2018 (12) TMI 1880 - AT - Income Tax

Bogus LTCG - Denial of claim u/s.10(38) - HELD THAT - This is not a case where the ld. Assessing Officer has been able point out where the assessee has made a bogus claim of long term capital gains exempt u/s.10(38) - As perusal of the assessment order clearly shows Assessing Officer has only made allegation in respect of these two companies and the modus operandi of the bogus claim u/s.10(38) of the Act. The evidences clearly show that the transactions of purchase and sale of the shares by the assessee herein are through online transaction by paying STT. This is not a case for off-line purchase, nor is the case of direct purchase. Neither is the assessee s name coming out in the Investigation report, which has been received by the ld. AO from Directorate of Investigation, Kolkata. This being so, the claim of assessee cannot be disallowed merely on presumptions and the ld. Assessing Officer is directed to grant the assessee benefit of exemption u/s.10(38) of the Act as claimed in respect of long term capital gains generated by purchase and sale of shares of M/s.NCL Research Limited and M/s.RISA International as claimed by the assessee. - Decided in favour of assessee.

Summary

Issues:
Appeal against disallowance of exemption u/s.10(38) of the Act for long term capital gains on share transactions.

Analysis:
The appeals filed by different assessees were interlinked as they all involved the disallowance of exemption u/s.10(38) of the Act for long term capital gains on share transactions. The assessees had purchased shares through online transactions and claimed long term capital gains, but the Assessing Officer treated the transactions as non-genuine based on a report from the Directorate of Investigation. The assessee's transactions were not offline or direct purchases, and their names were not mentioned in the investigation reports. The Assessing Officer failed to point out any bogus claim by the assessees, leading the Tribunal to direct the grant of exemption u/s.10(38) of the Act for the long term capital gains on the share transactions.

The Revenue argued that the profits made on the share transactions were substantial and categorized them as penny stock. They relied on a previous Tribunal decision for similar directions. However, the Tribunal found that the Assessing Officer failed to provide evidence to support the claim that the transactions were bogus. The transactions were conducted online with STT paid, and the assessees were not connected to the companies under scrutiny. As a result, the Tribunal allowed all the appeals of the assessees, directing the Assessing Officer to grant the exemption u/s.10(38) of the Act for the long term capital gains on the share transactions.

The Tribunal's decision emphasized the lack of evidence to support the Assessing Officer's claim that the share transactions were bogus. The Tribunal highlighted that the transactions were conducted online with STT paid, and the assessees had no connection to the companies under scrutiny. The decision also pointed out that the Assessing Officer's allegations were based on presumptions rather than concrete evidence. Consequently, the Tribunal allowed the appeals of all the assessees, directing the Assessing Officer to grant the exemption u/s.10(38) of the Act for the long term capital gains on the share transactions.

Overall, the Tribunal's judgment focused on the lack of concrete evidence to support the Assessing Officer's disallowance of the exemption u/s.10(38) of the Act for the long term capital gains on the share transactions. The Tribunal emphasized that the transactions were legitimate, conducted online with STT paid, and the assessees had no involvement in any fraudulent activities. As a result, the Tribunal allowed all the appeals and directed the Assessing Officer to grant the exemption to the assessees.