ASSTT. COMMISSIONER OF INOCME TAX CENTRAL CIRCLE-2(2), NAGPUR V. SHRI SUDHIR RAMSWAROOP SARDA , NAGPUR

ITA 103/NAG/2019

AI Insights

The case revolves around the appeal by the Assistant Commissioner of Income Tax against the order of the CIT(A) which had favored the assessee, Shri Sudhir Ramswaroop Mundra. The primary issue was the addition of Rs. 2,52,47,265 made by the Assessing Officer under section 68 of the Income Tax Act, 1961, treating the long-term capital gains as unexplained cash credits. The CIT(A) found that the gains were genuine and the transactions were conducted through proper banking channels and on a recognized stock exchange, thus eligible for exemption under section 10(38). The Tribunal agreed with the CIT(A), noting that the Assessing Officer had not provided concrete evidence to substantiate the claim that the transactions were sham or involved price rigging.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 24165 (ITAT-NAGPUR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Other Referred Cases: Sumati Dayal Vs. CIT, P. Mohan Kala and others Vs. CIT, NRA Iron and Steel Pvt. Ltd Vs. CIT, Mont Blanc Properties and Industries Pvt Ltd Vs. CIT, State Bank of Patiala Vs. S.K. Sharma, Kanpur Coal Syndicate Vs. CIT, Mukesh Ratilal Marolia Vs. CIT, Jamnadevi Agrawal Vs. CIT, Shyam R. Pawar Vs. CIT, Pramod Jain & 4 Others Vs. DCIT, Vivek Agrawal Vs. ITO, Chirag Tejprakash Dangi Vs. ITO, Vikram N. Chandan Vs. ITO, Amrita Abhishek Doshi Vs. DCIT, Smt. Hema Ramesh Jain Vs. ITO, PCIT Vs. Ziauddin Siddique, PCIT Vs. Smt. Krishna Devi, PCIT Vs. Prem Lal Gandhi
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY Y. MARATHE; MERELY
• Assessee Lawyers: KAPIL HIRANI
• Keywords: Set aside; Speculation loss; Capital asset; Additional evidence; Question of law; Unexplained cash credit; Unexplained investment; Income from undisclosed sources; Capital Gains; Sham transactions; Accommodation entries; Earning of tax free income; Share purchase agreement; Opportunity of cross examination; Bogus
• Section: 143(3); 142(1); 143(2); 139(1); 69

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI K.M. ROY, ACCOUNTANT, MEMBER ITA no.103/Nag./2019 (Assessment Year : 2014–15) Asstt. Commissioner of Income Tax Central Circle–2(2), Nagpur ……………. Appellant v/s Shri Sudhir Ramswaroop Mundra 20/3, Piyadashini Colony RTO, Giripeth, Nagpur 440 010 PAN – ACWPM7113L ……………. Respondent Assessee by : Shri Kapil Hirani Revenue by : Shri Abhay Y. Marathe Date of Hearing – 12/02/2025 Date of Order – 21/03/2025 O R D E R PER K.M. ROY, A.M. By this appeal, the assessee has challenged the impugned order dated 27/03/2019, passed by the learned Commissioner of Income Tax (Appeals)–3, Nagpur, [“learned CIT(A)”], for the assessment year 2014–15. 2. Following grounds have been raised by the assessee:– “(i) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 2,52,47,265/- made by Ld. AO u/s 68 of the I. T. Act, 1961 on account of long term capital gain claimed as exempt income u/s 10(38) without appreciating that it was a bogus accommodation entry. (ii) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs. 2,52,47,265/- made by the AO on sale proceeds of the share u/s 68 of the I.T. Act., without appreciating the fact that as per investigation done by income tax Department (Inv), Kolkata dated 27.04.2015, specific findings in reference to transactions in the scrip M/s Luminarie Technologies Ltd clearly establishing the fact that the scrip was a 2 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 penny stock and the transaction was made to generate bogus long term capital gain for the beneficiaries, one of them being the assessee. (iii) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate the financials of M/s Luminaire Technologies Ltd enumerated at Para 3.3 of the assessment order on whose share the assessee alleged to have earned enormous Long Term Capital Gain. (iv) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that M/s Luminaire Technologies Ltd is only a paper company literally having no business operations. (v) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that M/s Luminaire Technologies Ltd, a penny stock company, does not have any worthwhile asset, creditworthy business, strong financials or any other indicator to justify its soaring share prices which has been manipulated to give accommodation entries in the form of bogus long term capital gains to beneficiaries. (v) (vi) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate the ground realities that the documents in the case of shell companies are always in order so that they can act as a conduit in aiding tax evasion. (vii) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that documents are manufactured to give genuineness to the otherwise coloured transaction aiding in tax evasion. (viii) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate the role of entry operators in artificially hiking the share price of M/s Luminaire Technologies Ltd to enable the assessee to legitimise his unaccounted fund. (ix) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the entire gamut of direct and circumstantial evidence placed on record shows that claim of Long Term Capital Gain is Bogus in nature. (x) On the facts and circumstances of the case, the Ld. CIT(A) failed to appreciate that the onus was on the assessee to produce the parties to prove the bonafide of the sale of the shares and sale proceeds received. (xi) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the true nature of transactions have to be ascertained in the light of surrounding circumstances as held by Hon'ble Supreme Court in the case of Sumati Dayal Vs. CIT(214 ITR 801). (xii) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the transaction through banking channel is not always genuine as held by Hon'ble Supreme Court in P.Mohan kala and others (291 ITR 278). 