Principal Commissioner Of Income Tax 1 vs Divyaben Prafulchandra Parmar

C/TAXAP/812/2023 ORDER DATED: 02/01/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/TAX APPEAL NO. 812 of 2023

========================================================== PRINCIPAL COMMISSIONER OF INCOME TAX 1 Versus DIVYABEN PRAFULCHANDRA PARMAR ========================================================== Appearance: MR KARAN SANGHANI ADVOCATE WITH MRS KALPANA K RAVAL(1046) for the Appellant(s) No. 1 for the Opponent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA and HONOURABLE MR. JUSTICE NIRAL R. MEHTA

Date : 02/01/2024

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

[1] Being aggrieved and dissatisfied with the order dated 27 th

July 2023 passed by the Income Tax Appellate Tribunal, Surat

Bench, Surat (for short, "the Tribunal") in ITA No.73/SRT/2023 for

Assessment Year 2014-15, the appellant - Revenue has preferred

this Tax Appeal under Section 260A of the Income Tax Act, 1961

(for short, "the Act") with the following proposed substantial

questions of law:

"i) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in deleting the addition of sale proceeds of the share of Rs.49,01,840/- on account of

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unexplained income u/s 68 of the Act made by the Assessing Officer arising out of sale of shares of Sunrise Asian Ltd., a penny stock and without appreciating the findings of the Assessing Officer that the price movement of the company were not supported by financial fundamentals of the company?

ii) "Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in allowing the appeal of the Assessee by holding that the investment in shares was genuine, simply placing reliance upon the decision of Hon'ble High Court in the case of Jagat Pravin Sarabhai (2022) 142 taxmann.com 247 and overlooking the circumstantial evidences and preponderance of the probability in the case?

iii) "Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in ignoring the fact that, one of the entry provider involved in this case Shri Anuj Agarwal has admitted that he had given entry of bogus LTCG through 19 paper companies controlled by him, and Sunrise Asian Ltd is one of them?

iv) "Whether on the facts and circumstances of the case and in law the order of the Hon'ble ITAT suffers from perversity as it ignores the facts brought on record establishing manipulation of share prices of Sunrise Asian Ltd. as the upward movement of share price was not at all justified by the economic fundamental of company during the period 2011 to 2014?

v) "Whether on the facts and circumstances of the case and in law, the order of the Hon'ble ITAT was justified in holding that the assessee was deprived off to cross examine the witnesses when the principle of natural justice have been duly followed and the assessee did not avail the opportunity provided during the assessment proceedings?

vi) "Whether on the facts and circumstances of the case and in law the Hon'ble ITAT erred in deleting the disallowance of commission of Rs. 98,038/- purportedly incurred by the Assessee towards payment to brokers who allegedly entered into the share transactions at the behest of the Assessee overlooking the fact that the entire transaction were stage managed with the object to facilitate the Assessee to plough back its unaccounted income in

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the form of fictitious Long Term Capital Gains of Rs.49,01,840/-

and claim bogus exemption?"

[2] The respondent - assessee, who is an individual, filed a

return of income on 4th March 2015 declaring total income of

Rs.4,22,502/-. The case of the assessee was selected for scrutiny

through CASS and notice under Section 143(2) of the Act was

issued on 18th September 2015 followed by notice under Section

142(1) of the Act dated 13th June 2016. The assessee furnished the

details sought for by the Assessing Officer. The assessee has also

shown Long Term Capital Gains of Rs.45,01,840/- in her return of

income which was claimed as exempt under Section 10(38) of the

Act. It was noted by the Assessing Officer that the Long Term

Capital Gains claimed by the assessee included sale transactions

effected during the year on the script named "Sunrise Asian Ltd".

[3] The Assessing Officer, thereafter, on the basis of details

available on record, ascertained that the assessee sold 10,000

shares of the said company during the year under consideration on

total sale prices of Rs.49,01,840/-, which has resulted in Long Term

capital gains of Rs.45,01,840/-.

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[4] During the course of assessment proceedings, information

under Section 133(6) of the Act was called for from the Bombay

Stock Exchange and the details of "Sunrise Asian Ltd" were

received by the Assessing Officer. The details of the sale of script

during the year are stated by the Assessing Officer on page : 5 and

6 of the assessment order. The Assessing Officer, after going

through the purchase details of these shares, observed that the

assessee had purchased shares of M/s. Conart Traders Ltd. on 21 st

August 2011 directly from the company and sold the shares of

Sunrise Asian Ltd. and therefore, clarification was sought. The

assessee replied that the company Conart Traders Ltd was later

amalgamated with Sunrise Asian Ltd vide order dated 24 th January

2013 passed by the Bombay High Court.

