2021 (6) TMI 491 - AT - Income Tax

Bogus LTCG - Penny stock purchases - genuineness of claim of LTCG u/s. 10(38) - HELD THAT - As in the case of assessee also there was no evidence produced by the Ld. AO to show that there was an agreement between assessee and any other party which are alleged to be involved in providing accommodation entry. Thus respectfully following the ratio laid down in the case of Krishna Devi 2021 (1) TMI 1008 - DELHI HIGH COURT and Swati Luthra 2019 (7) TMI 526 - ITAT DELHI which is squarely applicable on the facts and issues raised before us, are of the considered view that the claim of LTCG u/s. 10(38) from sale of equity shares of Terbotech Engineering Limited is genuine and the assessees is entitled to claim the benefit. Thus, no addition was called for u/s. 68 of the Act for unexplained cash credit. We, further hold that the assessee is regularly dealing in equity shares as an investor and as its main source of income salary and other from other sources and the frequency of transactions in purchase and sale of shares is less, it cannot be held to be carrying on business of purchase/sale of shares as an adventure in nature of trade. - Decided in favour of assessee.

Issues Involved:
1. Legality of the order passed by the Commissioner of Income Tax (Appeals) [CIT(A)].
2. Addition of ?97,49,239/- under section 68 of the Income Tax Act, 1961.
3. Classification of Long Term Capital Gain (LTCG) as a sham transaction.
4. Application of the decision of the Delhi ITAT in the case of Shikha Dhawan.
5. Application of the Supreme Court decision in the case of the assessee.
6. Classification of the stock as "penny stock".
7. Determination of the capital gain as bogus or managed affairs.
8. Non-provision of the investigation wing's report and opportunity to cross-examine.

Issue-wise Detailed Analysis:

1. Legality of the Order Passed by CIT(A):
The assessee contended that the order passed by the CIT(A) was bad in law and on facts. The Tribunal examined the records and found that the CIT(A) had confirmed the view of the Assessing Officer (AO) without properly addressing the documentary evidence provided by the assessee. The Tribunal noted that the CIT(A) placed reliance on various decisions but did not provide substantial evidence against the assessee.

2. Addition of ?97,49,239/- under Section 68:
The AO added ?99,78,000/- as unexplained cash credit under section 68 of the Act, concluding that the LTCG from the sale of shares of Turbotech Engineering Limited (TEL) was bogus. The Tribunal observed that the AO's conclusion was based on general observations about the financial statements of TEL and not on concrete evidence against the assessee. The Tribunal found that the assessee had provided sufficient documentary evidence, including contract notes, DEMAT account statements, and bank statements, to support the genuineness of the transactions.

3. Classification of LTCG as a Sham Transaction:
The CIT(A) held that the LTCG claimed by the assessee was a sham transaction, citing the abnormal rise in share prices of TEL and the lack of financial strength of the company. The Tribunal, however, noted that the AO and CIT(A) did not dispute the documentary evidence provided by the assessee. The Tribunal emphasized that the mere abnormal rise in share prices does not automatically render the transaction bogus without concrete evidence of manipulation or accommodation entries.

4. Application of the Decision of Delhi ITAT in the Case of Shikha Dhawan:
The assessee argued that the issue was covered by the decision of the Delhi ITAT in the case of Swati Luthra, which held similar transactions involving TEL as genuine. The Tribunal agreed with the assessee and found that the facts of the present case were similar to those in Swati Luthra, where the transactions were held to be genuine, and TEL was not classified as a penny stock.

5. Application of the Supreme Court Decision in the Case of the Assessee:
The assessee contended that the CIT(A) wrongly applied the Supreme Court's decision in a different case to their situation. The Tribunal found that the CIT(A) did not provide a clear basis for applying the Supreme Court's decision and that the facts of the assessee's case were different from those in the cited decision.

6. Classification of the Stock as "Penny Stock":
The CIT(A) classified TEL as a penny stock, but the Tribunal noted that there is no definition of "penny stock" under the Income Tax Act or any other law. The Tribunal found that the AO and CIT(A) did not provide substantial evidence to support the classification of TEL as a penny stock.

7. Determination of the Capital Gain as Bogus or Managed Affairs:
The AO and CIT(A) concluded that the capital gain was bogus based on inquiries and general observations about TEL's financials. The Tribunal found that no specific evidence was provided to link the assessee with any manipulation or accommodation entries. The Tribunal emphasized that the assessee had fulfilled all conditions for claiming exemption under section 10(38) of the Act.

8. Non-provision of the Investigation Wing's Report and Opportunity to Cross-examine:
The assessee argued that the AO did not provide the investigation wing's report or an opportunity to cross-examine the persons mentioned in the report, violating principles of natural justice. The Tribunal agreed with the assessee, noting that the AO did not confront the assessee with any specific report or statement, depriving the assessee of the right to cross-examine.

Conclusion:
The Tribunal allowed the appeal in favor of the assessee, holding that the LTCG from the sale of shares of TEL was genuine and the assessee was entitled to claim the benefit under section 10(38) of the Act. The Tribunal set aside the orders of the lower authorities and deleted the addition of ?99,78,000/- under section 68 of the Act. The Tribunal also held that the assessee was not engaged in the business of trading shares and was entitled to exemption on LTCG.

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