3 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 (xiii) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the transaction through bank is executed to make the otherwise colourable transaction appear genuine. (xiv) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that even if documentary evidence is produced, the same must pass the test of human probabilities and surrounding circumstances if they do not, then the claim so made fails. (xv) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs.2,52,47,265/- made by the AO on sale proceeds of the share u/s 68 of the I.T. Act. without appreciating the fact that the assessee has failed to establish the financials and operation of the company to prove the enormous rise in share value and thereby the genuineness of the transactions to the satisfaction of the AO, thereby ignoring the Apex Court decision in the case Pavankumar M. Sanghvi Vs Income-tax officer (Special leave to appeal © No(s) 10250 of 2018 and NRA Iron and Steel Pvt. Ltd (SLP (Civil) No. 29855 of 2018) dated 5th March, 2019 on same facts. (xvi) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the word 'evidence' as used in section 143(3) is comprehensive enough to cover circumstantial evidence also, and it is not confined to direct evidence. (xvii) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that under the tax jurisprudence, the word 'evidence' had much wider connotations and the use of word 'material' in section 143(3) shows that the assessing officer, not being a court could rely upon material, which might not strictly be evidence admissible under the Indian Evidence Act for the purpose of making an order of assessment. (xviii) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate the plain reading of section 142 and 143 clearly suggests that the assessing officer may also act on the material gathered by him and the word 'material' clearly shows that the assessing officer is not fettered by the technical rules of evidence and the like, and that he may act on material which may not strictly speaking be accepted evidence in court of law. (xix) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate the decision of the Hon'ble ITAT Bombay Bench \"B\" (ITA No. 614/Bom/87 A.Y. 1983-84) in the case of M/s Mont Blanc Properties and Industries Pvt Ltd which was upheld by the Hon'ble Supreme Court where what constitute evidence under tax jurisprudence is clearly explained. (xx) On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that strict principles of Indian Evidence Act are not applicable in Income tax Act and denial of opportunity of cross examination does not render the decision void ipso jure as held by Hon'ble Supreme Court in State Bank of Patiala Vs S.K. Sharma.? (xxi) On the facts and circumstances of the case, the Ld. CIT(A) erred in deleting the addition on technical grounds while failing to appreciate that 4 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 CIT(A)'s power is co-terminus with AO and she could have corrected the impugned error of AO clearly propounded in the decision of Hon'ble Supreme Court in Kanpur Coal Syndicate. (xxii) Any other question of law and fact to be raised at the time of appeal. (xxiii) It is humbly prayed to set aside the order of the CIT(A) and restore the order of the assessing officer.” 3. In the present case, the assessee, for the year under consideration, filed his original return of income under section 139(1) of the Income Tax Act, 1961 (\"the Act\") on 05/08/2014, declaring total income of ` 23,63,330 and the case was selected for scrutiny. Statutory notices under section 143(2) / 142(1) of the Act were issued and duly served on the assessee. The Assessing Officer noticed that the assessee had declared long term capital gains of ` 2,47,08,362 and claimed the same as being exempt under section 0(38) of Act. The assessee purchased 50,000 shares of Luminaire Technologies Ltd., for ` 5,00,000, in physical form which has been later dematerialized. The shares have been sold at an average rate of ` 50.49 per share. The total sale proceeds amounting to ` 2,52,47,265 and the LTCG on the same amounts to ` 2,47,08,362, which is exempt under section 10(38) of the Act. The Assessing Officer concluded the assessment holding that the claim of the assessee of exempt LTCG amounting to ` 2,47,08,362, cannot be allowed and the assessment order was passed making addition of ` 2,52,47,265 on account of unexplained cash credits under section 68 of the Act. 4. On appeal, the learned CIT(A) held that the addition made by the Assessing Officer on the basis of inference and presumption is found unsustainable and hence the learned CIT(A) directed to delete the addition of 5 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 ` 2,52,47,265, made by the Assessing Officer on account of unexplained cash credits under section 68 of the Act. The detailed observations of the learned CIT(A) are as under:– “7. Ground nos.1 and 2: Addition of ` 2,52,47,265, on account of unexplained cash credits u/s 68 of the I.T. Act, 1961. I have carefully considered facts of the case, the grounds of appeals and submissions of the AR. I have also examined the material on record and considered the judicial pronouncements cited by the AR. I have perused the assessment order and the remand report of the AO. The fact of the case are that during the year under consideration the 7.1 The appellant had purchased 50,000 shares of M/S Paridhi Properties Ltd on 22/03/2011 directly from the company at a consideration of Rs.5,00,000/-. The appellant has purchased 50,000 shares @ Rs.10 per share. The payment for purchase consideration was made through banking channel by cheque nos. 019801, 019803, 019802, and 019804 for an amount of Rs. 1.25,000/- each dated 10.03.2011 of HDFC Bank. At the time of purchase of shares, M/S Paridhi Properties was a Private Limited Company. Post investment in shares of M/s Paridhi Properties Pvt Ltd, the said company amalgamated with M/S Luminiare Technologies Ltd. on 04/09/2012 and the merger was approved by Hon. Bombay High Court. M/s. Luminaire Technologies is listed on Bombay Stock exchange. Thus, as a result of amalgamation, appellant received shares of M/s Luminaire Technologies in exchange of shares of M/s Paridhi Properties Ltd. The appellant received shares in the ratio of 1:10. The appellant received 5,00,000 shares of Rs.1 in exchange of 50,000 shares of Rs. 10 in M/s.Paridhi Properties Ltd. The shares were demated on 01.11.2012. 7.2 During the year under consideration, i.e., A.Y. 2014-15, after holding the shares for about 25 months from the original purchase, appellant sold entire holding of M/S Luminaries Technologies of 5,00,000/- shares at Rs. 2,52,47,265/- through Broker HDFC Securities Ltd (stock broker) online on Bombay Stock Exchange. The appellant has also paid the required Securities Transaction Tax on this. On this sale transaction of shares, the appellant claimed Long term capital gain of Rs. 2,47,08,362/. The AO on the basis of report of Investigation conducted by Principal Director of Income Tax (Investigation) Kolkata, considered that the entire share transaction as sham and disallowed the exemption claimed u/s 10(38). 