Income Tax Appellate Tribunal - Kolkata
Smt. Savita Bhura, Kolkata vs Dcit, Circle-36, Kolkata, Kolkata on 19 September, 2018
1
ITA No. 12/Kol/2017
Smt. Savita Bhura, AY 2013-14
आयकर अपील
य अधीकरण, यायपीठ - "A" कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA
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[Before Shri P.M. Jagtap, AM & Shri A. T. Varkey, JM]
I.T.A. No. 12/Kol/2017
Assessment Year: 2013-14
Smt. Savita Bhura Vs. Deputy Commissioner of Income-tax,
(PAN: ADKPC5520G) Circle-36, Kolkata.
Appellant Respondent
Date of Hearing 11.09.2018
Date of Pronouncement 19.09.2018
For the Appellant Shri K. L. Bothra, Advocate
For the Respondent Shri Soumyajit Das Gupta, Addl. CIT, Sr. DR
ORDER
Per Shri A.T.Varkey, JM
This appeal preferred by the assessee is against the order of Ld. CIT(A)-10, Kolkata dated 24.11.2016 for AY 2013-14.
2. At the outset itself, the Ld. Counsel for the assessee brought to our notice that the assessee's claim of long term capital gain of Rs.55,00,069/- on account of sale of 30,000 shares of M/s. Tuni Textile Mills which the assessee had purchased on 18.03.2011 at Rs.7,30,138/- in the off market through registered broker Shree Bahubali International Ltd. and thereafter the shares purchased were deposited in the demat account. Later, on 08.09.2012 those shares were sold at Rs.62,30,2017/-. Thus, assessee received Long Term Capital Gain (LTCG) of Rs.55,00,069/- which the assessee claimed to be exempt u/s. 10(38) of the Act. However, the AO was of the opinion that the LTCG claim of the assessee was bogus and he added the same to the assessee's income. On appeal, the Ld. CIT(A) confirmed the order of AO. Aggrieved, assessee is before us.
3. We have heard rival submissions and gone through the facts and circumstances of the case. At the time of hearing, Ld. AR brought to our notice that in a similar case wherein the 2 ITA No. 12/Kol/2017 Smt. Savita Bhura, AY 2013-14 assessee had purchased shares of M/s. Tuni Textile Mills Ltd. and sold the same in AY 2013-14 the Tribunal has deleted the addition in the case of Kiran Kothary, HUF Vs. ITO in ITA No. 443/Kol/2017, AY 2013-14 by order dated 15.11.2017 wherein the Tribunal in that case has held that sale of shares of M/s. Tuni Textile Mills Ltd. was a genuine transaction. The Ld. DR, on the other hand, could not controvert this fact which was brought to our notice in respect of sale of shares of M/s. Tuni Textiles Mills Ltd. that the Tribunal in similar case for the same assessment year has dealt similar addition made by the AO/Ld. CIT(A) in respect of the claim of the assessee of LTCG on sale of share of M/s. Tuni Textile Mills Ltd. which is reproduced as under:
"9. We have heard the rival submissions and perused the records. We note that in the present case, the appellant had purchased 13500 shares of M/s. Tuni Textile Mills Private Limited on 06.04.2011 from a stock broker in off-market transactions from M/s Badri Prasad & Sons, who was a member of Calcutta Stock Exchange. These shares were held in the demat account of the assessee maintained with M/s CD Equisearch Pvt. Ltd , a member of Mumbai Stock Exchange and ultimately these shares were sold through M/s. CD Equisearch and on such sale, Security Transaction Tax was duly paid. Payments were duly received in the bank account of the assessee. We take note that the purchase of shares by off- market transactions for purchase of shares is not illegal as was held by the Coordinate Bench of this Tribunal in the case of Dolarrai Hemani vs ITO in ITA NO.19/Kol/2014 dated 02.12.2016. The transactions were all through a registered broker (pages 18 and 19 of the paper book), backed by a contract note (page 22 of the paper book) and shares were credited in the demat accounts (page 25 of the paper book) and duly reflected in the books of account. In the light of these evidences on record we are of the opinion that the purchase of shares per-se cannot be held to be bad.