[5] The Assessing Officer, after considering the submissions of

the assessee as well as the information received through the

Investigation Wing of Kolkata, came to the conclusion that the

assessee has shown credit of Rs.49,01,840/- towards sale proceeds

and the same was not accepted and the Assessing Officer made an

addition of Rs.49,99,877/- towards unexplained unaccounted

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income and levied tax as per Section 115BBF of the Act.

[6] The assessee challenged the assessment order passed by the

Assessing Officer before the CIT(A), who confirmed the action of

the Assessing Officer.

[7] Feeling aggrieved by the order passed by the CIT(A), the

assessee preferred the appeal before the Tribunal contending that

the assessee provided enough documents and evidence to prove her

claim before the Assessing Officer and the CIT(A), but the same

were not examined and the orders were passed for making addition

on the ground of unaccounted income. It was contended that the

transaction is supported by ledger account of Conart Traders, Debit

Note, share certificate and the sale transaction was conducted

through the banking channel and STT was also paid. The assessee,

therefore, prayed for deletion of the addition made by the Assessing

Officer and confirmed by the CIT (A).

[8] The Departmental Representative appearing for the appellant

submitted before the Tribunal that the assessee did not prove the

genuineness of the transaction and the transaction done through

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the banking channel, is not sufficient. It was submitted that the

debit note, ledger account and other evidence such as STT paid by

the assessee do not show that the transaction is genuine. Reliance

was placed on the decision of the Calcutta High Court in the case of

PCIT vs. Swati Bajaj reported in (2022) 139 taxmann.com 352

(Calcutta), to submit that the assessee has not proved the

genuineness of transaction and therefore, the addition made by the

Assessing Officer should be sustained.

[9] The Tribunal, after considering the findings of the Assessing

Officer, CIT(A) as well as the material placed on record, has come

to the conclusion and arrived at a finding of fact that the assessee

has proved the genuineness of transaction of sale of 10,000 shares

of Sunrise Asian Ltd. The Tribunal also relied upon the decision of

this Court in the case of Jagat Pravinbhai Sarabhai reported in

[2022] 142 taxmann.com, wherein it is held that the Assessing

Officer has failed to substantiate that addition under Section 68 of

the Act could be sustained in absence of genuineness of investment

in shares of the assessee by producing copy of the transaction

statement and shares were retained for a long time and sold after

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some time and the investment could not be held to be bogus. It

was, therefore, held by the Tribunal that in the facts of the case

also, when the assessee has held the shares from 2011-2014 for

almost two and half years, the same cannot be said to be bogus.

The Tribunal, after considering the various submissions, has held as

under:

"20. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the Ld. CIT(A) and other material brought on record. We note that during the assessment proceedings, the assessee submitted before the assessing officer, Ledger account of Conart Trader, Debit note for purchase of share, share certificate, Bank statement of assessee. Income Tax Return (ITR), computation of total income, Financial statements for A.Y. 2014-15, copy of Ledger account of Nirmal Bang Securities Pvt. Ltd. with their contra account and Demat account, Contra notes issued by SEBI register broker Nirmal Bang Securities Pvt. Ltd. w.r.t. sales of shares in BSE with payment of STT. Copy of NSDL statement of holding as on 31.03.2013 & 31.03.2014, Evidence for Amalgamation of companies by Hon'ble Bombay High Court order, and Sunrise Asian Lid-price data downloaded from Money Control. The Assessing Officer did not find any defect in these documents and evidences except to say that these documents and evidences are not acceptable. We note that Assessing Officer has not refuted or discredited these evidences and documents. The Assessing Officer does not mention why he is not accepting these evidences. On the contrary. The Assessing Officer has just brushed aside these evidences without even a word on why they are not acceptable. It is a well settled Law that when an assessee has all the possible evidence in support of its claim. they cannot be brushed aside base on surmises.

21. We note that assessee is an individual and filed her return of

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income (ROI) for A.Y. 2014-15 on 04.03.2015. showing total income of Rs. 4,22,502/-. In the said return of income (ROI), the Long Term Capital Gain (LTCG) on sale of shares at Rs. 45,01,840/- was also shown. The assessee has claimed exemption u/s. 10(38) of the Act, as LTCG was on listed equity shares and STT has been paid by the assessee. The entire transaction was through banking channel. However, Assessing Officer made addition of Rs. 49,01,840/- u/s.68 and addition of Rs. 98,037/- was made u/s. 69 of the Act, holding that transaction entered into by the assessee is in the nature of sham transactions, which is being done by assessee, in order to rout its own money to give it a color of genuine transactions. However, we note that there is no evidence before the Assessing Officer to the effect that the assessee has received the cash back against such transaction.