7.3 During the appellate proceedings, the AR submitted that he has submitted all requisite details and sanctity of same has never been questioned or disputed by the AO. Even during the appellate proceedings, appellant submitted: 1) Photocopy of Share certificates, 2) Photocopy of cheques through which payment was made for purchase of shares, 3) Photocopy of bank account, 4) Demat Statement and trading account. 6 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 The appellant's written submission along with all the documents were sent in remand proceedings to the AO. The AO objected to the acceptance of additional evidence and stated that all this documents were never submitted during the assessment proceedings. The remand report of the AO was shared with the appellant. The appellant filed rejoinder to the aforementioned remand report. The appellant rebutted the observation of the AO that no document was submitted during the assessment proceedings. Appellant submitted that the assessment order nowhere observes that appellant has failed to submit requisite details, and the appellant also highlighted the Para 2 of the Assessment Order which stated that \"Notice u/s 142(1) was issued on 04.07.2016 and 29.06.2016. In response to the said notice, Shri Sudhir Baheti CA and authorized representative of the assessee attended and furnished the details called for during the assessment proceedings\". 7.4 I have gone through the appellant's rejoinder and also AO's remand report. The request of the AO that additional evidence may not be accepted, cannot be acceded too. It is the first time in the remand proceedings, that the AO has levelled an allegation that no details were submitted during the assessment proceedings. The observation of the AO is contradictory with the facts on records, as the Assessment Order clearly mentions in Para 2 that representative for assessee attended and furnished details called during the assessment proceedings. Even in the assessment order, the AO has nowhere stated or observed that appellant has failed to submit documents. The fact that assessment order is passed under section 143(3) and not under section 144, gives credence to the submission of the appellant that requisite details were submitted during the assessment proceedings. Even otherwise, all this documents were again forwarded to the AO during remand proceedings. The AO did not dispute the sanctity of the documents submitted. Therefore, for all the above stated reasons, the request of AO to not accept additional evidence is not considered, as without cause. 7.5 In para 3.5 line 3 of the Assessment Order, the AO has quoted that - \"It was further seen that it was a one-time transaction and he was not active in stock market.... The past records of assessee for preceding years, shows that the assessee is not active in the stock market. This being the case, the assessee was entered into a sham transaction with the full knowledge of it, so as to convert unaccounted money into accounted money in the guise of capital gains.\" During the appellate proceedings, the AR has submitted that the above observation of the AO is factually incorrect. The AR stated that the appellant is not new to share market and he has earlier transacted in share market and also reported in the income tax return, resultant gain or losses. He submitted ITR & Computation of A.Y. 2010-11 and A.Y. 2011-12, where in the appellant has reported speculation loss of Rs. 6,29,086/- and Rs. 27,63,533/- for A.Y. 2010-11 and A.Y. 2011-12 respectively. The aforementioned submission of the appellant and supporting ITR & Computation was also forwarded to the AO in remand proceedings. The AO has not controverted the appellant's submission. Therefore, the observation of the AO that this was one time transaction and the appellant was not active in stock market, is contradictory to the facts on records. 7 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 7.6 The AO has elaborately discussed the modus operandi adopted by certain persons to convert unaccounted into accounted money by relying on the investigations carried out by the DIT(Investigation) Kolkata, wherein during the course of Investigation, few brokers were questioned and those brokers had confessed of providing accommodation entries. The assessment order also listed the names of such brokers and their confessionary statements of indulging in penny stock transactions of company Luminaries Technologies Ltd'. However, in the aforementioned list nowhere the name of the broker of the appellant (i.e. HDFC Securities Ltd) is mentioned. The appellant has sold his entire shareholding through stock broker 'HDFC Securities'. 7.7 The AO has not brought on record any direct or indirect circumstantial evidence on the basis of which it can be concluded that the transaction entered by the appellant is a sham or arranged transaction. Thus, I find that the AO has erred in drawing adverse inference against the appellant by merely referring to alleged modus operandi presumed to be carried out by certain persons who were not connected with the appellant. 7.8 The AO has also observed in para 3.3 of his order that the share prices of the company were artificially rigged to an unusual high and the company had no worthwhile asset or creditworthy business or strong financials to justify the soaring share prices. Even though the observation of the AO that company has no proven credentials to justify soaring prices is considered, the fact that the shares are listed on recognised stock exchange and share prices are market driven negates the argument of the AO that share prices are abnormal. During the appellate proceedings, the appellant has submitted that during the relevant period (i.e.) 01/04/2012 to 31/03/2014, a total of 22,24,44,695 shares were traded on 498 days. The average daily turnover of shares were 4,46,676 shares, (i.