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2024 (5) TMI 1561 - AT - Income TaxDisallowing claim of business loss - Allegation of share transactions in certain penny stock companies - assessee from the purchase sales undertaken within 7-9 months thereby resulting in huge loss shown in such a short time span which appears quite unrealistic and unreasonable - HELD THAT - In this case the fact related to the dispute is that the assessee has incurred a loss which the AO has disallowed considering it as a bogus loss claimed by the assessee. The fact related to that claim is that the assessee has made out of the disclosed sources in the shares of the companies as mentioned herein below after making the investment in 7 - 8 month the assessee company noted that the investment made by the assessee getting deteriorated and therefore sold those share purchased by the assessee and in that process the assessee has suffered the loss. Thus as it is evident that the primary onus that is casted upon the assessee has discharged by the assessee and the revenue has merely based on the generalized way and that too while dealing with the cases of 10(38) relied upon the detailed investigation report where in there is no reference as the broker of the assessee with whom the assessee has undertaken the transaction is not discussed or covered and there is no reference of either of the assessee or to his broker the addition cannot be made in the hands of the assessee. See Affluence Commodities (P) Ltd 2024 (4) TMI 199 - GUJARAT HIGH COURT held as assessee has proved the genuineness of the transactions and established on online trading platforms that it had no control whatsowever on share prices and thus incurred losses in shares. It was also found by both the authorities that the assessee sold only the part of the shares and remaining shares have been held by the assessee in the subsequent assessment year also. With regard to shares of Kappac Pharma Ltd. it was rightly held by the Tribunal that since the market rate was lower the assessee had incurred business loss though the shares are not sold. Addition on account of alleged commission - Since in ground no 1 we have considered the loss as genuine the addition made in the hands of the assessee does not survive and therefore the same is directed to be deleted.
The core legal questions considered in this appeal concern the validity of disallowance of claimed business losses and addition of alleged commission expenses by the assessing officer, upheld by the Commissioner of Income Tax (Appeals). Specifically, the issues are:
1. Whether the loss of Rs. 1,62,15,971/- claimed by the assessee on share transactions involving certain penny stock companies is genuine and allowable as business loss under the Income Tax Act. 2. Whether the commission amount of Rs. 9,72,958/- paid for acquiring accommodation entries related to these transactions constitutes undisclosed expenditure and is rightly added to the taxable income. These issues arise from the investigation and search operations by the Income Tax Department, which unearthed a syndicate engaged in providing accommodation entries through bogus long-term capital gains and short-term capital losses by manipulating penny stock transactions. Issue-wise Detailed Analysis Issue 1: Disallowance of Business Loss of Rs. 1,62,15,971/- Relevant Legal Framework and Precedents: The Income Tax Act governs the allowance of business losses, requiring genuineness and substantiation of transactions. The Supreme Court's decision in Sumati Dayal v. CIT (214 ITR 801) is pivotal, establishing that the true nature of transactions must be ascertained based on surrounding circumstances and human probabilities rather than strict evidentiary rules. It also clarifies that the standard of proof beyond reasonable doubt does not apply in tax matters. The burden of proof may shift to the assessee to satisfactorily explain suspicious transactions. Additionally, the Calcutta High Court in Commissioner of Income Tax v. Swati Bajaj (2022) emphasized that mere non-availability of opportunity for cross-examination does not vitiate proceedings unless prejudice is demonstrated. Court's Interpretation and Reasoning: The Tribunal and CIT(A) relied heavily on the investigation wing's findings, which exposed a syndicate operating bogus accommodation entries through penny stock transactions involving companies like Turbotech, Global Infratech, Indian Infotech, and SRK Industries. These companies, despite having small capital bases, showed disproportionate market capitalizations and manipulated share prices characterized by bell-shaped price charts rising and falling without any fundamental justification. The assessee's transactions involved purchasing shares at inflated prices and selling them within 7-9 months at steep losses totaling Rs. 1.62 crore. The AO and CIT(A) found these losses to be unrealistic and indicative of a scheme to generate bogus losses to offset taxable income. The assessee failed to provide credible explanations or identify persons recommending these purchases, nor did it refute the existence of the syndicate or demonstrate that it did not benefit from the scheme. The Tribunal applied the test of human probabilities and surrounding circumstances, concluding that the transactions were sham and colorable devices to evade tax. Key Evidence and Findings: The investigation revealed:
