2017 (9) TMI 49 - HC - Income Tax

Disallowance of loss in trading of shares - Sham or fake transactions - Tribunal confirmed view of CIT(A) and deleted the addition - transactions are off market transactions - Held that - CIT(Appeals) found that the transactions were through Demat accounts. They were confirmed by the opposite parties and payments were made through proper banking channel. The entire issue therefore, revolves around appreciation of evidence on record. CIT(Appeals) and Tribunal having concurrently come to factual findings, no question of law arises. Counsel for the Revenue however, referred to the appeal memo and contended that in past SEBI had penalised the assessee for indulging into such off market transactions. Firstly, there is no reference to any such past deeds of the assessee in the order of assessment. Secondly, in any case, even as per the Revenue, the referred instance is relatable to earlier period. No substantial question of law.- Tax Appeal is dismissed Decided in favour of assessee.

Summary

Issues:
Appeal against the judgment of Income Tax Appellate Tribunal regarding the disallowance of loss in trading of shares of specified companies.

Analysis:
The primary issue in this case pertains to the disallowance of a loss claimed by the assessee in trading shares of four specified companies. The Assessing Officer initially deemed these transactions as sham, citing reasons such as being off-market, lack of genuineness, collusive nature, and other grounds. However, the CIT(Appeals) overturned this decision, emphasizing that the transactions appeared genuine. The CIT(Appeals) highlighted that the shares were delivered through demat accounts, payments were conducted via banking channels, confirmations were provided and not disputed, and market quotations supported the transaction prices. The CIT(Appeals) concluded that the transactions were real and not merely book entries, thereby deleting the addition of the disallowed loss.

The Tribunal upheld the CIT(Appeals)' decision, noting that all transactions were routed through demat accounts and executed at market rates. The Tribunal emphasized that off-market transactions at market rates do not inherently imply fraudulence. It further criticized the Assessing Officer for failing to provide substantial evidence to deem the transactions as sham or fake. The Tribunal highlighted the acceptance of profits from similar off-market transactions by the Assessing Officer, further supporting the genuineness of the losses incurred by the assessee in the regular course of business.

The crux of the matter lies in the evaluation of the evidence on record, with both the CIT(Appeals) and the Tribunal reaching factual conclusions in favor of the assessee. As the findings of both lower authorities align, there is no legal question to be addressed. The Revenue's argument regarding past penalties imposed by SEBI on the assessee for similar off-market transactions was dismissed due to lack of reference in the assessment order and its relevance to a prior period. Consequently, the Tax Appeal was dismissed based on the factual findings and lack of legal grounds for intervention.