е.) on an average shares worth Rs. 2,00,19,177/- were traded on Bombay Stock Exchange at an average price of Rs 44.82 per share. The appellant further submitted that for almost two years, share prices were in the range of Rs. 30 to Rs. 54 (approx). This submission of the appellant and day wise tabulated share price movements (which was submitted during the appellate proceedings) were forwarded to the AO in remand proceedings. The AO has not controverted the appellant's submission that said shares were regularly traded on the BSE. Therefore, I don't find force in the observation of the AO that share prices of the appellant are abnormal. 7.9 The entire addition of the AO is built on the premises that the appellant had obtained accommodation entries. The AO has not brought on record any evidence to prove connivance of the appellant with the broker. The AO has also not doubted the source of investment, and the entire transaction was carried on the floor of the Bombay Stock Exchange, i.e., BSE, and STT was duly paid by the appellant. 7.10 The addition made by the AO is purely on the basis of suspicions. It is an accepted jurisprudence that suspicion or doubt, how-so-ever strong, cannot take the place of evidence. In view of the above, the appellant, in my Considered view, has duly discharged the onus that lies on him, in catablishing the genuineness of the transactions, and that being so, it was for the AO to disprove the claim of the appellant, by bringing on record credible evidence to the contrary. On the basis of facts, the addition made is found untenable. 8 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 7.11 The AO while framing the assessment order also relied on the judgments of Mumbai Tribunal in the case of Ratnakar M Pujari & Usha Chandresh Shah. I have gone through facts of both the cases and it is observed that the facts of the cases before Tribunal are completely distinguished when compared to that of the appellant. Even the judgment of Indore Tribunal in the case of Neeraj Panjwani is not applicable to the facts of the appellant's case. 7.12 The appellant has relied on the judgment of Hon'ble jurisdictional Bombay High Court in case of CIT Vs Mukesh Ratilal Marolia, Shyam Pawar & Jamnadevi Agrawal. The submission of the appellant relying on all the aforementioned judgments was forwarded to the AO in the remand proceedings. The AO did not controverted the applicability of aforementioned judgments. However, the AO has placed reliance on the judgment of Bombay High Court in the case of Sanjay Bimalchand Jain L/H Shanti devi Bimalchand Jain V/s PCIT (ITA No.18/2017)to contend that the addition made by the AO should be sustained. 7.13 The facts of the Appellant's case are different as compared to the facts before High Court in the case of Sanjay Bimalchand Jain V/s PCIT. The basic and vital differences are that the appellant had acquired shares by making payments through account payee cheque, and not though cash payment. The source of investment is not doubted by AO in appellant's case, but was doubted in the referred case as not substantiated. The addresses of the broker and that of the company in which assessee had made investment were same in the referred case but no such fact finding has been observed and recorded by the AO in the present case. In the above referred case, the addition is made on the specific fact finding that the broker of the assessee did not reply to the AO's letter. However, in the case of the appellant no such adverse fact finding has been recorded byteh A.O. Thus, the abovementioned judgment of the Hon'ble Bombay High Court has been rendered on specific and peculiar facts of that case. In view of the above distinguishable facts of the case, the reliance placed by the AO on aforementioned judgment is found not applicable. 7.14 The appellant has stated that his case is squarely covered by the judgment of Jurisdictional Bombay High Court in the case of CIT v. Shri Mukesh Ratilal Marolia (ITA 456 of 2007) wherein it has been held as under: \"6 Similarly, the sale of the said shares for Rs. 1,41,08,484/-through two Brokers namely, M/s Richmond Securities Pvt. Ltd. and M/s. Scorpio Management Consultants Pvt. Ltd. cannot be disputed, because the fact that the Assessee has received the said amount is not in dispute. It is neither the case of the Revenue that the shares in question are still lying with the Assessee nor it is the case of the Revenue that the amounts received by the Assessee on sale of the shares is more than what is declared by the Assessee. Though there is some discrepancy in the statement of the Director of M/s. Richmond Securities Pvt. Ltd. regarding the sale transaction, the Tribunal relying on the statement of the employee of M/s. Richmond Securities Pvt. Ltd. held that the sale transaction was genuine. 7. In these circumstances, the decision of the ITAT in holding that the purchase and sale of shares are genuine and therefore, the AO was not justified in holding that the amount of Rs. 1,41,08,484/- represented 9 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 unexplained investment under Section 69 of the Income Tax Act, 1961 cannot be faulted.\" (Emphasis Supplied) It is observed that the SLP filed by the Department against decision of Hon'ble Bombay High Court in the case of Mukesh Marolia (ITA 456 of 2007) has been dismissed by the Hon'ble Supreme Court of India. 7.15 Similar issue was also decided in assessee'sfavour in CIT v. Smt. Jamnadevi Agrawal (328 ITR 656) (Bom) wherein it has been held as under: \"Held that from the documents produced before the Court it was seen that the shares in question were, in fact, purchased by the assessees on the respective dates and the company had confirmed to have handed over the shares purchased by the assessees. Similarly, the sale of the shares of the respective buyer was also established by producing documentary evidence. It is true that some of the transactions were off-*market transactions. However, the purchase and sale price of the shares declared by the assessees were in conformity with the market rates prevailing on the respective dates, as was seen from the documents furnished by the assessees. Therefore, the fact that some of the transactions were off-market transactions could not be a ground to treat the transactions as sham transactions.\" (Emphasis Supplied). 