9.1. We note that there was a survey conducted u/s 133A of the Act by the Mumbai Investigation Wing against M/s. Tuni Textile Mills Pvt. Ltd on 02.06.2015 and in the survey a deposition was taken on oath wherein the Managing Director of the said company Shri N.P.Surekha was examined and he stated that 47 persons were allotted preference shares on 25.01.2010 and a sum of Rs.7.50 crores was raised by the company. He further submitted that this entire deal was done by one Shri Manish Baid and then these 47 investors used the shares allotted to them, sold the same at jacked up price and in the process they earned bogus long term capital gain from such transactions which was stage managed by Shri M.Baid. Based on this statement, the lower authorities concluded that the transactions of the assessee were also part of the bogus transactions and the same was accordingly held to be unexplained cash credit u/s 68 of the Act. We do not subscribe to the said view taken by the authorities below for the reasons stated below:-
We note that the assessee was not a part of 47 persons, who the managing director has named in the list of 47 persons and we also note that there is no material to remotely suggest that the assessee dealt with the said entry operator Shri Manish Baid, who is said to have stage managed and undertaken the entire transactions. We also find that the assessee has not dealt with any person or broker named in question no.28 of the statement which has been recorded on oath by the survey team and which has been reproduced by the ld. CIT(A) from pages 31 to 36 of the impugned order(Question no.28 finds place in page-35 of the impugned order). We therefore find merit in the submissions of the assessee that the statement recorded on oath during the survey cannot be the sole basis for adverse finding 3 ITA No. 12/Kol/2017 Smt. Savita Bhura, AY 2013-14 against the assessee. For this we rely on the decision of the Hon'ble Supreme Court in the case of CIT vs Khader Khan Son 352 ITR 480 (SC) wherein it has been held that section 133A (survey) does not empower any income tax authorities to examine any person on oath, hence any such statement lacks evidentiary value and any admission made during the survey cannot by itself be made the basis of addition. We therefore hold that the statement of Shri N.P.Surekha recorded on oath during the survey proceedings cannot be the sole basis to make the impugned addition. We note that the assessee had not purchased the shares by the Preference Share Route as stated by the party before the survey party. The allotment made in preference share was on 25-01-2010, whereas the assessee purchased the shares on 06- 04-2011 through the broker. ( i.e after more than one year and three months) We find that the transactions of capital gains as claimed by the assessee was duly backed by relevant documentary evidences which include the following :-
(i)The balance sheet of the assessee for the financial year 2011-12 wherein the investment made in these shares were duly recorded and reflected (page 16 of the paper book);
ii) The bills of purchase of shares of M/s. Tuni Textile Mills Pvt. Ltd (page 18 of the paper book)
iii)Copy of the demat statement maintained with M/s. CD Equi Search where the shares were held (page 24 of the paper book)
iv) Copy of the contract notes issued by M/s. CD Equi Search Ltd, Member of Mumbai Stock Exchange having SEBI Registration No.INB010781133 and Code No.087 (page 19 to 22 of the paper book
v) The bank statement maintained by the assessee with Bank of Maharshtra reflecting the payment received for the sale of shares (page 23 of the paper book).
9.2. We find force in the contentions of the ld. AR that the AO and CIT(A) was not justified in rejecting the claim of the assessee on the basis of theory of surrounding circumstance, human conduct and preponderance of probability without bringing on record any relevant legally admissible evidence against the assessee. For the said proposition we rely on the judgment of the Special Bench of Mumbai Bench in the case of GTC Industries Ltd. (supra). The various facets of the contention of the AO, to rope in the assessee for drawing adverse inferences which remain unproved based on the evidence available on record are not reiterated for the sake of brevity. The principles laid down in various case laws relied upon by the ld. AR are also not reiterated for the sake of brevity. We further find that neither the reports relied on by the AO has not been brought on record nor is there any reference of finding of such report to impute the assessee is there on record. The AO has merely carved out certain features/modus- operandi of companies indulging in practices not sanctioned by law and as mentioned in such report. However, we note that neither any investigation was carried out against the assessee nor against the brokers to whom the assessee dealt with the purchase and sale of shares in question. Thus the AO has failed to bring on record any material contained in the purported reports which are having so called adverse impact on the assessee. We further find that the company under scanner was having share Capital as on 31.03.2013 of Rs.13.18 crores and was having assets worth Rs.24.25 crores and a turn over of Rs.19.32 crores and profit of Rs.1.35 crores. Thus the allegation that these companies did not have financial credentials is not correct and so is perverse and therefore we do not subscribe to the said finding and necessarily negate the finding.
