2019 (7) TMI 529 - AT - Income Tax

Bogus LTCG - penny stock - Addition u/s 68 - exemption u/s 10(38) denied - HELD THAT - We note that the assessee has purchased the shares through online through registered brokers and sold the same also in the Bombay Stock Exchange through the registered brokers and the shares were duly dematerialized and the purchase/sale consideration was through the banking channel. We note that the Tribunal had the occasion to consider the claim of the assessee in the same scrips (M/s. TTML) in a similar case that of ROHIT JALAN VERSUS ITO, 2019 (5) TMI 1377 - ITAT KOLKATA wherein the Tribunal allowed the claim holding that M/s. TTML scrips are not bogus and it was a genuine scrip. Tribunal (supra) relied on the decisions of the Hon ble Supreme Court in the case of Andaman Timber Industries 2005 (3) TMI 763 - SC ORDER and considering the facts in totality, the claim of the assessee cannot be denied on the basis of presumption and surmises in respect of penny stock by disregarding the direct evidences on record relating to the sale/purchase transactions in shares supported by broker s contract notes, confirmation of receipt of sale proceeds through regular banking channels and the demat account. Accordingly, directed the A.O. to treat the gains arising out of the sale of shares under the head capital gains- Short Term or Long Term as the case may be. The transactions were all through account payee cheques and reflected in the books of accounts. The purchase of shares and the sale of shares were also reflected in Demat account statements. The sale of shares suffered STT, brokerage etc. In the facts and circumstances of the case, it cannot be held that the transactions were bogus - Decided in favour of assessee.

Summary

Issues Involved:
1. Disallowance of Long Term Capital Gain (LTCG) claim under Section 10(38) of the Income Tax Act.
2. Addition of sale consideration under Section 68 of the Income Tax Act.
3. Confirmation of unexplained expenditure towards commission charges.

Issue-wise Detailed Analysis:

1. Disallowance of LTCG Claim under Section 10(38):
The main grievance of the assessee was the disallowance of the LTCG claim of ?12,57,809/- on the sale of shares of M/s Tuni Textiles & Mills Ltd. (TTML) by the Assessing Officer (AO), which was confirmed by the Commissioner of Income Tax (Appeals) [CIT(A)]. The AO's disallowance was based on an investigation by the Directorate of Investigation, Kolkata, which identified TTML as one of the 84 penny stock companies used for generating bogus LTCG. The AO noted a bell-shaped trading pattern and lack of financial credentials of TTML, indicating it was used for providing bogus LTCG. However, the Tribunal found that the assessee had purchased the shares online through a registered broker, M/s GCM Securities Ltd., and sold them through the Bombay Stock Exchange. The transactions were supported by contract notes, bank statements, and demat statements, proving the genuineness of the transactions. The Tribunal also referred to a similar case, Rohit Jalan vs ITO, where the LTCG claim on TTML shares was allowed, establishing that TTML scrips were not bogus.

2. Addition of Sale Consideration under Section 68:
The AO added the entire sale consideration of ?14,34,300/- under Section 68, treating it as unexplained cash credit. The Tribunal noted that the assessee had provided all necessary documents, including contract notes, bank statements, and demat statements, to substantiate the transactions. The Tribunal emphasized that once the assessee had discharged its onus by providing these documents, the burden shifted to the AO to bring on record any material to prove the transactions were bogus. The Tribunal found no such material evidence was provided by the AO. The Tribunal also cited several judicial precedents, including the Hon'ble Supreme Court's rulings, which held that suspicion, however strong, cannot take the place of legal evidence. The Tribunal concluded that the AO's addition under Section 68 was not justified.

3. Confirmation of Unexplained Expenditure towards Commission Charges:
The AO had also added ?1,17,791/- as unexplained expenditure towards commission charges for the sale of shares by the operator. The Tribunal, having already held that the LTCG transactions were genuine, directed the deletion of this addition as well. The Tribunal reiterated that the transactions were supported by documentary evidence, and there was no material to suggest that the assessee had incurred any such commission charges.

Conclusion:
The Tribunal allowed the appeal of the assessee, setting aside the order of the CIT(A) and directing the AO to delete the additions made under Sections 68 and 69C of the Income Tax Act. The Tribunal's decision was based on the genuineness of the transactions as evidenced by the documents provided by the assessee and the lack of any incriminating material against the assessee. The Tribunal emphasized the importance of adhering to legal evidence and not making additions based on suspicion or conjecture.