7.16 In CIT v. Shyam R. Pawar (229 Taxman 256) (Bom)it has been held as under: \"Where demat account and contract note showed details of share transaction, and AO had not proved the said transaction as bogus, capital gain earmed on said transaction could not be treated as unaccounted income under section 68\" (Emphasis Supplied) 7.17 Recently, the Jaipur Tribunal, in two particular cases of Pramod Jain & 4 Others Vs DCIT & Vivek Agrawal Vs ITO has decided an appeal on similar facts. In both the cases, the assessee's had earned LTCG on sale of shares of Luminaries Technologies. In both the above cases, exemption revoked by the Assessing Officer was reinstated by the Hon'ble ITAT as those assessees had duly substantiated the genuineness of transaction by submitting all requisite details and documents and Assessing Officer has not been able to bring any evidence to buttress his theory of sham transactions. 7.18 To sum up, the evidences on record of the purchase of shares establishes the fact that transactions are genuine and these have not been found non- genuine by the AO, and are further corroborated with legally accepted documentary evidences which are part of record. The sale of such shares is through recognized stock exchange and all necessary evidences for the same is also part of the record, and these have not been refuted or controverted by the AO. Considering all these evidences, the receipt of sale proceeds of shares stands established and cannot be considered to remain unexplained credit at the hands of the appellant. The provisions of sec. 68 are inapplicable to sale proceeds of shares that are supported by legally accepted evidences on record. In fact, the requisite conditions for claim of exemption u/s 10(38) of I.T. Act 1961 are satisfied and the claim of appellant is is found as correct and justified. The A.O. has made the addition merely on the basis of findings and Investigation by Investigation Wing, Kolkata, without bringing on record any 10 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 adverse findings directly related to the appellant. For the detailed reasons enumerated in the paragraphs hereinabove, and the judicial precedents discussed therein, the addition made by the A.O. on the basis of inference and presumption is found unsustainable.” 5. Before us, the learned Departmental Representative heavily placed reliance on the order passed by the A.O. He submitted that the transactions are all colourable device and has been entered as a subterfuge with sole intention for tax evasion and to bring unaccounted income of the assessee back to books under the garb of exempt income. Accordingly, he contended that the impugned order passed by the learned CIT(A) should be reversed. 6. The learned Counsel for the assessee furnished a gist of submissions which are as under:– “The dispute in the present appeal pertains to Long-Term Capital Gain from sale of shares declared by the Assessee at Rs. 2,47,08,362 and same is exempt under section 10(38) of the Income Tax Act, 1961 (\"Act\") and which has been disallowed by the AO and treated the sale consideration on sale of shares of Rs. 2,52,47,265 as unexplained cash credit under section 68 of the Act. 2. The addition so made has been deleted by the Hon'ble CIT(A) against which the Revenue is in appeal before this Hon'ble Tribunal. Facts: 3. The Assessee purchased 50,000 shares of M/s Paridhi Properties Ltd. on 22.3.2011 for an amount of Rs. 5,00,000 and which were purchased directly from the company and later dematerialised. The purchase consideration was paid through and the source of investment was out of the regular income. Copy of share allotment advice dated 23.3.2011 enclosed at pages 47-50 of the paper book. Copies of share certificates enclosed at pages 51-54 of the paper book. Copy of HDFC bank demat shares acknowledgement letter enclosed at page 55 of the paper book. Copy of NSDL demat statement enclosed at page 56 of the paper book. Copy of HDFC bank saving account showing the impugned transaction of purchase enclosed at page 57 of the paper book. 4. M/s Paridhi Properties Ltd. amalgamated with M/s Luminaire Technologies Ltd. on 4.9.2012 and the said merger was approved by Hon'ble Bombay High 11 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 Court. As a result of the amalgamation, the Assessee was allotted 5,00,000 shares of M/s Luminaire Technologies. 5. During the impugned AY 2014-15, the Assessee sold entire stockholding of M/s Luminaire Technologies Ltd. for Rs. 2,52,47,265 on which Securities Transaction Tax was paid by the Assessee resulting in a Long-Term Capital Gain (LTCG) of Rs. 2,47,08,362 which was claimed exempt under section 10(38) by the Assessee. The entire sale transaction was carried out at Bombay Stock Exchange through licensed stockbroker HDFC Securities, and the sale consideration was received in the bank account of the Assessee. The total holding period of the shares by the Assessee is between two to two and half years. 6. Copy of HDFC securities share transaction statement enclosed at page 58 & 59 of the paper book. Copy of saving bank account of the Assessee wherein the sale consideration has been received enclosed at pages 60-69 of the paper book. Copy of contract notes of HDFC securities enclosed at pages 78-130 of the paper book. 7. During the course of appellate proceedings before the Ld. CIT(A) remand report was also called from the AO which is at pages 138-140 of the paper book against which rejoinder was filed which is at pages 131-137 of the paper book. 8. The Ld. CIT(A) allowed the appeal of the Assessee and held that the impugned transaction of sale of shares satisfies all the criteria for claim of exemption under section 10(38) of the Act and relied upon various judicial precedents in this regard. 9. The Ld. CIT(A) has correctly held that the transaction of the sale of shares is a LTCG exempt under section 10(38) of the Act. 10. The Assessee submits that the transaction of sale of shares being through proper banking channels, on recognised stock exchange, security transaction tax having been paid on the same and the shares undisputedly being long- term capital asset classified as LTCG which has rightly been claimed as exempt under section 10(38) of the Act and which has further rightly been upheld by the Ld. CIT(A). 11. The Assessee places reliance on the decision of the Ld. CIT(A). 12. The Assessee further places reliance on the following judicial precedents in support of the Assessee: 12.1. PCIT Vs. Ziauddin Siddique (Bombay HC) - wherein the Hon'ble Bombay HC has refused to interfere with the order of the Hon'ble ITAT more particularly as there was no allegation that the Assessee was engaged in price rigging. 