under Section 10(38), thereby allowing the assessee's claim of exempt LTCG. 3. SIGNIFICANT HOLDINGS The Court preserved and relied on the following crucial legal reasoning from the Tribunal's order: "Merely because there was allegation and investigation was done by SEBI against the company and assessee cannot be said to have enter into in genuine transactions. So far as assessee is concerned, she has no control over the activities of the brokers or price manipulation." "Assessee has furnished complete evidence including contract note of shares, demat details, detail of bonus shares. However, no adverse evidence was brought against such evidence. Nor the assessing officer made adverse comment on such evidences." "SEBI made a thorough inquiry against Mishka Finance & Trading Ltd. and vide order dated 05.10.2017 that no adverse materials were found in the investigation report with respect to prima facie violation." "Assessee made sale of shares through BSE and paid security transaction tax and there is no allegation against the share broker through whom assessee has made sales that they were indulging any price manipulation. Therefore, I do not find any justification in treating the LTCG as unexplained cash credit in absence of any cogent evidence." Core principles established include:
Final determinations on each issue were that the additions under Section 68 and the disallowance of exemption under Section 10(38) were rightly deleted by the Tribunal, and the revenue's appeal was dismissed for lack of substantial questions of law.
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