×Latest Case Laws on Income Tax by various Income Tax Appellate Tribunals in India
These are the latest case laws decided by various Income Tax Appellate Tribunals (ITAT) of India on Income Tax which have been published recently. The case laws are open for discussion and we invite expert comments from our members on its applicability and effect on relevant issues.
09-01-2019, Sunil Kumar Lalwani, Section 10(38), 68, Tribunal Chennai
These two appeals are filed by the different assessees against the separate order of the Commissioner of Income-tax (Appeals)-10, Chennai in ITA No.178/16-17/CIT(A)-10 dated 30.01.2018 for the assessment year 2014-15 in respect of Shri Sunil Kumar Lalwani and in ITA No.179/16-17/CIT(A)-10 dated 22.12.2017 for the assessment year 2014-15 in respect of Shri Aashesh Kumar Lalwani. Since the issues raised in these two apples are interlinked, these two appeals are disposed of by this common order.
2. Mr.D.Anand represented on behalf of the Assessee, and Mr.AR.V.Sreenivasan represented on behalf of the Revenue.
3. It was submitted by ld.A.R that the issue in both the appeals are against the action of ld.CIT(A) in confirming the disallowance of exemptions claimed u/s.10(38) of the Act. The ld.A.R placed before us the written submissions in these appeals as follows:-
1. Off Market Purchase of shares is not illegal. The said proposition is affirmed by the Hon’ble Mumbai High Court in the case of Shri.Mukesh Ratilal Marolia. (Copy attached)
2. The transaction of purchase was off market and through proper banking channels while the sale transaction was only through online medium of stock exchange and payments were made only through account payee cheques and reflected in the books of accounts.
3. Although various investigations were carried out by different agencies, there is no evidence against the Assessee to hold that the Assessee was a beneficiary to the modus operandi adopted by different entities/ brokers / entry operators.
4. No evidence was submitted by the AO to prove that there is any allegation in orders of SEBI and/or the enquiry report of the Investigation Wing to the effect that the Assessee and/or his broker was a party to the price rigging or manipulation of price in BSE.
5. that there is no direct evidence against the Assessee brought on record by id AO to hold that the Assessee introduced its own unaccounted money by way of bogus LTCG. In the absence of the same disallowance cannot be made as against the assessee. Assessee places reliance on the judgment of the Delhi High Court in the case of PCIT Vs Laixman Industrial Resources (Copy attached)
6. The Assessee was a registered share holder of the company which remains undisputed by the department. Therefore the genuinity of the holding cannot be disputed.
7. The period of holding of the said shares and the fact that the Assessee had sold the shares after holding the same for a period exceeding 12 months would itself vindicate the stand that the transaction was genuine.
8. The Assessee has furnished all evidences in support of the claim that it earned LTCG on transactions of his investment in shares. The purchase of shares had been accepted by the department in the earlier years.
9. The purchase of shares and the sale of shares were also reflected in Demat account statements. The sale of shares suffered STT, brokerage etc. In the facts and circumstances of the case, it cannot be held that the transactions were bogus.
10. The Assessee has furnished all evidences in support of the genuineness of the transactions, the onus to disprove the same is on revenue and it is not enough for the revenue to show circumstances which might create suspicion because assessments cannot be made on the basis of suspicion.
11. The AC was not justified in taking an adverse view against the Assessee on the ground of abno mal price rise of the shares and price rigging. There is no allegation submitted by the AO to prove that there is any allegation in orders of SEBI and/or the enquiry report of the Investigation Wing to the effect that the Assessee and/or his broker was a party to the price rigging or manipulation of price in BSE.
12. The id AO was not justified in disallowing the Assessee’s claim of exemption under section 10(38) of the Act by concluding that the transactions of the Assessee resulting in LTCG on sale of shares of M/s were bogus by merely relying on a General investigation carried on by the Investigation Wing wherein these persons accepted to have provided accommodation entries of various natures including LTCG to different persons other than the assessee. Assessee places reliance on the judgment of the Delhi High Court in the case of PCIT Vs Laxman Industrial Resources (Copy attached)
13. The Assessee further relies on the Judgment of The Apex Court in the case of TEJUA ROHITKUMAR KAPADIA in support of the submission that no addition can be made under section 68 when the person through whom the shares were purchased are identifiable and the transaction of sale of shares and its genuiness cannot be disputed in the light of the fact that the