22. We note that during the assessment stage, the assessee has provided complete detail of the company. It was submitted that the company's share were listed on BSE and NSE stock exchange. The assessee has also submitted past history and business of the company, market cap and other financial data of the company. The shareholding pattern of the company and management particular, directors administrators and auditors, were also proved. A price moment chart between April, 2012 to March, 2015 was also supplied. It was submitted that during given period, high price of "Sunrise Asian Ltd." (in brief "SAL") was Rs. 605.50 and low price was Rs. 548.50 per share. Further, a list of the company who has given handsome return in the span of one year or less is also supplied to the Assessing Officer. These companies are in existence but not much popular due to its fundamentals, financial and corporate news. The assessee has argued that share market activities are risky business and many persons are losing their money and capital in the market due to its volatile nature. Therefore, only because of sharp moment in prices of shares, transactions in share cannot be held bogus. It was submitted that she being a genuine invested in the share of Conart Trader's Ltd, and hold it for several months, say two and half years, being satisfied with the profit, share were sold through SEBI registered broker, in online platform of BSE. She has paid STT and sale proceeds were received directly in her bank account by RTGS and NEFT. Therefore, her case is not a case of accommodation entries. hence Id. Counsel for the assessee prays the Bench that addition of Rs. 45,01,840/- u/s. 68 and addition of

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Rs. 90,037/- u/s. 69 of the Act may be deleted."

[10] The Tribunal, thereafter, has also considered the aspect of the

receipt of sale consideration of the assessee as reflected in the bank

statement and held as under:

"25. We note that assessee has received sale proceeds by electronic mode of payment system, that is, RTGS and NEFT, UTIB, directly in her SBI account, as follows:

Date Mode Amount (Rs) Paper book 25.02.2014 RTGS 14,50,756.68 -49 05.03.2014 RTGS 32,27,539.63 -49 11.03.2014 NEFT 1,95,711.34 -49 Total 48,74,007.65

With respect to BSE date produced by the assessing officer on page 2 and 3 of assessment order, it was submitted that the assessee has furnished copy of purchase bill. The payment of purchase of Rs.10,000 shares of Conart Traders Ltd., was made by cheque that can be seen from her SBI pass book. It is also appearing in her balance sheet as on 31.03.2012 and 31.03.2013. Assessment for assessment year (AY) 2013-14 was made by Assessing Officer u/s. 143(3) of the Act. The purchase of shares of Conart Traders Ltd, is accepted by the Assessing Officer. The said company was amalgamated with Sun Rise Asian Ltd. (in brief 'SAL') by virtue of order of Hon'ble Bombay High Court The assessee has produced numerous data details of "SAL" which was the basis of her decision so make the investment. All time high share price was Rs. 605.50 an on 31.03.2015 and from the month of Jan 2013 to July 2015. The price range stated by the Assessing Officer at pars 4 of his order is between Rs. 486 to 492 during the period February-2014 to June-2014. The assessee has sold shares of SAL at average rate of Rs. 487.40 during the month of February March 2014, which itself is an evidence of genuineness of transaction. Therefore, the allegations of rigging of manipulation

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of shares were refined by the assessee.

26. We note that Assessing Officer heavily relied upon the findings of Investigation Wing without carrying out any independent investigation of his own. Nothing was brought on record which would establish that the assessee was beneficiary of alleged accommodation entries provided by the so called Shri Anuj Agrawal. No corroborative evidences to support the finding of Assessing Officer were brought on record. No nexus was established. Further, no contrary and conclusive evidences furnished by the assessee. The enquiries were conducted by the DCIT at Kolkata and the statements were recorded at the back of the assessee. The assessee was deprived off to cross examine the witness. The documentary evidences submitted by the assessee were neither proved contrary nor proved fabricated. Assuming that the brokers may have done some manipulation but the assessee cannot be held liable for the act of the brokers when the entire transactions have been done through banking channel duly recorded in the Demat accounts with a Government depository and traded on the stock exchange. The sale transactions took place through recognized stock exchange and statutory Securities Transaction Tax (STT) as well as Service Tax was paid on sale transactions. In the online platform, the identity of the seller as well as purchaser would not be known. The shares were delivered in demat form through clearing mechanism of the stock exchange. Therefore, unless any link is established, the assessee could not be held to be part of the group indulging into rigging share prices of the scrip. The sale proceeds were realized through banking channel. i.e. RIOS NEET. There was as evidence of any cash exchange. The findings as well as conclusion of Assessing Officer were based on mere suspicion, and surmises as against settled proposition of law that suspicion howsoever strong could not partake the character of legal evidence. The entire case of Assessing Officer was based on mere presumption that the assessee ploughed back her own unaccounted money in the form of Bogus LTCG. The presumption needs to be corroborated by some evidence to establish the same. It is trite law that presumption, however, strong, cannot be a substitute, nor can it take place of evidence For the said proposition, reliance is placed on Hon'ble Supreme Court decision, in the case of Omar Salas Mohamed Sait reported in (1989) 37 ITR 151 (SC) where in it was held that no addition can be made in the basis of surmise,