The assessee's defense rested on the genuineness of transactions conducted through recognized stock exchanges, payment through banking channels, and existence of the companies involved. However, the Tribunal noted that these apparent features did not negate the underlying manipulation. Application of Law to Facts: The Tribunal applied the principles from Sumati Dayal and related precedents, emphasizing circumstantial evidence and the burden on the assessee to provide plausible explanations. Given the failure to do so and the incriminating material from the investigation, the loss claim was rightly disallowed. Treatment of Competing Arguments: The assessee argued lack of opportunity for cross-examination of witnesses and absence of direct evidence against it. The Tribunal held that mere absence of cross-examination does not invalidate findings unless prejudice is shown. The reliance on circumstantial evidence and human probabilities was upheld as appropriate in tax proceedings. Conclusion: The disallowance of the business loss was justified and confirmed. Issue 2: Addition of Commission of Rs. 9,72,958/- as Undisclosed Expenditure Relevant Legal Framework and Precedents: Under the Income Tax Act, unexplained or undisclosed expenditure incurred for illegal or accommodation entries can be added to income. The principle that payments made to syndicates for accommodation entries represent undisclosed income or expenditure is well established. Court's Interpretation and Reasoning: The investigation revealed that beneficiaries paid commission at rates of 6% or more to syndicates for bogus short-term loss accommodation entries. The AO treated this commission as undisclosed expenditure. The CIT(A) upheld this addition, noting the commission was part of the scheme to generate fictitious losses and evade tax. Key Evidence and Findings: Confessions by operators and brokers, corroborated by investigation reports, established the payment of commission. The assessee did not provide any evidence to dispute this finding or prove the commission was for legitimate business purposes. Application of Law to Facts: The Tribunal applied the principle that payments for accommodation entries are not genuine business expenses and thus are liable to be added back to income. The commission was rightly treated as undisclosed expenditure and added accordingly. Treatment of Competing Arguments: The assessee did not effectively counter the evidence of commission payments or the nature of the scheme. The argument of lack of direct evidence was rejected in light of circumstantial evidence and confessions. Conclusion: The addition of commission as undisclosed expenditure was appropriate and confirmed. Significant Holdings "The true nature of transaction have to be ascertained in the light of surrounding circumstances. It needs to be emphasized that standard of proof beyond reasonable doubt has no applicability in determination of matters under taxing statutes." "The tax liability in the cases of suspicious transactions, is to be assessed on the basis of the material available on record, surrounding circumstances, human conduct, preponderance of probabilities and nature of incriminating information/ evidence available with AO." "The transactions as discussed by the AO fall in the realm of 'suspicious' and 'dubious' transactions. The AO has therefore necessarily to consider the surrounding circumstances, which he indeed has done in a very meticulous and careful manner." "Payment through Banks, performance through stock exchange and other such features are only apparent features. The real features are the manipulated and abnormal price of off load and the sudden dip thereafter." "Mere mentioning that non-furnishing of the report or non-availability of the person for cross examination cannot vitiate the proceedings unless the appellant shows and proves that she/he was prejudiced on account of such report/statement." "The addition made by AO with regard to disallowance of bogus loss and unexplained expenditure on commission paid for procuring these entries of loss is found to be justified." In conclusion, the Tribunal upheld the disallowance of the claimed business loss and the addition of commission paid for accommodation entries, confirming the findings of the assessing officer and the CIT(A). The decision underscores the application of circumstantial evidence and human probabilities in tax assessment proceedings involving suspicious transactions and accommodation entry schemes.
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