2025 (7) TMI 1106 - AT - Income Tax

Addition u/s 68 - exemption of long-term capital gains u/s. 10(38) denied - penny stock transactions - denial of principles of natural justice - information i.e. credible information; list of penny stock shares as per CBDT these were never provided to the assessee for representation of the case HELD THAT - It is a matter of common knowledge that all information which are collected against the assessee by the quasi-judicial authority need have to be provided to the assessee for his self-defence and submissions before the authority. That further from the point of view that Income-tax Act is within the purview of welfare legislation which are completely separate from penal legislation therefore in dispensing justice the principles of natural justice plays a core effect which has to be complied with by the authorities. Reverting to the facts on this issue in the present case before us as we have examined and observed there seems to be a shortfall regarding compliance of natural justice by the Revenue. Therefore we are of the considered view that the order of the ld. CIT(A)-NFAC needs to be set aside and remanded back to its file for denovo adjudication as per law. Appeal allowed for statistical purposes.

Summary

ISSUES:

• Whether the additions made under section 68 of the Income Tax Act, 1961, treating sale proceeds from penny stock shares as unexplained cash credit, are justified given the nature of transactions and evidence.
• Whether the principles of natural justice were complied with in reassessment proceedings, specifically regarding the provision of documents and information relied upon by the Department to the assessee.
• Whether reopening of assessment under section 147 of the Income Tax Act, 1961, was valid and supported by credible information.
• Applicability of section 68 in cases where the assessee claims exempt long-term capital gains and no books of account are maintained.
• Whether the transactions in penny stock shares were bona fide and governed by market principles or were artificially structured to evade tax.

RULINGS / HOLDINGS:

• On the nature of transactions, the court held that the sale proceeds of Rs. 2,08,33,750/- from penny stock shares were "non-genuine" and constituted "unexplained cash credit" under section 68, as the transactions were "artificially structured" and lacked commercial substance.
• Regarding natural justice, it was held that the Department failed to provide the assessee with copies of documents and "credible information" relied upon, violating the principles of natural justice; consequently, the matter was remanded for de novo adjudication with directions to furnish all relevant documents to the assessee.
• The reopening under section 147 was based on "credible information" relating to penny stock transactions and was validly initiated with prior approval, but procedural compliance in terms of natural justice was deficient.
• The court observed that section 68 applies only where sums are credited in books of account and remain unexplained; however, since the assessee claimed exempt LTCG and did not maintain books, the applicability of section 68 was contested but not decided on merits due to remand.
• The transactions involving penny stock shares were found to be part of a "modus operandi" involving "pre-arranged" and "closed circuit" transactions with price rigging and circular trading to create bogus LTCG and losses, thus not bona fide or governed by market conditions.

RATIONALE:

• The court applied the provisions of the Income Tax Act, 1961, notably sections 10(38), 68, 147, and 250(4) & (6), alongside investigation reports from the Directorate of Income-tax (Investigation), data from Bombay Stock Exchange, SEBI findings, and principles of natural justice under administrative law.
• The decision emphasized the necessity of compliance with natural justice, particularly the right to receive and respond to documents relied upon by the Department before passing adverse orders, reflecting a doctrinal insistence on procedural fairness in tax proceedings.
• The court recognized the established investigative findings revealing that penny stock transactions were manipulated through "operators," "entry providers," and "exit providers" to facilitate tax evasion via bogus LTCG and losses, thereby justifying scrutiny under section 68.
• There was no dissenting opinion recorded; the court remanded the matter for fresh adjudication to ensure procedural compliance without prejudging the substantive merits.