Income Tax Appellate Tribunal - Mumbai
Tekchand Rambhia Huf, Mumbai vs Assessee on 16 September, 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
'E' BENCH, MUMBAI
BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER
and
SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER
ITA No.960/Mum/2012
(Assessment year: 2008-09)
Tekchand Rambhiya HUF
602 & 602, Samp Residency,
TPS Road, No.57, Borivali(West),
Mumbai-400092. ... Appellant
PAN:AABHT1844C
Vs.
Income-tax Officer,
Ward 25(2)(2),
Mumbai. ... Respondent
Appellant by : Shri V.G.Ginde.
Respondent by: Shri Sumit Kumar (DR).
Date of hearing: 19/08/2015.
Date of pronouncement::16/09/2015
O R D E R
Per VIJAY PAL RAO, JM:
This appeal by the assessee is directed against the order dated 24/11/2011 of the CIT(A)-35, Mumbai, for the assessment year 2008-09.
2. The assessee has raised the following grounds:
1. "On the facts and in the circumstances of the case, and also in law, the learned CIT(A) erred in confirming the addition of Rs.48,59,131/- made by the learned Assessing Officer holding the sale proceeds of shares in Bolton Properties Ltd. received by the appellant as income from undisclosed sources.ITA No.960/Mum/2012
Tekchand Rambhiya, HUF Page 2 of 11
2. The learned CIT(A) failed to appreciate the documentary evidence placed on record by the appellant, and, therefore, confirmed the aforesaid addition based on mere suspicion, surmises and conjectures as well as irrelevant material.
3.The learned CIT(A) further erred in not appreciating your appellant's contention that the material relied upon by the Assessing Officer was not given to the appellant for rebuttal.
In light of above, your appellant prays for deletion of the aforesaid addition of Rs.48,59,131/-.
4.Your appellant craves leave to alter, modify, amend or delete any of the above grounds of appeal, or to add one or more new ground(s), as may be necessary."
3. The only issue arises from the grounds of the assessee is regarding long-term capital gains (LTCG) of Rs.47,82,952/- on account of sale of shares of M/s.Bolton Properties Ltd. ['BPL' for short] and claimed the same as exempt under section 10(38) of the income-tax Act,1961 ['the Act' for short]. In response to the query by the AO, assessee filed bill for purchase and sale of shares. The assessee claimed to have purchased shares on 11/4/2002 for a consideration of Rs.51,500/- and the same were sold on various dates in the years 2007 and 2008 for a consideration of Rs.48,59,131/-. The AO made reference to the intimation received from DDI, Calcutta vide letter dated 18/12/2007 in the case of Shri Amrutal H.Chithalia that the so- called capital gain arising on sale of shares of BPL is an arranged and had colourful transaction popularly known as 'Penny Stock transaction'. The AO sought information under section 133(6) from Calcutta Stock Exchange. In response to that the Calcutta ITA No.960/Mum/2012 Tekchand Rambhiya, HUF Page 3 of 11 Stock Exchange has informed the AO that no order was executed on 11/4/2002 by the broker M/s.Prakash Nahata & Co.,(Code No.274) in respect of the scrip of Scan Infrastructure Ltd., formerly known as BPL. On the basis of this information of the Calcutta Stock Exchange as well as information from DDI, Calcutta in the case of Shri Amrutal H.Chithalia, the AO treated the transaction as sham transaction and denied the claim of LTCG and consequently assessed the sale consideration as unexplained income of the assessee amounting to Rs.48,59,131/-.
