Case Law Details
PCIT Vs Neelu Mahansaria (Gujarat High Court)
The Gujarat High Court dismissed the Revenue’s tax appeal filed under Section 260A of the Income Tax Act, 1961, challenging an order of the Income Tax Appellate Tribunal, Surat, for Assessment Year 2015–16. The Assessing Officer had completed scrutiny assessment by making additions of ₹25.26 lakh under Section 68 as undisclosed income from sale of shares of Mishka Finance & Trading Ltd., treated as a penny stock, and ₹1.26 lakh under Section 69C as unexplained commission expenditure. The Tribunal deleted both additions, holding the share transactions to be genuine.
Read SC Judgment in this case: 154-Day Delay: SC Dismisses Revenue Plea in Penny Stock Addition Case
Before the High Court, the Revenue raised multiple questions alleging that the Tribunal erred in accepting the transactions as genuine despite alleged abnormal price movements unsupported by financial fundamentals, and in ignoring circumstantial evidence and probabilities suggesting price manipulation and bogus long-term capital gains. It was also argued that commission payments were stage-managed to facilitate introduction of unaccounted income.
The High Court noted that identical issues for Assessment Year 2014–15 had already been decided against the Revenue, and that appeal had been dismissed earlier. Relying on the Tribunal’s findings, the Court observed that the assessee had produced complete documentary evidence, including contract notes, demat statements, bank details, and records of bonus shares. No adverse material was found by SEBI in its investigation into the company, and no allegation of price manipulation was made against the broker. Transactions were conducted through the BSE with payment of securities transaction tax. In the absence of cogent contrary evidence, the Court held that no substantial question of law arose and dismissed the appeal.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. Heard learned Senior Standing Counsel Mr. Karan G. Sanghani for the appellant.
2. This Tax Appeal is filed under Section 260A of the Income Tax Act, 1961 (for short ‘the Act’) raising following substantial questions of law arising out of the Judgment and Order dated 18.01.2024 passed by the Income Tax Appellate Tribunal, Surat (for short ‘the Tribunal’) in ITA No.893/SRT/2023 for the Assessment Year 20152016:-
“A. Whether on the facts and in the circumstance of the case and in law, the Hon’ble ITAT was justified in deleting the addition of sale proceeds of the share of Rs.25,26,325/- on account of undisclosed income u/s 68 of the Act made by the Assessing Officer arising out of sale of shares of M/s Mishka Finance & Trading 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?
B. 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 Himani M Vakil [2014] 41 com 425(Guj)[2014] and overlooking the circumstantial evidences and preponderance of the probability in the case?
C. 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. 1,26,316/- 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 transactions were stage managed with the object to facilitate the Assessee to plough back its unaccounted income in the form of fictitious Long Term Capital Gains of Rs.25,26,325/- and claim bogus exemption u/s.10(38) of the Act?
D. 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 M/s Mishka Finance & Trading Ltd as the upward movement of share price was not at all justified by the economic fundamental of company during the period 2011 to 2015?”
3. Brief facts of the case are that the assessee filed its return of income for Assessment Year 20152016 on 23.03.2016 declaring total income of Rs. 5,35,440/-.
4. The case of the assessee was selected for scrutiny assessment and statutory notices under section 143(2) and section 142(1) of the Act along with questionnaire were issued on 20.09.2016 and 31.05.2017 respectively.
5. The assessment under section 143(3) of the Act was completed on 21.11.2017 determining total income at Rs.31,88,080/- by making addition of Rs.25,26,325/- on account of undisclosed income under section 68 of the Act and Rs.1,26,316/- on account of unexplained expenditure under section 69C of the Act.
6. Being aggrieved, the assessee preferred an appeal before the Tribunal who vide order dated 18.01.2024 allowed the appeal of the assessee following its order dated 17.08.2023 in ITA No.197/SRT/2023 for Assessment Year 2014-2015 since both had the same grounds for appeal.