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suspicion and conjectures.

27. We note that Assessing Officer has relied on the report of Investigation Wing Kolkata dated 24.04.2015. At the outset. these could not be relied on for the simple reason that the assessee has never takes any accommodation entry from any broker, she has supplied complete details of 'SAL' as well as the SEBI registered broker, Nirmal Bang Sec. Pvt. Ld., through whom she has done sale transaction of shares by paying STT The Assessing Officer has not made any inquiries with the share broker of the assessee. The Assessing Officer does not have any evidence to show that cash payment of Rs. 49,01,840/- made by the assessee to any broker or any entry provider. In absence of such evidence, genuine transactions recorded in on BSE as well as SBI hank account of the assessee cannot be held as accommodation entry. We note that the SEBI suspended only trading of 26 scrip out of the said 58 scrip and only 11 scrip prices were found rigged. The "Sunrise Asian Ltd" (Scrip Code 506615) was not included in these scrips whose shares assessee had purchased on 21.08.2011. We also note that in this case, the assessee, being an investor, has held shares for 2 and 1/2 years after holding shares for long period, the assessee sold the said shares. The assessee submitted Shares holding pattern of 'SAL' which is as under:

Category No. of shares %age Promoters 8,447,558 18.50% General Public 16,385,687 35.88% Others 16,685,906 34.35% Financial Institutions 5,143,909 11.26%

The ld. Counsel submits that the shares of "Sunrise Asian were being held buy Canara Bank, New Delhi, 6% of SAL. share during September 2015 and 11.26% shares of SAL. during March 2016 and June 2016 respectively. Thus, the sale transaction of 'SAL' shares cannot be doubted as bogus and denying the exemption u/ s. 10(38) of the Act. The Id. Counsel also submitted the judgments of various Coordinate Benches of ITAT, wherein addition made by the assessing officer u/s. 68 in respect of sale of shares of "Sunrise Avian Ltd." were deleted."

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[11] The Tribunal also distinguished the judgement relied upon on

behalf of the Revenue in the case of Swati Bajaj (supra) in

following paragraphs:

"33. We note that Ld DR for the Revenue heavily relied on the Judgement of Hon'ble Calcutta High Court in the case of Swati Bajaj and other (supra), however, we are of the view that as per the judgement of Hon'ble High Court of Bombay in the case of Thanna Electricity Supply Ltd (1994) 206 (ITR) 727 (Bom) wherein it was held that decision of a High Court will have the force of binding precedent only in the State or territories in which the Court has jurisdiction. Hence we note that judgment of Hon'ble Calcutta High Court in the case of Swati Bajaj and others (supra) should not be applicable to the assessee as it is outside territorial jurisdiction of Gujarat. However, the Judgment of Hon'ble Jurisdictional High Court of Gujarat in the case of Jagat Pravinbhai Sarabhai and Nishant Kantilal Patel (supra) should be applicable in the assesse's case as there are the judgment of Jurisdictional High Court. Besides, the Jurisdictional Co-ordinate Bench of ITAT Ahmedabad in the save of M/s. Ice Worth Reality LLP. Vide ITA Nos. 565 & 566/Ahd/2020, for Assessment Year 2012-13 & 2015-16, order dates 13.03.2023 (supra), deleted the addition made by the Assessing Officer in respect of Sunrise Asian Ltd. ("SAL") shares, which is impugned shared before us. We note that Assessing Officer has not been able to point out any evidence whatsoever to alleged that money changed hands between the assessee and the broker or any other person, or father that some person provided the entry to convert unaccounted money for getting benefit of LTCG, as alleged.