4. The assessee challenged the action of the CIT(A) but could not succeed.
5. Before us, the learned authorized representative of the assessee has submitted that the assessee has purchased 15000 equity shares of BPL on 11/4/2002 at the total purchase price of Rs.61,800/-vide contract note dated 11/4/2002 and purchase bill No.137 dated 16/4/2002 issued by M/s.Prakash Nahata & Co. He has pointed out that the assessee has got this 15,000 shares of BPL consolidated and transferred vide certificate No.106120 of 22/4/2002. He has invited our attention to the copy of the certificate dated 22/2/2002. The learned authorized representative of the assessee has then submitted that these 15000 shares of BPL were Dematerialised on 23/5/2003 in DEMAT Account with Bank of India, Andheri (W), copy of Demat Account is placed at page 26 of the paper book. Thus the shares were held by the assessee in its aforesaid D-mat account since 2003 ITA No.960/Mum/2012 Tekchand Rambhiya, HUF Page 4 of 11 upto their sale in the year 2007 to the extent of 12,500 and balance of 2500 shares remained with the assessee. All these transactions are reflected in the Demat Account of the assessee from 2003 to 2008 at pages 15 to 26 of the paper book. Thus, the learned authorized representative of the assessee has submitted that when the shares were held by the assessee in Demat Account then the transaction of purchase cannot be held to be bogus or sham transaction. The AO has not disputed the sale transaction of the assessee and held the transaction of purchase as sham to deny the claim for LTCG of the assessee. The learned authorized representative of the assessee took us to Demat balances for all these years right from 2003 to 2008 and submitted that the assessee was holding these shares in its Demat account and also showing in the balance sheet since beginning therefore holding of these shares is not disputed and cannot be doubted, when the assessee is keeping these shares in the Demat account and also showing in the balance sheet since 2003 upto 2008. Learned authorized representative of the assessee has submitted that the transaction of purchase and claim of capital gain cannot be treated as bogus or sham when the assessee has produced all the relevant evidence including the purchase bill and contract note as well as Demat account. In support of his contention, he has relied upon the judgment of the Hon'ble jurisdictional High Court in the case of CIT vs Shankar Narayan (229 Taxman 256) and submitted that the Hon'ble High Court has held that when the purchase and sale of shares are ITA No.960/Mum/2012 Tekchand Rambhiya, HUF Page 5 of 11 reflected in the assessee's Demat account then the same cannot be treated as arranged transaction. The learned authorized representative of the assessee has pointed out that the AO has placed reliance on the information received from DDI in case of Shri Amrutal H.Chithalia whereas this Tribunal has already decided the issue in the case of Shri Amrutal H.Chithalia in favour of the assessee by holding that the transactions are not bogus. He has filed a copy of the order dated 21/1/2011 in ITA No.2444/Mum/2009 for the assessment year 2005-06. Thus the very basis of the decision of the AO has been reversed by the Tribunal. The learned authorized representative of the assessee has then pointed out that the information summoned by the AO from the Calcutta Stock Exchange would not help the case of the revenue because the transaction was not on the stock exchange but the same may be off-marked transaction and therefore in view of the judgment of the Hon'ble jurisdictional High Court in the case of CIT vs. Jamnadevi Agarwal (328 ITR 656) merely because the transactions were off marked transactions, could not be a ground to treat the transaction as sham transaction particularly when the assessee has produced all the relevant documents in support of the purchase and sale of shares. The learned authorised representative of the assessee has then relied upon the judgment of the Hon'ble Rajasthan High Court in the case of CIT vs. Sumitra Devi (229 Taxman 67) and submitted that when the purchase and sale of shares were materialized during ITA No.960/Mum/2012 Tekchand Rambhiya, HUF Page 6 of 11 the course of regular transaction, then genuineness of the transaction cannot be doubted.
6. On the other hand, the learned DR has submitted that the AO conducted a proper inquiry to verify the genuineness of the transaction. The investigation of the AO has revealed the fact that there was no transaction in the scrip of BPL on the Calcutta Stock Exchange as per the report filed by the Exchange. Therefore, the transaction was rightly treated as sham transaction by the AO which has been confirmed by the CIT(A) in a detailed and reasoned order. He has relied upon the orders of the authorities below.
7. We have considered the rival submissions and the relevant material on record. The issue of genuineness of the transaction is a pure question of fact and therefore ought to have been based on the fact placed by the assessee as well as detected by the AO. The AO has doubted the transaction of purchase and sale of shares as arranged transaction and therefore treated the same as dubious and denied the claim of LTCG and taxed the amount of sale consideration as income from undisclosed sources. There is no dispute that 15000 shares of BPL were transferred in the name of the assessee vide certificate dated 22/4/2002 issued by BPL. The said certificate is placed at pages 13 & 14 of the paper book. We further note that all these 15000 shares of BPL have been Dematerialized in the Demat A/c No.130208000004178 with Bank of India, Andheri (W) Branch. Thus, as per the Demat account ITA No.960/Mum/2012 Tekchand Rambhiya, HUF Page 7 of 11 statement, these 15,000 shares have been duly recorded on 23/5/2/2003. It is pertinent to note that when the shares in question are Dematerialized and recorded in Demat account of the assessee on 23/5/2003 then as on 23/5/2003 the fact of holding these shares by the assessee in its Demat account cannot be disputed. Once the shares are Dematerialised and are standing in the Demat account of the assessee since May 2003 till part of these shares to the extent of 12500 shares sold by the assessee in the year 2007 and 2008 the same remained in the Demat account of the assessee. We have gone through the summary