| COURT: | ITAT Mumbai |
| CORAM: | Mahavir Singh (JM), R. C. Sharma (AM) |
| SECTION(S): | 45, 48, 68 |
| GENRE: | Domestic Tax |
| CATCH WORDS: | Bogus purchases, Bogus Sales, capital gains, Undisclosed Income |
| COUNSEL: | Pramod Kumar Parida, Priya Bhalawal |
| DATE: | May 27, 2016 (Date of pronouncement) |
| DATE: | June 16, 2016 (Date of publication) |
| AY: | 2005-06 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 68: Long-term capital gains arising from transfer of penny stocks cannot be treated as bogus merely because SEBI has initiating an inquiry with regard to the Company & the broker if the shares are purchased from the exchange, payment is by cheque and delivery of shares is taken & given | |
The assessee had shown sale proceeds of shares in the scrip “Ramkrishna Fincap Ltd” as Long Term Capital Gain and claimed exemption under the Act. Further the assessee had claimed to have purchased this script at Rs.3.12 per share in the year 2003 and sold the same in the year 2005 for Rs.155.04 per share. Considering the above discussed facts and having regard to the investigation so done, these scrips were found to be penny stock and the capital gain declared was held to be only accommodation entries. Further, the broker M/s.Basamt Periwal and Co. through whom the transactions were effected had appeared as “DRI probing evasion by firms via jama kharchi” who was indulged in price manipulation through synchronized and cross deal in scrip of Ramkrishna Fincap P. ltd. Furthermore, it was also communicated that SEBI has passed an order dated 9.7.2009 regarding the irregularities and synchronized trades carried out in scrip of Ramkrishna Fincap Ltd. by the broker M/s.Basant Periwal & Co. In view of the above, the AO did not accept assessee’s claim of long term capital gain and added the same in assessee’s income However, the CIT(A) deleted the addition. On appeal by the department HELD dismissing the appeal:
The AO has treated the share transaction as bogus on the plea that SEBI has initiated investigation in respect of Ramkrishna Fincap Pvt. Ltd. The AO further stated that investigation revealed that transaction through M/s Basant Periwal and Co. on the floor of stock exchange was more than 83%. We found that as far as initiation of investigation of broker is concerned, the assessee is no way concerned with the activity of the broker. Detailed finding has been recorded by CIT(A) to the effect that assessee has made investment in shares which was purchased on the floor of stock exchange and not from M/s Basant Periwal and Co. Against purchases payment has been made by account payee cheque, delivery of shares were taken, contract of sale was also complete as per the Contract Act, therefore, the assessee is not concerned with any way of the broker. Nowhere the AO has alleged that the transaction by the assessee with these particular broker or share was bogus, merely because the investigation was done by SEBI against broker or his activity, assessee cannot be said to have entered into ingenuine transaction, insofar as assessee is not concerned with the activity of the broker and have no control over the same. We found that M/s Basant Periwal and Co. never stated any of the authority that transaction in M/s Ramkrishna Fincap Pvt. Ltd. on the floor of the stock exchange are ingenuine or mere accommodation entries. The CIT(A) after relying on the various decision of the coordinate bench, wherein on similar facts and circumstances, issue was decided in favour of the assessee, came to the conclusion that transaction entered by the assessee was genuine. Detailed finding recorded by CIT(A) at para 3 to 5 has not been controverted by the department by brining any positive material on record. Accordingly, we do not find any reason to interfere in the findings of CIT(A). Moreover, issue is also covered by the decision of jurisdictional High Court in the case of [2015] 54 taxmann.com 108 (Bombay)/[2015] 229 Taxman 256 (Bombay), wherein under similar facts and circumstances, transactions in shares were held to be genuine and addition made by AO was deleted. Respectfully following the same vis-à-vis findings recorded by CIT(A) which are as per material on record, we do not find any reason to interfere in the order of CIT(A).
Cases referred:
1. Mahesh Mundra Mumbai vs ITO 21(1)ITA No. 1176/Mum/2012
2. ITO ward 20(1) vs Naveen Gupta in ITA No 696 (Delhi) SOT 2006 94 Delhi
3. Mayur M Shah HUF Mumbai vs ITO 25(3) ITA No.2390/Mum/2013
4. ITO v Smt Kusumlata in ITA No. 387 105 TTJ (2006) 265 Jodhpur
5. Chandrakant Babulal Shah vs ITO 16(2)(4) ITA No.6108/Mum/2009
6. Dalpat Singh Choudhary vs ACIT (2012) 143 TTJ 500 (Jodhpur Trib)
7. ACIT v Shri Ravindra Kumar ToshnivallTA No. 5302/Mum/2008
8. Jafferali K Rallonse v DCIT Central 5 in ITA No. 68/Mum/2009
9. Mukesh R Marolia v Addl CIT 6 SOT 247
10. Mrs Rajini devi A. Chowdhary v ITO ITA No. 6455/M/07 Dated 30/04/2008
11. DCIT v Shri Pinakir L Shok in ITA No. 3030 & 3453/M/08 Dated 14/0712009
what kind of men are there in revenue is indeed sickening; in fact these kinds are not rare but it has become just routine meaning ‘harasments’ on taxpayers is obvious, of obvious reasons if not what,? could we say these revenue men really do not read very tax provisions correctly, if the tax laws are wrong why these revenue worthies cannot go back to ministry to rectify; if that kind of common sense is lacking why all these tax men be down graded as ‘D’ level govt servants; i do not think these fellows can ever be class A officers enjoying gazetted status, sorry what kind of finance ministry we have in india, we see some kind of great Modi doctrines, what kind of government we have on us, shame indeed, but for judiciary you would be ruined.
But these politicians do talk big but do all useless things affecting taxpayers; do you think you have a some meaningful government on you please. very sad.