12.2. PCIT Vs. Smt. Krishna Devi (Delhi HC) - wherein it has been held that the fact that there was an astounding 4849.2% jump in the share price within two years, which is not supported by the financials, does not justify the AO's 12 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 conclusion that the assessee converted unaccounted money into fictitious exempt LTCG to evade taxes. The finding is unsupported by material on record & is purely an assumption based on conjecture. The theory of human behavior and preponderance of probabilities, based on Sumati Dayal v. CIT 214 ITR 801 (SC), cannot be cited as a basis to turn a blind eye to the evidence. 12.3. Pr. CIT Vs. Prem Lal Gandhi (P&H HC) - wherein it has been held that the fact that the appreciation in the value of the shares is high does not justify the transactions being treated as fictitious and the capital gains being assessed as undisclosed income if (a) the shares are traded on the Stock Exchange, (b) the payments and receipts are routed through the bank, (c) there is no evidence to indicate it is a closely held company and (d) the trading on the Stock Exchange was manipulated in any manner. 12.4. CIT Vs. Smt. Jamnadevi Agrawal & Ors. (2010) 328 ITR 656 (Bombay HC Nagpur Bench) Held that in light of the documentary evidence adduced to show that the shares purchased and sold by the Assessee were in conformity with the market price, the Tribunal recorded a finding of fact that the cash credits in the buyers bank account cannot be attributed to the Assessee and accordingly no fault can be found with the order of the Tribunal. 12.5. Shri Pramod Jain Vs. DCIT-ITAT Jaipur - Additions pertaining to sale of shares of Luminaire Technologies Ltd. deleted. 12.6. Shri Vivek Agrawal Vs. ITO - ITAT Jaipur - Additions pertaining to sale of shares of Luminaire Technologies Ltd. deleted. 12.7. Chirag Tejprakash Dangi Vs. Ito (ITAT Mumbai) - Held that on facts, as sale and purchase of shares made on online platform and the AO having made addition on mere assumption and presumption etc. the additions are liable to be deleted. 12.8. Vikram N. Chandan V. Income-tax Officer [2024] 165 taxmann.com 340 (Mumbai - Trib.) - Held that where there was nothing on record from market regulator SEBI for relevant period which established 'tainted' status of scrip involved in sale of shares by assessee so as to hold share sale transactions as bogus/accommodation entry as alleged by Assessing Officer, impugned addition made under section 68 towards proceeds of sale of listed shares was to be deleted and have considered the judgement of Hon'ble Calcutta High Court in the case of Swati Bajaj. 12.9. Amrita Abhishek Doshi vs. Deputy Commissioner of Income-tax - [2024] 167 taxmann.com 377 (Mumbai - Trib.) No additions towards bogus LTCG if assessee duly sold shares on recognised stock exchange. 12.10.Smt. Hema Ramesh Jain vs. Income-tax Officer [2024] 162 taxmann.com 440 (Mumbai Trib.) No sec. 68 additions towards LTCG on sale of shares merely relying upon general report of investigation wing - Where assessee claimed LTCG on sale of shares as exempt under section 10(38), since assessee in order to prove transaction of purchase & sale of shares had filed primary documents like debit-note, share certificate and demat statement, etc., and further, fact of sale of shares through stock exchange was proved by copy of contract of sale of shares and that purchase 13 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 consideration for sale of shares had passed through banking channel, impugned claim made by assessee was to be allowed.” 7. The learned Counsel, apart from the above submissions, further submitted that the Hon’ble Apex Court in PCIT v/s Smt. Renu Aggarwal, [2023] 456 ITR 249 (SC) has affirmed the decision rendered by the Hon’ble Allahabad High Cuort, wherein the Hon’ble High Court held that the Assessing Officer could not have made the addition on the basis of the fact pertaining to completely unrelated person. In the instant case also, the Assessing Officer has drawn adverse inference on the basis of the general report given by the Investigation Wing. 8. We have given a thoughtful consideration to the arguments made by the rival parties and perused the material available on record. We noticed that the Assessing Officer has primarily placed reliance on the report given by the Investigation Wing of the Income tax department, Kolkata, to arrive at the conclusion that the long term capital gains reported by the assessee is bogus in nature. We further noticed that the Investigation Report prepared by Investigation Wing, Kolkata, is general in nature with regard to the modus operandi adopted in manipulation of prices of certain shares and generation of bogus capital gains. We noticed that the Assessing Officer has placed reliance on the said report without bringing any material on record to show that the transactions entered by the assessee were found to be a part of manipulated transactions, i.e., it was not proved that the assessee has carried out the transactions of purchase and sale of shares in connivance with the people who were involved in the alleged rigging of prices. We also find that the 14 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 assessee has purchased these shares by paying consideration through banking channels; dematerialized the shares and kept the same in the demat account; sold the shares through stock exchange platform and received the sale consideration through banking channels. Further, the shares have entered and exited the demant account of the assessee. We notice that the Assessing Officer himself has not found any defect/deficiencies in the evidences furnished by the assessee with regard to purchase and sale of shares. As noticed earlier, the Assessing Officer has not brought on record any material to show that the assessee was part of the group which involved in the manipulation of prices of shares. Hence, there is no reason to suspect the purchase and sale of shares undertaken by the assessee. 