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2018 (11) TMI 1489 - AT - Income TaxDisallowance of exemption claimed u/s.10(38) - Long Term Capital Gain on sale of listed equity shares - Held that - Nowhere the evidences filed by the assessee has been rebutted or any inquiry whatsoever has been conducted by the Assessing Officer or by the CIT(A) to prove that assessee was involved in any clandestine manner for routing its own unaccounted money. If the assessee has filed the entire evidences relating to purchase which is mostly through cheque shown in the earlier years and also filed all the details of sale transactions and the shares which have been routed through Demat account and sold through stock exchange on a quoted price on that date, then onus shifts upon the Department to prove that all these evidences are only make believe documents and certain minimal inquiry is required to rebut all these evidences. As stated above, nowhere it has been found that assessee was in any manner found to be 10 beneficiary of any accommodation entry under any inquiry or investigation. Once all these transactions are duly proved by trading from stock exchange, then to hold the sale of shares as unexplained credit or as unexplained money cannot be upheld. Accordingly, we hold that the money credited in the account of the assessee is from the sale of shares and accordingly benefit of Long Term Capital Gain on sale of such listed equity shares have to be given - Appeal of the assessee is allowed.
Issues Involved:
1. Disallowance of exemption claimed under Section 10(38) for Long Term Capital Gain (LTCG) on the sale of listed equity shares. 2. Treatment of sale consideration as unexplained money under Section 69A. 3. Genuineness of transactions and evidence supporting the purchase and sale of shares. 4. Reliance on Investigation Wing reports and SEBI regulations. Issue-wise Detailed Analysis: 1. Disallowance of Exemption Claimed Under Section 10(38): The assessee claimed an exemption under Section 10(38) for ?24,60,241/- on LTCG from the sale of shares of M/s. CCL International Ltd. The Assessing Officer (AO) observed that the shares were purchased at ?16.30 per share and sold at ?87 per share, indicating a significant price rise. The AO inferred that the price rise was unrelated to market fundamentals and suspected the transaction to be bogus. The CIT (A) confirmed the addition, stating that no evidence supported the genuineness of the purchase price and that M/s. CCL International Ltd. was identified as a penny stock by the DIT (Investigation) Kolkata. 2. Treatment of Sale Consideration as Unexplained Money Under Section 69A: The AO added the entire sale consideration of ?26,05,548/- under Section 69A, implying it was unexplained money. The CIT (A) partially confirmed this, adjusting the addition to ?24,42,548/- (sale consideration minus the purchase price) under Section 69A read with Section 115BBE. The AO's conclusion was based on the modus operandi of accommodation entries for bogus LTCG, despite no direct evidence against the assessee. 3. Genuineness of Transactions and Evidence Supporting the Purchase and Sale of Shares: The assessee provided substantial evidence supporting the transactions, including contract notes, STT payment, electronic receipt of consideration, and Demat account statements. The Tribunal noted that the shares were purchased through a cheque, reflected in the bank account, and sold through the Bombay Stock Exchange. The AO and CIT (A) failed to provide any material evidence or conduct inquiries to rebut the assessee's evidence, leading to the Tribunal's conclusion that the transactions were genuine. 4. Reliance on Investigation Wing Reports and SEBI Regulations: The AO referenced the Investigation Wing's report and SEBI regulations to argue that the shares were traded in violation of guidelines. However, the Tribunal found no material evidence of the assessee being a beneficiary of bogus transactions or any SEBI action against M/s. CCL International Ltd. Additionally, the Tribunal noted that similar transactions were accepted in scrutiny proceedings for other assessees. Separate Judgment for Mukta Gupta: In the case of Mukta Gupta, similar facts were observed. The JCIT directed the AO to accept the transaction as genuine, noting that the shares were purchased through an account payee cheque, reflected in the Demat account, and sold through a SEBI-registered broker. The JCIT's direction clinched the issue in favor of the assessee, leading to the deletion of the addition made by the AO. Conclusion: The Tribunal allowed the appeals of both assessees, concluding that the transactions were genuine and the benefit of LTCG under Section 10(38) should be given. The additions made by the AO under Section 69A were deleted, as there was no material evidence to prove the transactions were bogus. Order Pronounced: The appeals were allowed, and the order was pronounced in the open Court on 26th November 2018.
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