2025 (7) TMI 889 - AT - Income Tax

Reopening of assessment - Reason to believe - Penny Stock transactions - HELD THAT - It is found that the reason as recorded by the AO was self-contradictory. When the assessee had disclosed the loss incurred in the penny stock transactions in the return of income the transactions were duly disclosed in the return and there was no escapement of income. There was no discussion in the reason as to how and why this loss was bogus. Therefore the basic condition to initiate the proceeding u/s 147 of the Act that there was an escapement of income is found missing in the reason as recorded by the AO. The fact recorded by the AO in his reason that the assessee did not offer income resulting from the transactions in the penny stock is itself incorrect as the assessee had disclosed loss incurred in the penny stock transactions in the return of income. In view of this fact the finding of the AO that it is established that the assess has not offered income resulting from the transaction in the above Penny Stock and hence such transactions remain unexplained on the failure on the part of the assessee by disclosing details of such transaction is not found correct. Assessee had not only disclosed the transactions but also shown the loss incurred in those transactions in the return of income. Therefore the finding given by the CIT(A) that there was no failure on the part of the assessee to disclose any information or material fact is found to be correct. Since the basic ingredient of escapement of income and the failure on the part of the assessee to disclose the material facts was not satisfied in the reason as recorded by the AO the CIT(A) was correct in holding that the reopening of the case was not proper. Therefore CIT(A) had rightly quashed the assessment order. We do not find anything wrong with the order of the CIT(A). Accordingly the decision of the CIT(A) is upheld and the appeal of the Revenue is dismissed. Short Term Capital Loss - as alleged assessee had obtained any accommodation entry by way of incurring Short Term Capital Loss in the share transactions - CIT(A) deleted addition - HELD THAT - There is no evidence on record that any cash was exchanged by the assessee for the loss incurred in the penny stock transactions. We don t find any cogent discussion or any evidence in the assessment order to treat the loss of the assessee as in-genuine. All the purchase and sale transactions were made through recognised stock exchange and were duly supported with contract notes and monetary details. There is no evidence to treat the Short Term Capital Loss incurred by the assessee as bogus. Merely because loss was incurred in the share transactions the same cannot be treated as bogus for this reason alone. AO had made the disallowance on mere surmise and conjecture and without bringing anything on record to establish that the Short Term Capital Loss incurred by the assessee in the share transactions was in-genuine. Therefore no infirmity in the order of the Ld. CIT(A). Deletion of addition in respect of Short Term Capital Loss by the Ld. CIT(A) is upheld. Revenue appeals dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

(a) Whether the reopening of assessment under Section 147 of the Income Tax Act, 1961 (the Act) for Assessment Year 2013-14 was valid, particularly whether the Assessing Officer (AO) had recorded valid reasons and obtained necessary approval before initiating proceedings, and whether there was escapement of income justifying such reopening.

(b) Whether the addition made by the AO on account of unaccounted income from alleged bogus transactions in penny stock shares was justified for A.Y. 2013-14.

(c) Whether the claim of short-term capital loss (STCL) of Rs. 31,58,863/- incurred by the assessee in transactions involving shares of a penny stock company for A.Y. 2014-15 was genuine or bogus, and whether the disallowance of such loss by the AO was justified.

(d) Whether the CIT(A) was correct in allowing the appeal of the assessee in both assessment years by quashing the reopening and deleting the additions.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) & (b): Validity of reopening assessment and addition for A.Y. 2013-14

Relevant legal framework and precedents: The reopening of assessment under Section 147 requires the AO to record a reason to believe that income has escaped assessment. Further, approval from the competent authority under Section 151 must be obtained before issuing notice under Section 148. The reopening must be based on tangible and credible material indicating escapement of income. Reliance is placed on the principles that reopening cannot be based on mere suspicion or borrowed satisfaction.

Court's interpretation and reasoning: The AO reopened the case based on information received from the Investigation Wing alleging suspicious transactions in shares of a penny stock company, M/s. JRI Industries & Infrastructure Ltd. The AO recorded reasons stating that the assessee had made transactions amounting to Rs. 1.02 crore but had not offered income from these transactions, and thus income had escaped assessment. The AO claimed to have obtained approval under Section 151, though this was not mentioned in the assessment order.

The CIT(A) found that the AO failed to mention the approval in the assessment order and that the reason recorded was self-contradictory. The assessee had disclosed a loss of Rs. 85.29 lakhs from the transactions in the return of income, indicating no escapement of income. The AO did not demonstrate how the loss was bogus or provide independent enquiry or investigation beyond relying on third-party information. The reopening was therefore held to be without valid reason and not in accordance with law.

