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TMI Blog2024 (6) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... ly ld. CIT (Appeals) has erred in confirming the action of the ld. Assessing Officer, for which long-term capital gain claimed by the assessee amounting to Rs.10,07,722/- was disallowed as exempt under section 10(38) of the Income Tax Act. 3. Brief facts of the case are that the assessee has filed his return of income on 12.09.2015 declaring total income of Rs.9,77,350/-. The case of the assessee was selected for scrutiny assessment and a notice under section 143(2) was issued and served upon the assessee. During the course of scrutiny assessment, it revealed to the ld. Assessing Officer that the assessee has purchased 6,000 of equity shares of Sulabh Engineers & Services Ltd. through the broker, namely Motilal Oswal Securities Limited @ R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f shares of the said company i.e. Sulabh Engineers and Services Limited have been accepted as genuine by Hon'ble Tribunal Benches i.e., Hon'ble Kolkata ITAT, Hon'ble Chennai ITAT and Hon'ble Lucknow ITAT. 1. Vasudha Jain vs ITO - Kolkata ITAT 2. Smt. Suman Kothari vs ITO - Kolkata ITAT 3. Deepak Kumar Agarwal vs ACIT - Kolkata ITAT 4. Smt. Nainimal Jain Anita vs ITO - Chennai ITAT 5. Asish Kumar Bose vs DCIT- Kolkata ITAT 6. Sanjay Kumar Agarwal (HUF) vs ITO - Kolkata ITAT 7. Uma Shanker Dhandhania vs ITO - Lucknow ITAT In a recent decision rendered by Hon'ble Calcutta High Court in the case of Pr.CIT vs Swati Bajaj fl39 taxmann.com 3521, the claim of LTCG earned on sale of shares of penny stock c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July, 2014 and August, 2014 the BSE Sensex was 26,300 and 26,674. And thus it is factually incorrect to assume that the gains have been made in a recessionary market. Similarly the NSE Index(NIFTY) also rose from 5985 in May, 2013(month of purchase) to 7,840 and 7,968 in July and August, 2014(month of sale). Copies of the BSE and NSE Sensex for the period April, 2013 to December, 2014 are enclosed in our earlier paperbook filed on 20- 09-2023 [Pg. 127-131]. It is further submitted that the share prices of Sublabh Engineers and Services Limited have risen from Rs. 60 in the month of April, 2013 to Rs. 240 in the month of November, 2014. A chart showing the month-wise share prices of the said company starting from April, 2013 to Nove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon'ble Supreme Court in the case of Padmasundara Rao vs State of Tamil Nadu 255 ITR 147(S.C.) wherein the Hon'ble Court held as under: "Precedents - Decision made on setting of facts of particular case - Reliance on earlier decision to be based on fitting factual situation." "Courts should not place reliance on decisions without discussing how the factual situation fits in with the fact situation of the decision on which reliance is placed" Further it is submitted that, the assessee has invested in the shares of Sulabh Engineers and Services Limited as an innocent and gullible investor. And there is no evidence and/or allegation of the assessee's involvement in the price manipulation of the scrip. Also, there is no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer had rightly been deleted. SLP filed by revenue against impugned order was to be dismissed" In the case of assessee also, there were no adverse comments either from the stock exchange or from the officials of the company. 6. His emphasize was that no doubt Sulabh Engineers & Services Ltd. is one of the Company in the list of 84 companies considered by the Hon'ble Jurisdictional High Court in the case of Swati Bajaj & Others (2022) 139 taxmann.com 352(Cal. But his case is distinguishable than the other cases. He submitted that the assessee has not earned any abnormal profit. He purchased the shares @Rs.74/- per share and sold them around Rs.240 to Rs.243/- per share. The average value enhanced in stock exchange on shares in this peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f from the treatment of other such investors. It cannot be accepted as fact to distinguish the judgment of the Hon'ble Jurisdictional High Court, simply for the reason that magnitude of profit is on the lower side to the assessee. As far as the other decisions are concerned, all these details have been duly considered by the Hon'ble Jurisdictional High Court and we cannot deviate ourselves to take a different view, particularly qua one company, which is part of the list of 84 companies, where investments were held by the Hon'ble High Court as bogus. The assessee's investment cannot become genuine because he earned a lesser amount of profit and at the cost of repetition, we again observe that magnitude of profit is not a decisive factor abou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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