2023 (1) TMI 119 - AT - Income Tax

Bogus LTCG - exemption claimed u/s 10(38) - long term capital gain derived from sale of shares denied - Onus to prove - HELD THAT - Merely because a particular scrip is identified as a penny stock by the income tax department, it does not mean all the transactions carried out in that scrip would be bogus. So many investors enter the capital market just to make it a chance by investing their surplus monies. They also end up with making investment in certain scrips (read penny stocks) based on market information and try to exit at an appropriate time the moment they make their profits. In this process, they also burn their fingers by incurring huge losses without knowing the fact that the particular scrip invested is operated by certain interested parties with an ulterior motive and once their motives are achieved, the price falls like pack of cards and eventually make the gullible investors incur huge losses. In this background, the only logical recourse would be to place reliance on the orders passed by SEBI pointing out the malpractices by certain parties and taking action against them. Since assessee or his broker is not one of the parties who had been proceeded against by SEBI, the transaction carried out by the assessee cannot be termed as bogus. Thus hold that the entire addition has been made based on mere surmise, suspicion and conjecture and by making baseless allegations against the assessee herein. Whether the ld. AO merely on the basis of Kolkata investigation wing report could come to a conclusion that the transactions carried out by the assessee as bogus? - AO is expected to conduct independent verification of the matter before reaching to the conclusion that the transactions of the assessee are bogus. More importantly, it is bounden duty of the ld. AO to prove that the evidences furnished by the assessee to support the purchase and sale of shares as bogus. This view of mine is further fortified by the decision of PCIT vs Laxman Industrial Resources Ltd 2017 (3) TMI 1521 - DELHI HIGH COURT It is well settled that the suspicion however strong could not partake the character of legal evidence. Hence the greater onus is casted on the revenue to corroborate the impugned addition by controverting the documentary evidences furnished by the assessee and by bringing on record cogent material to sustain the addition. No evidence has been brought on record to establish any link between the assessee herein either with the directors of Lifeline Drugs and Pharma Ltd or any other person named in the assessment order or in the SEBI order, as being involved in any price rigging or the exit provider. This onus is admittedly not discharged by the revenue in the instant case. Appeal of assessee allowed.

Summary

Issues Involved:
1. Justification of CIT(A) in confirming the AO's action of denying exemption claimed under Section 10(38) of the Income Tax Act for long-term capital gains from the sale of shares of Lifeline Drugs and Pharma Ltd.

Issue-wise Analysis:

1. Justification of CIT(A) in Confirming AO's Denial of Exemption under Section 10(38):

The main issue in this appeal is whether the CIT(A) was justified in confirming the AO's action of denying the exemption claimed under Section 10(38) of the Act in respect of long-term capital gains derived from the sale of shares of Lifeline Drugs and Pharma Ltd.

The assessee, an individual deriving income from business, capital gains, and other sources, claimed exemption under Section 10(38) for long-term capital gains from the sale of shares of Lifeline Drugs and Pharma Ltd in the assessment year 2015-16. The AO denied this exemption, relying on findings from the Kolkata investigation wing, which suggested that the financials of the company were poor, the company was not engaged in substantial activities, and the preferential allotment of shares was a pre-arranged process to book bogus capital gains.

The assessee provided various documents to support the transaction, including bank statements, demat account details, and contract notes. Despite this, the AO treated the sale proceeds as unexplained cash credit under Section 68 of the Act, citing artificial price rigging and mutual connivance between the assessee and operators.

The CIT(A) upheld the AO's action, but the appellate tribunal found that the documentary evidence provided by the assessee was genuine and no adverse inferences were drawn by the revenue. The transactions were carried out through a registered share broker at prevailing market prices, and payments were received by account payee cheques, subjected to Securities Transaction Tax (STT).

The tribunal noted that no independent enquiries were conducted by the revenue on the broker or with the stock exchange, and the revenue merely relied on the Kolkata investigation report without linking the assessee to the allegations. The tribunal emphasized that there was no evidence proving the assessee's involvement in converting unaccounted income into exempt long-term capital gains through connivance with entry operators or promoters of Lifeline Drugs and Pharma Ltd.

The tribunal further observed that the preferential allotment of shares to the assessee could not be a ground to declare the transaction as sham if the assessee had discharged the onus of proving the purchase and sale of shares through demat accounts. The tribunal referenced the decision of the Hon'ble Jurisdictional High Court in CIT vs Jamnadevi Agarwal, which supported this view.

The tribunal also highlighted that SEBI conducted independent enquiries and passed an order listing individuals involved in price manipulation, but the assessee's name or broker did not appear in this list. The assessee held the shares for over a year and sold them at prevailing market prices, retaining a substantial portion of the shares for future profits, indicating a genuine investment intention.

The tribunal concluded that the addition was made based on mere suspicion and conjecture without independent verification by the AO. The tribunal cited the decision of the Hon'ble Delhi High Court in PCIT vs Laxman Industrial Resources Ltd, which emphasized that suspicion alone could not constitute legal evidence and the revenue must corroborate the addition with cogent material.

Given the lack of evidence linking the assessee to price manipulation or bogus transactions, and considering the judicial precedents, the tribunal allowed the appeal, overturning the CIT(A)'s decision and granting the exemption under Section 10(38) for the long-term capital gains.

Conclusion:

The appeal was allowed, and the exemption under Section 10(38) for long-term capital gains was granted to the assessee, as the addition was based on suspicion without substantial evidence.