2025 (2) TMI 1072 - AT - Income Tax

Treatment to the profit from sale of shares - under the head income from business or section 68 - HELD THAT - The entire transaction of sale was through BSE and the payment was received through banking channel. We notice that the investigation report prepared by the Investigation Wing Kolkata is a disclosed report with modus adopted for manipulation of prices of certain shares and generation of bogus capital gains. AO has placed reliance on the said report without bringing any material on record to show that the transactions entered into by the assessee were found to be a bogus and manipulated transaction. It was not proved that the assessee has carried out this transaction of purchase and sale of shares in connivances with the people who were in the alleged rigging of price. Finding the report of the SEBI we do not find any such adverse report against the assessee. Decision rendered in case of PCIT vs Ziauddin A Siddiqui 2022 (3) TMI 1437 - BOMBAY HIGH COURT shall apply to the present case since the Ld.AO has not established that the assessee was involved in price rigging and further the AO did not find fault with any of the documents furnished by the assessee. AO has assessed the amount as unexplained cash credit under section 68 of the Act. It is pertinent to note that the purchase of shares made in earlier year was accepted by the revenue. The sale of share has taken place in on-line platform of BSE and the consideration has been received through stock broker through banking channel. So these transactions cannot be taken as unexplained cash credit under section 68 of the Act. Related to payment of brokerage no such evidence was established by the Ld.AO as to whether the assessee has paid the amount to the broker or not. So the addition under section 69 is deleted - Appeal of assessee allowed.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this judgment are:

1. Whether the profit from the sale of shares of SRK Industries Ltd should be treated as income from business or as long-term capital gain (LTCG) eligible for exemption under section 10(38) of the Income-tax Act, 1961.

2. Whether the transactions involving the sale of shares by the assessee were genuine or collusive and manipulated, warranting the application of section 68 of the Act to treat the sale consideration as unexplained cash credit.

3. Whether the Assessing Officer (AO) was justified in relying on the investigation report from the Kolkata Investigation Wing without conducting an independent investigation into the transactions of the assessee.

4. Whether the addition of 3% of the sale proceeds under section 69C of the Act was justified in the absence of evidence that the assessee paid such an amount to the broker.

ISSUE-WISE DETAILED ANALYSIS

1. Treatment of Profit from Sale of Shares

- Relevant legal framework and precedents: The primary legal provisions involved are sections 10(38), 68, and 69C of the Income-tax Act, 1961. The judgment also references precedents, including the Bombay High Court decision in Bimalchand Jain, which dealt with the taxability of profits from penny stocks.

- Court's interpretation and reasoning: The Tribunal noted that the assessee had provided all necessary documentation to substantiate the purchase and sale of shares, including banking records and demat account statements. The Court emphasized that the AO did not conduct an independent investigation but relied solely on the investigation report from the Kolkata Wing.

- Key evidence and findings: The assessee's transactions were conducted through the Bombay Stock Exchange (BSE) and were supported by banking channels. The Tribunal found no evidence of collusion or manipulation by the assessee.

- Application of law to facts: The Tribunal applied the principles from previous cases, particularly noting the absence of direct evidence against the assessee, and concluded that the transactions were genuine.

- Treatment of competing arguments: The Tribunal distinguished the case from Bimalchand Jain, where the AO had conducted independent verification. Here, the reliance on the investigation report without further inquiry was deemed insufficient.

- Conclusions: The Tribunal concluded that the profit from the sale of shares should be treated as LTCG eligible for exemption under section 10(38), not as business income.

2. Allegation of Bogus Transactions and Application of Section 68

- Relevant legal framework and precedents: Section 68 of the Act pertains to unexplained cash credits. The Tribunal considered whether the AO's reliance on the investigation report justified the application of this section.

- Court's interpretation and reasoning: The Tribunal noted that the AO did not bring any material evidence to prove that the transactions were bogus or manipulated. The Court found that the investigation report alone was insufficient to establish the alleged collusion.

- Key evidence and findings: The Tribunal found that the transactions were conducted through recognized channels and documented adequately.

- Application of law to facts: The Tribunal emphasized the need for concrete evidence to apply section 68, which was lacking in this case.

- Treatment of competing arguments: The Tribunal rejected the revenue's reliance on the investigation report, emphasizing the lack of direct evidence against the assessee.

- Conclusions: The Tribunal concluded that the application of section 68 was unwarranted, and the addition of Rs. 77,89,120 as unexplained cash credit was deleted.

3. Addition under Section 69C

- Relevant legal framework and precedents: Section 69C deals with unexplained expenditure. The Tribunal examined whether the AO provided evidence for the alleged payment of brokerage by the assessee.

- Court's interpretation and reasoning: The Tribunal found no evidence that the assessee paid the alleged brokerage amount, and thus, the addition under section 69C was unjustified.

- Key evidence and findings: The revenue failed to establish that the assessee incurred any such expenditure.

- Application of law to facts: The Tribunal applied the principle that the burden of proof lies with the revenue to establish unexplained expenditure.

- Treatment of competing arguments: The Tribunal found the revenue's arguments unsubstantiated and deleted the addition.

- Conclusions: The addition of Rs. 2,32,565 under section 69C was deleted.

SIGNIFICANT HOLDINGS

- Preserve verbatim quotes of crucial legal reasoning: "The Ld.AO has not made any separate investigation related to the transactions of assessee. The assessee is already dealing with different shares and during alleged year, the assessee earned loss and gain on sale of shares."

- Core principles established: The Tribunal established that reliance on an investigation report without independent verification by the AO is insufficient to classify transactions as bogus or manipulated.

- Final determinations on each issue: The Tribunal allowed the appeal, treating the profit from the sale of shares as LTCG exempt under section 10(38) and deleting the additions under sections 68 and 69C.