9. We may now refer to certain discussions rendered by the Hon’ble Jurisdictional High Court on identical issue in CIT v/s Shyam R. Pawar, [2015] 54 taxmann.com 108 (Bom.), wherein the Court observed as under:– “\"3. Mr.Sureshkumar seriously complained that such finding rendered concurrently should not have been interfered with by the Tribunal. In further Appeal, the Tribunal proceeded not by analyzing this material and concluding that findings of fact concurrently rendered by the Assessing Officer and the Commissioner are perverse. The Tribunal proceeded on the footing that onus was on the Department to nail the Assessee through a proper evidence and that there was some cash transaction through these suspected brokers, on whom there was an investigation conducted by the Department. Once the onus on the Department was discharged, according to Mr.Sureshkumr, by the Revenue-Department, then, such a finding by the Tribunal raises a substantial question of law. The Appeal, therefore, be admitted. 4. Mr.Gopal, learned Counsel appearing on behalf of the Assessee in each of these Appeals, invites our attention to the finding of the Tribunal. He submits that if this was nothing but an accommodation of cash or conversion of unaccounted money into accounted one, then, the evidence should have been complete. Change of circumstances ought to have, after the result of the investigation, connected the Assessee in some way or either with these brokers and the persons floating the two companies. It is only, after the Assessee who is supposed to dealing in shares and producing all the details 15 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 including the DMAT account, the Exchange at Calcutta confirming the transaction, that the Appeal of the Assessee has been rightly allowed. The Tribunal has not merely interfered with the concurrent orders because another view was possible. It interfered. because it was required to interfere with them as the Commissioner and the Assessing Officer failed to note some relevant and germane material. In these circumstances, he submits that the Appeals do not raise any substantial question of law and deserve to be dismissed. 5. We have perused the concurrent findings and on which heavy reliance is placed by Mr.Sureshkumar. While it is true that the Commissioner extensively referred to the correspondence and the contents of the report of the Investigation carried out in paras 20, 20.1, 20.2 and 21 of his order, what was important and vital for the purpose of the present case was whether the transactions in shares were genuine or sham and bogus. If the purchase and sale of shares are reflected in the Assessee's DMAT account, yet they are termed as arranged transactions and projected to be real, then, such conclusion which has been reached by the Commissioner and the Assessing Officer required a deeper scrutiny. It was also revealed during the course of inquiry by the Assessing Officer that the Calcutta Stock Exchange records showed that the shares were purchased for code numbers S003 and R121 of Sagar Trade Pvt Ltd. and Rockey Marketing Pvt. Ltd. respectively. Out of these two, only Rockey Marketing Pvt.Ltd. is listed in the appraisal report and it is stated to be involved in the modus-operandi. It is on this material that he holds that the transactions in sale and purchase of shares are doubtful and not genuine. In relation to Assessee's role in all this, all that the Commissioner observed is that the Assessee transacted through brokers at Calcutta, which itself raises doubt about the genuineness of the transactions and the financial result and performance of the Company was not such as would justify the increase in the share prices. Therefore, he reached the conclusion that certain operators and brokers devised the scheme to convert the unaccounted money of the Assessee to the accounted income and the present Assessee utilized the scheme. 6. It is in that regard that we find that Mr.Gopal's contentions are well founded. The Tribunal concluded that there was something more which was required, which would connect the present Assessee to the transactions and which are attributed to the Promoters/Directors of the two companies. The Tribunal referred to the entire material and found that the investigation stopped at a particular point and was not carried forward by the Revenue. There are 1,30,000 shares of Bolton Properties Ltd. purchased by the Assessee during the month of January 2003 and he continued to hold them till 31 March 2003. The present case related to 20,000 shares of Mantra Online Ltd for the total consideration of Rs.25,93,150/-. These shares were sold and how they were sold, on what dates and for what consideration and the sums received by cheques have been referred extensively by the Tribunal in para 10. A copy of the DMAT account, placed at pages 36 & 37 of the Appeal Paper Book before the Tribunal showed the credit of share transaction. The contract notes in Form-A with two brokers were available and which gave details of the transactions. The contract note is a system generated and prescribed by the Stock Exchange. From this material, in para 11 the Tribunal concluded that this was not mere accommodation of cash and enabling it to be converted into accounted or regular payment. The discrepancy pointed out by the Calcutta Stock Exchange regarding client Code has been referred to. But the Tribunal 16 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 concluded that itself, is not enough to prove that the transactions in the impugned shares were bogus/sham. The details received from Stock Exchange have been relied upon and for the purposes of faulting the Revenue in failing to discharge the basic onus. ththe Tribunal proceeds on this line and concluded that inquiry was not Carried forward and with a view to discharge the initial or basic onus, then such conclusion of the Tribunal cannot be termed as perverse. The conclusions as recorded in para 12 of the Tribunal's order are not vitiated by any error of law apparent on the face of the record either. 7. As a result of the above discussion, we do not find any substance in the contention of Mr.Suresh kumar that the Tribunal misdirected itself and in law. We hold that the Appeals do not raise any substantial question of law. They are accordingly dismissed. There would no order as to costs. 8. Even the additional question cannot be said to be substantial question of law, because it arises in the context of same transactions, dealings, same investigation and same charge or allegation of accommodation of unaccounted money being converted into accounted or regular as such. The relevant details pertaining to the shares were already on record. This question is also a fall out of the issue or question dealt with by the Tribunal and pertaining to the addition of Rs.25,93,150/-. Barring the figure of loss that is stated to have been taken, no distinguishable feature can be or could be placed on record. For the same reasons, even this additional question cannot be termed as substantial question of law.