statement of the Demat account of the assessee for each of these years from 2003 to 2008 and all these years these shares were shown in the Demat account of the assessee therefore holding of these shares by the assessee at least from the date of Dematerialsed cannot be doubted. Since the shares were sold in the year 2007 and 2008 therefore the holding period of shares by the assessee from the date of dematerialization is more than the required period of one year or three years for the purpose of LTCG. The AO has not disputed that the shares were sold by the assessee from its Demat account therefore there is no question doubting the transaction of sales of these shares by the assessee from its Demat account. The assessee has produced before the AO copies of the cover note, purchase bill, sales note, certificate of transfer in the name of the assessee, Demat account statement from the month of May 2003 till the shares were sold by the assessee in the year 2007 and 2008, bank statement in ITA No.960/Mum/2012 Tekchand Rambhiya, HUF Page 8 of 11 which the assessee received the sale proceeds . Therefore, all the relevant evidence in support of the claim was produced by the assessee before the AO. The AO has given more importance to the report of the DDIT in case of Shri Amrutal H.Chithalia wherein the shares of BPL were held to be non-genuine. The dispute in the case of Shri Amrutal H.Chithalia was carried to this Tribunal and this Tribunal vide order dated 21/1/2011 in ITA No.2444/Mum/2009 has held in paragaraph 5 as under:
5. Having heard both the sides and perused the relevant material on record, it is seen that the party from whom the assessee purchased the shares was brought to the notice of the AO with complete address. No query was made by the AO about the genuineness of the purchase transaction. M/s Bolton Properties Ltd., whose shares were purchased by the assessee, intimated to the AO in response to summons u/s.131 that the shares were transferred in the name of the assessee on 15-05-2003. In that view of the matter, the fact of assessee having purchased the shares stood amply proved. Once it is proved that the assessee made purchase of shares and also sold the same, the genuineness of the transaction cannot be brought under the shadow of doubt. In our considered opinion, the ld. CIT(A) was justified in overturning the assessment order on this issue.
8. Therefore the said basis of the report of the DDIT in the case of Amrutal H.Chithalia is no more reliable report. Further, when the assessee has produced all the relevant evidence including the record of dematerialization of shares, transfer of shares in the name of the assessee, then the holding of shares by the assessee in its Demat account cannot be doubted. Further, the assessee has been showing these shares in the balance sheet right from the beginning which was not doubted by the AO till the shares ITA No.960/Mum/2012 Tekchand Rambhiya, HUF Page 9 of 11 were sold by the assessee. In the case of CIT vs. Shyam R.Pawar (229 Taxman 256), the Hon'ble High Court, while dealing with an identical issue, has observed in paragraph 5 as under:
"5. We have perused the concurrent findings and on which heav y reliance is placed b 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 Rockev 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 lie 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. "
Even otherwise, the report of the Calcutta Stock Exchange does not indicate any thing about the genuineness of the transaction rather the report is only with respect to the fact that on the given date, there was no transaction on stock exchange in the scrip of BPL. Therefore, the said report cannot be considered as a ITA No.960/Mum/2012 Tekchand Rambhiya, HUF Page 10 of 11 conclusive proof for holding the transaction as bogus transaction, if the transaction of purchase of shares is off marked transaction. The Hon'ble High Court, in the case of Jamnadevi (supra) has observed in paragraphs 11 & 12 as under:
"11. We see no merit in the above contentions. The fact that the assessees in the group have purchased and sold shares of similar companies through the same broker cannot be a ground to hold that the transactions are sham and bogus, especially when documentary evidence was produced to establish the genuineness of the claim.
12. From the documents produced before us, which were also in the possession of the Assessing Officer, it is seen that the share s in question were in fact purchased by the assessees on the respective dates and the company has confirmed to have handed over the shares purchased by the assessees. Similarly, the sale of the shares to the respective buyers is also established by producing documentary evidence. It is true that some of the transa ctions 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 is seen from the documents furnished by the assessees. Therefore, the fact that some of the transactions were off-market transactions cannot be a ground to treat the transactions as sham transactions."
Thus the fact that some of the transactions were off marked transaction cannot be a ground to treat the transaction as a sham transaction. In view of the above facts and discussion, as well as the decisions of the Hon'ble jurisdictional High Court, we are of the considered opinion that the assessee has discharged its onus of proving the fact that shares were purchased by the assessee in the year 2002 which were dematerialized in the Demat account of the assessee on 23/5/2003 and therefore these shares were held ITA No.960/Mum/2012 Tekchand Rambhiya, HUF Page 11 of 11 by the assessee up till the same were sold from the Demat account of the assessee. The transaction of holding shares are reflected in the Demat account and the sale of shares are also through Demat account and consequently the transaction cannot be doubted as sham or bogus transaction. Hence, we delete the addition made by the AO on this account. The orders of the authorities below qua this issue are set aside.
9. In the result, the appeal of the assessee is allowed.
Pronounced in the open court on 16th September, 2015.
sd/- sd/-
(N.K.Billaiya) (Vijay Pal Rao)
ACCOUNANT MEMBER JUDICIAL MEMBER
eksrinivasulu, sr.ps
Copy to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR, ITAT, Mumbai.
6. Guard file
By order
Assistant Registrar
Income-tax Appellate Tribunal
Mumbai