2023 (1) TMI 314 - AT - Income Tax

Unexplained credit u/s 68 - Bogus LTCG - long term capital gain on sale of shares sold on recognized stock exchange - HELD THAT - We are in absolute agreement with the submission of Ld. DR that the issue of exempted capital gain arising from Turbotech Engineering Ltd. stands duly examined and concluded by ITAT, Indore Bench in the case of Shri Abhishek Gupta 2022 (8) TMI 1333 - ITAT INDORE . We note that the although the present appeal concerns the shares of Lifeline Drugs and Pharma Ltd., but the position is pari materia similar to the share of Turbotech Engineering Ltd. Further, we do not find any material change which could suggest non-applicability of the decision of Shri Abhishek Gupta (supra) in present appeal. Hence, we find no valid reason to deviate. Accordingly, we uphold the additions made by revenue-authorities and dismiss the Grounds raised by assessee.

Issues Involved:
1. Denial of exemption of long-term capital gain under section 10(38) of the Income-tax Act, 1961.
2. Addition of sale consideration as unexplained credit under section 68 of the Income-tax Act, 1961.
3. Addition of unexplained commission paid under section 69C of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Denial of Exemption of Long-Term Capital Gain under Section 10(38):
The assessee claimed an exemption for long-term capital gain of Rs. 90,69,199/- from the sale of shares of Lifeline Drugs and Pharma Ltd., which was denied by the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)]. The AO observed that the capital gain was unrealistic, achieved through transactions in "penny stock," and concluded it was not genuine. The AO relied on various judicial precedents and the findings of the Securities and Exchange Board of India (SEBI) and the Directorate of Income-tax (Investigation), Kolkata, which identified Lifeline Drugs and Pharma Ltd. as involved in bogus Long Term Capital Gain (LTCG) transactions. The CIT(A) upheld this view, noting that the assessee failed to prove the genuineness of the transactions and the identity and creditworthiness of the purchasers. The Tribunal agreed with the lower authorities, referencing the decision in Shri Abhishek Gupta Vs. ITO, which dealt with a similar issue and upheld the denial of the exemption.

2. Addition of Sale Consideration as Unexplained Credit under Section 68:
The AO added the sale consideration of Rs. 90,69,199/- as unexplained credit under section 68, citing that the assessee could not provide satisfactory explanations for the nature and source of the credited amount. The AO emphasized that the transactions were part of a scheme to convert unaccounted income into tax-exempt LTCG through manipulated share prices. The CIT(A) confirmed this addition, agreeing with the AO's findings and the detailed inquiries conducted by the Investigation Wing. The Tribunal upheld this addition, noting the extensive evidence against the genuineness of the transactions and the failure of the assessee to discharge the burden of proof.

3. Addition of Unexplained Commission Paid under Section 69C:
The AO estimated a brokerage commission of Rs. 2,73,105/- (3% of the total transaction) as unexplained expenditure under section 69C, incurred for arranging the bogus capital gain. The CIT(A) confirmed this addition, noting that the assessee failed to disprove the AO's findings. The Tribunal upheld this addition, agreeing with the lower authorities' reasoning and the evidence of commission payments for accommodation entries.

Conclusion:
The Tribunal dismissed the appeal, agreeing with the lower authorities' findings that the transactions were not genuine and were part of a scheme to convert unaccounted income into tax-exempt LTCG. The additions under sections 68 and 69C were upheld, and the exemption under section 10(38) was denied.

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