\" 12. We may now refer to the decision rendered by Hon'ble Jurisdictional High Court in the case of PCIT vs. Ziauddin A Siddique (Income tax Appeal No. 2012 of 2017 dated 4th March, 2022) and relevant discussions made by Hon'ble Bombay High Court are extracted below:- “2. We have considered the impugned order with the assistance of learned counsels and we have no reason to interfere. There is a finding of fact by the Tribunal that the transaction of purchase and sale of shares of the alleged penny stock of shares of Ramkrishna Fincap Ltd (\"RFL\") is done through stock exchange and through the registered Stock Brokers. The payments have been made through banking channels and even Security Transaction Tax (\"STT\") has also been paid. The Assessing Officer also has not criticized the documentation involving the sale and purchase of shares. The Tribunal has also come to a finding that there is no allegation against the assessee that it has participated in any price rigging in the market on the shares of RFL. 3. Therefore we find nothing perverse in the order of the Tribunal. 4. Mr. Walve placed reliance on a judgement of the Apex Court in Principal Commissioner of Income tax (Central)-1 vs. NRA Iron & Steel (P) Ltd (2019)(103 taxmann.com 48)(SC) but that does not help the revenue in as much as the facts in that case were entirely different. 5. In our view, the Tribunal has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that question as pressed raises any substantial question of law. 17 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 In the case of CIT vs. Jamnadevi Agarwal (supra), the Hon'ble Bombay High Court held that the transactions of purchase and sale of shares cannot be considered to be bogus, when the documentary evidences furnished by the assessee establish genuineness of the claim. In the case of PCIT vs. Indravadan Jain (HUF) (supra), the broker through whom, the assessee had carried out the transactions have been alleged to have been indulged in price manipulations and the SEBI had also passed an order regarding irregularities and synchronized trades carried out in the shares by the said broker. However, the evidences furnished by the assessee with regard to purchase and sale of shares were not doubted. Under these set of facts, the Hon'ble Bombay High Court held as under:- \"....The CIT(A) came to the conclusion that respondent bought 3000 shares of RFL, on the floor of Kolkatta Stock Exchange through registered share broker. In pursuance of purchase of shares the said broker had raised invoice and purchase price was paid by cheque and respondent's bank account has been debited. The shares were also transferred into respondent's Demat account where it remained for more than one year. After a period of one year the shares were sold by the said broker on various dates in the Kolkatta Stock Exchange. Pursuant to sale of shares the said broker had also issued contract notes cum bill for sale and these contract notes and bills were made available during the course of appellate proceedings. On the sale of shares respondent effected delivery of shares by way of Demat instruction slips and also received payment from Kolkatta Stock Exchage. The cheque received was deposited in respondent's bank account. In view thereof, the CIT(A) found there was no reason to add the capital gains as unexplained cash credit under section 68 of the Act. The Tribunal while dismissing the appeals filed by the Revenue also observed on facts that these shares were purchased by respondent on the floor of Stock Exchange and not from the said broker, deliveries were taken, contract notes were issued and shares were also sold on the floor of Stock Exchange. The ITAT therefore, in our view, rightly concluded that there was no merit in the appeal.\" In the instant case also, we noticed that the evidences furnished by the assessee to prove the purchase and sale of shares, payment made/received, entry/exit of shares in the demat account of the assessee etc., were not doubted with. 13. In the case of PCIT vs. Smt Krishna Devi (supra), the Hon'ble Delhi High Court has noticed that the reasoning given by the AO to disbelieve the capital gains declared by the assessee, viz., astronomical increase in the price of shares, weak fundamentals of the relevant companies are based on mere conjectures. Accordingly, the Hon'ble Delhi High Court affirmed the decision rendered by ITAT in deleting the addition of capital gains. 14. Accordingly, in the facts and circumstances of the case, we are of the view that the decisions rendered by the jurisdictional Hon'ble Bombay High Court in the cases cited above shall apply to the present case, since the 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. 15. We noticed earlier that the AO has assessed the Sale consideration of shares as unexplained cash credit u/s 68 of the Act. It is pertinent to note that the purchase of shares made in an earlier year has been accepted by the 18 Shri Sudhir Ramswaroop Mundra ITA no.103/Nag./2019 revenue. The sale of shares has taken place in the online platform of the Stock exchange and the sale consideration has been received through the stock broker in banking channels. Hence, in the facts of the case, the sale consideration cannot be considered to be unexplained cash credit in terms of sec. 68 of the Act. 10. In view of the foregoing discussions, we hold that the sale consideration received on sale of shares cannot be assessed as unexplained cash credit u/s 68 of the Act and the long term capital gains declared by the assessee cannot be doubted with. Accordingly, we uphold the impugned order passed by learned CIT(A) and direct the Assessing Officer to delete the impugned addition made by him. Hence, the grounds raised by the Department are dismissed. 11. In the result, Department’s appeal stands dismissed. Order pronounced in the open Court on 21/03/2025 Sd/- V. DURGA RAO JUDICIAL MEMBER Sd/- K.M. ROY ACCOUNTANT MEMBER NAGPUR, DATED: 21/03/2025 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Nagpur; and (5) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Sr. Private Secretary ITAT, Nagpur "