Key evidence and findings: The assessee's return disclosed the transactions and the loss incurred. The AO relied solely on information from the Investigation Unit without independent verification. No credible or tangible material was brought on record to rebut the assessee's disclosure or to establish escapement of income.

Application of law to facts: Since the basic condition for reopening, i.e., escapement of income and failure to disclose material facts, was not satisfied, the reopening under Section 147 was invalid. The absence of approval from the competent authority in the assessment order further vitiated the reopening.

Treatment of competing arguments: The Revenue argued that the reopening was justified based on information from the Investigation Wing and that approval was obtained. The assessee contended that the reopening was invalid due to lack of tangible material and that all transactions and losses were disclosed. The Court upheld the assessee's contentions, emphasizing the need for tangible material and proper procedure.

Conclusions: The reopening was quashed as illegal. The addition on account of unaccounted income was annulled. The CIT(A)'s order allowing the appeal on this ground was upheld.

Issue (c): Validity of disallowance of short-term capital loss for A.Y. 2014-15

Relevant legal framework and precedents: Losses from genuine transactions entered into on recognized stock exchanges are allowable. Mere suspicion or receipt of information about rigging or accommodation entries must be supported by cogent evidence to treat losses as bogus. The burden lies on the AO to prove that the loss is not genuine.

Court's interpretation and reasoning: The AO disallowed the STCL of Rs. 31.58 lakhs incurred on shares of M/s. Shree Shaleen Textiles Limited, a penny stock, alleging that the transaction was bogus and intended to provide accommodation entries for LTCG/STCL. The AO pointed to the absence of explanation for the huge loss and alleged price rigging confirmed by SEBI.

The CIT(A) deleted the addition, finding that the assessee had furnished sufficient documentary evidence including bank statements, demat account details, and contract notes, establishing the genuineness of the transactions. The loss was attributed to market fluctuations, which is a normal risk in trading.

Key evidence and findings: The assessee's transactions were through recognized stock exchanges with supporting documentary evidence. There was no evidence of cash exchange or accommodation entry. No broker or third party corroborated the allegation of bogus transactions. The AO's findings were based on surmise and conjecture without material proof.

Application of law to facts: Without cogent evidence, the AO could not treat the STCL as bogus. Genuine losses incurred in market transactions are allowable. The CIT(A)'s deletion of the addition was legally sound.

Treatment of competing arguments: The Revenue relied on information from investigation and SEBI reports to allege rigging and accommodation entries. The assessee relied on documentary evidence and the principle that loss alone does not establish bogus transactions. The Court favored the assessee's position due to lack of material evidence from the Revenue.

Conclusions: The disallowance of STCL was not justified. The CIT(A)'s order deleting the addition was upheld.

3. SIGNIFICANT HOLDINGS

"Without specifically mentioning the reason to believe for reopening the case, only to verify the generation of income out of unexplained transaction, as it is observed from the assessment order, is not permissible for invoking provision of section 147 of the I.T. Act for Income escaped assessment."

"The AO is unable to bring any cogent material how he reaches the conclusion of ingenuine transaction entered by the appellant without rebutting the submission made by the appellant and the AO without any independent enquiry, investigation, verification regarding the said ingenuine transaction, solely depended upon the information received from the third party i.e initiation of proceeding done based on borrowed satisfaction."

"Since the basic ingredient of escapement of income and the failure on the part of the assessee to disclose the material facts, was not satisfied in the reason as recorded by the AO, the Ld. CIT(A) was correct in holding that the reopening of the case was not proper."

"Merely because loss was incurred in the share transactions, the same cannot be treated as bogus for this reason alone. The AO had made the disallowance on mere surmise and conjecture and without bringing anything on record to establish that the Short Term Capital Loss incurred by the assessee in the share transactions was in-genuine."

Core principles established include the necessity of tangible and credible material for reopening assessments under Section 147, the requirement of approval from competent authority under Section 151, and the principle that losses incurred in genuine market transactions cannot be disallowed merely on suspicion or surmise.

Final determinations: The reopening of assessment for A.Y. 2013-14 was invalid and the addition made was annulled; the disallowance of STCL for A.Y. 2014-15 was unjustified; both appeals filed by the Revenue were dismissed, affirming the orders of the CIT(A).