7. At the outset, learned Senior Standing Counsel Mr. Karan Sanghani for the appellant submitted that the order dated 18.01.2024 rendered in ITA No.197/SRT/2023 for Assessment Year 2014-2015 by the Tribunal was challenged before this Court by the Revenue by preferring Tax Appeal No.184 of 2024 and this Court (Coram : Hon’ble Mr. Justice Bhargav D. Karia and Hon’ble Mr. Justice Niral R. Mehta) dismissed the appeal filed by the Revenue as under:
“5. We have heard learned advocate for the appellant – revenue and have gone through the material produced on record and the orders passed by the authorities below.
6. At the outset, in our considered opinion, the findings recorded by the Tribunal deserve to be taken note of and thereby, extracted herein-below for the sake of brevity :
“9. I have considered the submission of both the parties and perused the order of lower authorities carefully. I find that the Assessing Officer doubted the transaction of assessee on the basis of report of Investigation Wing Kolkata. I further find that SEBI has initiated investigation in respect of Mishka Finance & Trading Ltd. I find that merely because there was allegation and investigation was done by SEBI against the company and assessee cannot be said to have enter into in genuine transactions. So far as assessee is concerned, she has no control over the activities of the brokers or price manipulation. I further find that assessee has furnished complete evidence including contract note of shares, demat details, detail of bonus shares. However, no adverse evidence was brought against such evidence. Nor the assessing officer made adverse comment on such evidences. I further find that SEBI made a through inquiry against Mishka Finance & Trading Ltd. and vide order dated 05.10.2017 that no adverse materials were found in the investigation report with respect to prima facie violation.
10. I find that Hon’ble jurisdictional High Court in the case of Himani M. Vakil (supra) held that where assessee duly proved genuineness of sale transaction by bringing on record contract notes of sale and purchase, bank statement of broker and demat account showing transfer in and out of shares, Assessing Officer was not justified in bringing to tax capital gain arising from sale of shares as unexplained cash credit. I further find that Hon’ble jurisdictional High Court in the case of Parasben Kasturchand Kochar (supra) also held that when assessee discharged his onus by establishing that transactions were fair and transparent and all relevant details with regard to transfer furnished by Income Tax Authority and the Tribunal have also took the notice of fact that the shares remained in the account of assessee, the assessee also furnished demat account and details of bank transaction about the sale and purchase of shares, the addition was deleted.
12. I find that assessee made sale of shares through BSE and paid security transaction tax and there is no allegation against the share broker through whom assessee has made sales that they were indulging any price manipulation. Therefore, I do not find any justification in treating the LTCG as unexplained cash credit in absence of any cogent evidence. In the result, the addition of undisclosed income under section 68 is deleted. Considering the fact that I have accepted the LTCG by deleting the addition made under section 68, therefore the addition of alleged commission payment is also deleted. This ground of assessee is also allowed.”
7. Considering the aforesaid observations and findings recorded by the Tribunal, we notice that the transaction of the assessee was doubted by the authority on the basis of the report of the Investigating Wing, Kolkata. It is pertinent to note at this stage that in furtherance to the aforesaid report, SEBI has undertaken a detailed inquiry against M/s. Mishka Finance & Trading Ltd. and in the said inquiry, vide order dated 5.10.2017, the SEBI has not found any adversarial material of any violation of statute. Over and above, admittedly, the assessee has also furnished complete evidence including contract note of shares, demat details, details of bonus shares and those evidences have not been doubted by the authorities.
8. At this stage also, it is required to be noted that the entire transaction was done by the assessee through the platform of BSE by paying necessary security transaction tax and the transaction was undertaken by the share brokers, no such allegation was made against the said broker for indulging in any price manipulation.
9. In view of the aforesaid, in our considered opinion, the questions of law framed by the appellant – revenue cannot be termed as substantial questions of law and thereby, the same deserve no interference. Accordingly, the present Tax Appeal is dismissed.
8. Adopting the same reasoning, this tax appeal is also dismissed as in our considered opinion, the questions of law framed by the appellant-Revenue cannot be termed as substantial questions of law and thereby the same deserve no interference.
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