2023 (1) TMI 31 - AT - Income Tax

Addition u/s 68 - Bogus LTCG on shares - penny stock purchases - exemption u/s 10(38) denied - HELD THAT - As relying on SUJATA AGARWAL 2022 (10) TMI 1142 - ITAT KOLKATA and SWATI BAJAJ 2022 (6) TMI 670 - CALCUTTA HIGH COURT the alleged long term capital gain has been earned by the assessees from dealing in penny stock companies and therefore, the transactions carried on are bogus in nature and thus, do not qualify for exemption u/s 10(38) of the Act. The finding of ld. CIT(A) in the instant two appeals needs no interference and the same is confirmed. - Decided against assessee.

Issues Involved:
1. Violation of principles of natural justice.
2. Addition of sale consideration as unexplained credit under Section 68 of the Income Tax Act.
3. Denial of exemption under Section 10(38) of the Income Tax Act for long-term capital gains.
4. Levy of interest under Sections 234A, 234B, and 234C of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Violation of Principles of Natural Justice:
The assessees argued that the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] violated the principles of natural justice by not providing sufficient and adequate opportunity to present their case. Specifically, the AO did not provide the sworn statements of various individuals or the findings of the Investigation Wing, which were relied upon for making the assessment. The Tribunal noted that the assessees did not respond to multiple notices and did not appear for hearings, leading to the decision being made based on available records and the submissions of the Departmental Representative (D/R).

2. Addition of Sale Consideration as Unexplained Credit under Section 68:
The AO added the sale consideration from the sale of shares as unexplained credit under Section 68 of the Income Tax Act. The assessees contended that the authorities erred in treating the capital gains from the sale of shares of M/s. Pine Animations Limited and M/s. Jacksons Investments Limited as unexplained credits. The Tribunal found that the companies involved were penny stock companies with artificially inflated prices, indicating that the transactions were bogus and aimed at providing long-term capital gains to beneficiaries.

3. Denial of Exemption under Section 10(38) for Long-Term Capital Gains:
The assessees claimed exemption under Section 10(38) for long-term capital gains from the sale of shares. The AO denied this exemption, stating that the shares were of penny stock companies with no substantial business operations and artificially inflated prices. The Tribunal upheld the AO's decision, citing the findings from the Investigation Wing and previous judgments, including the Hon'ble Calcutta High Court's decision in the case of Swati Bajaj & Others, which dealt with similar issues of bogus long-term capital gains from penny stock companies.

4. Levy of Interest under Sections 234A, 234B, and 234C:
The assessees contested the levy of interest under Sections 234A, 234B, and 234C, arguing that no opportunity was given before the levy and that interest should only be levied on the returned income. The Tribunal did not specifically address this issue in detail, focusing instead on the primary issues of unexplained credits and denial of exemptions.

Conclusion:
The Tribunal dismissed the appeals, upholding the AO's and CIT(A)'s decisions. The Tribunal found that the transactions in question were bogus and did not qualify for exemption under Section 10(38). The addition of sale consideration as unexplained credit under Section 68 was justified, and the principles of natural justice were not violated as the assessees failed to respond to notices and appear for hearings. The levy of interest under Sections 234A, 234B, and 234C was not specifically addressed in detail.

← Previous Next →