34. We note that addition under section 18 of the Act made merely on the basis of suspicion presumptions and probability of preponderance without any direct evidence to prove the transactions as non genuine or sham or demonstrating assessee's involvement in any kind of manipulation, cannot be made. Thus, the sessee has explained and submitted evidences to prove identity, nature of source of the cash credit on account of sale proceeds credited received in the bank account of the assessee

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and also furnished all evidences comprising contract notes, broker, banking details in support of the genuineness of the transactions. The shares are sold by the assessee's broker on BSE platform hence source in BSE's clearing system. The transactions on the BSE platform and settlement system who are responsible for the transactions of the demat account and prevailing price on public domain prove the genuineness of the transactions.

Therefore, respectfully, following the judgment of Hon'ble Jurisdictional High Court (supra) and Coordinate Bench of ITAT (supra), we deleted the addition Rs. 49,01,840/-.

35. Since we have deleted the mam addition of Rs 49,01,840/-, therefore Ground No 2 raised by the assessee for addition u/s. 69C for Rs. 98,038/-, w.r.t. notional commission expenses 2% of LTCG being unexplained expenditure, is consequential in nature and hence deleted."

[12] As the Tribunal deleted the addition charging of income tax

at the rate of 30% under Section 115BBE of the Act, was held to be

not applicable.

[13] Feeling aggrieved by the order passed by the Tribunal, the

appellant - Revenue has preferred this Tax Appeal on the proposed

substantial questions of law narrated hereinabove.

[14] Learned Senior Standing Counsel Mr. Karan Sanghani for the

appellant reiterated the submissions made before the Tribunal and

submitted that the Assessing Officer, after analyzing the data made

available from the Bombay Stock Exchange, came to the conclusion

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that the price of script, which the assessee sold, was fluctuating by

24 times and after sale of shares made by the assessee, the price

has reduced to Rs.0.49. It was, therefore, submitted that the

Assessing Officer, taking into consideration the volatility of the

share price of the script sold by the asssessee, was justified in

relying upon the report of the Investigation Wing of Kolkata as well

as the fact that the SEBI has suspended the transaction of the said

script for some time and accordingly, the Assessing Officer was

justified in making addition of unaccounted income of the assessee

on the ground of accommodation entries availed by the assessee.

[15] It was further submitted that the CIT(A), after considering

the documents available on record, has upheld the view taken by

the Assessing Officer. It was submitted that the Tribunal, after

considering the submissions made by the assessee and the

Departmental Representative, allowed the appeal. It was submitted

that the Tribunal, therefore, contrary to the facts and evidence on

record, has allowed the appeal without considering the findings of

the Assessing Officer and the CIT(A) in its true perspective.

[16] Considering the contentions raised on behalf of the Revenue,

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the Tribunal has arrived at a finding of fact that shares of Sunrise

Asian Ltd. sold by the assessee cannot be doubted as bogus and

exemption under Section 10(38) of the Act was rightly availed by

the assessee. The Tribunal has also concluded that the presumption

drawn by the Assessing Officer was not corroborated by any

evidence to establish the alleged non-genuine transaction by the

assessee. It was, therefore, rightly held by the Tribunal that the

claim of the assessee for exemption of Long Term Capital Gains

under Section 10(38) of the Act cannot be held to be bogus on the

basis of presumption in absence of any evidence brought on record

by the assessee with regard to shares of Sunrise Asian Ltd, which is

not even found to be rigged by the SEBI also. The Tribunal has also

considered that the assessee held the shares for two and half years

and after holding the shares for a long period, the same were sold

by the assessee and therefore, reliance was placed on the decision

of this Court in the case of Jagat Pravinbhai Sarabhai (supra),

wherein this Court has held as under:

"5. The genuineness of investment in the shares by the assessee was substantiated by him by producing copy of transaction statement for the period from 1.6.2001 to 1.10.2010. The investment was made in the year 2000-01. The shares were

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retained for more than ten years and were sold after such long time. These circumstances suggested that the investment was not bogus or investment made in penny stock. The shares were purchased in order to invest and not for the purpose of earning exempted income by frequent trading in short span.

6. The finding recorded by the appellate authority and confirmed by the appellate tribunal is based on material before them. They are in the realm of findings of fact. No error could be noticed in the findings and conclusion that the investment was longstanding and genuine and was not penny stock on the basis of which the capital gain was wrongly claimed.

6.1 On the facts of case, no question of law much less substantial question of law arises.

7. Resultantly, appeal is dismissed."

[17] In view of the above, we are of the opinion that no question

of law much less any substantial question of law arises from the

impugned order passed by the Tribunal. The appeal, being devoid

of any merit, is, accordingly, dismissed.

(BHARGAV D. KARIA, J)

(NIRAL R. MEHTA,J) CHANDRESH

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