At the cost of repetition, we find that the transactions of sale of shares by the assessee was duly backed up by material/evidence including contract notes, demat statement, bank account reflecting transactions, the stock brokers have confirmed the transactions (pages 24-25 of the paper book), the shares having been sold on the online platform of the stock exchange and each trade of sale of shares were having unique trade number and trade time. It is not the case of the AO that the shares which were sold on the date mentioned in the contract note were not the traded price on that particular date. The AO doubted the 4 ITA No. 12/Kol/2017 Smt. Savita Bhura, AY 2013-14 transactions due to the high rise in the stock price and for that the assessee cannot be blamed unless there was any material/evidence to prove that the assessee or any one on his behalf has rigged the stock price. It should be noted that the Stock Exchange and SEBI are the statutory authorities appointed by the Govt. of India to ensure that there is no stock rigging or manipulation. The AO has not brought any evidence on record to show that these agencies have alleged any stock manipulation against the assessee or the brokers or the company in question. In absence of any evidence to back the conclusion of AO/CIT(A), it cannot be said that merely because the stock price moved sharply, the assessee was to be blamed for bogus transitions. It is also pertinent to note that the assessee has purchased the stocks through registered brokers and thereafter the assessee has sold the shares through the registered share/stock brokers with Calcutta Stock Exchange, and both have confirmed the transactions and have issued valid contract notes as per law; and in similar case, the Hon'ble Calcutta High Court in the case of Principal CIT vs Rungta Properties in ITA No.105 of 2016 dated 08 May, 2017 wherein it was held that "on the last point, the tribunal held that the AO had not brought relevant material to show that the transactions in shares of the company involved were false or fictitious. It is the finding of the AO that the scripts of this company was executed by a broker and the broker was suspended for some time. It is the assessee's contention that even though there are allegations against the broker, and for that reason the assessee cannot be held liable on this point, the tribunal held that -
"As a matter of fact the AO doubted the integrity of the broker and the broker firm and also AO observed that the assessee had not furnished any explanation in respect of any discussion of trading of shares. The AO relied the loss of Rs.25,30,396/- only on the basis of information submitted by stock as fictitious. The AO has also not doubted the genuineness of the documents placed by the assessee on record. The AO's observation and conclusion are merely based on information. Therefore on such basis, no disallowance can be made and accordingly we find no infirmity in the order of the ld. CiT(A), who has rightly allowed the claim of the assessee. This ground no.1 of the revenue is dismissed."
We agree with the reasoning of the tribunal on this point also. We do not find any reason to interfere with the impugned order. The suggested question, in our opinion do not raise any substantial question of law."
9.3. In the light of the documents stated i.e. (i to v) in Page14(supra) we find that there is absolutely no adverse material to implicate the assessee to the entire gamut of unfounded/unwarranted allegations leveled by the AO against the assessee, which in our considered opinion has no legs to stand and therefore has to fall. We take note that the ld. DR could not controvert the facts which are supported with material evidences furnished by the assessee which are on record and could only rely on the orders of the AO/CIT(A). We note that the allegations that the assesse/brokers got involved in price rigging/manipulation of shares must therefore consequently fail. At the cost of repetition, we note that the assessee had furnished all relevant evidence in the form of bills, contract notes, demat statement and bank account to prove the genuineness of the transactions relevant to the purchase and sale of shares resulting in long term capital gain. Neither these evidences were found by the AO nor by the ld. CIT(A) to be false or fictitious or bogus. The facts of the case and the evidence in support of the evidence clearly support the claim of the assessee that the transactions of the assessee were genuine and the authorities below was not justified in rejecting the claim of the assessee exempted u/s 10(38) of the Act on the basis of suspicion, surmises and conjectures. It is to be kept in mind that suspicion how so ever strong, cannot partake the character of legal evidence. In the aforesaid facts and circumstance, for allowing the appeal we rely on the decision of the Hon'ble Calcutta High Court in the case of M/s. Alipine Investments in ITA No.620 of 2008 dated 26th August, 2008 wherein the High Court held as follows :
5 ITA No. 12/Kol/2017Smt. Savita Bhura, AY 2013-14 "It appears that there was loss and the whole transactions were supported by the contract notes, bills and were carried out through recognized stock broker of the Calcutta Stock Exchange and all the bills were received from the share broker through account payee which are also filed in accordance with the assessment.
It appears from the facts and materials placed before the Tribunal and after examining the same, the tribunal allowed the appeal by the assessee.
In doing so the tribunal held that the transactions cannot be brushed aside on suspicion and surmises. However it was held that the transactions of the shares are genuine. Therefore we do not find that there is any reason to hold that there is no substantial question of law held in this matter. Hence the appeal being ITA No.620 of 2008 is dismissed."
4. Since the facts are similar and only the difference is in respect of date of purchase and sale of scrips and all the facts remain same, scrips are also the same, transaction and the documents before us are also of the similar nature, and the ld DR could not point out any change in facts or law, respectfully following the reasoning, fact and law as per the order of the Tribunal dated 15.11.2017 in Kiran Kothari, HUF, supra, we are inclined to allow the appeal of the assessee and direct deletion of addition on this count. Therefore, the appeal of assessee is allowed.
5. In the result, appeal of assessee is allowed.
Order is pronounced in the open court on 19th September, 2018.
Sd/- (P. M. Jagtap) Sd/- (Aby. T. Varkey)
Accountant Member Judicial Member
Dated : 19th September, 2018
Jd.(Sr.P.S.)
Copy of the order forwarded to:
1. Appellant - Smt. Savita Bhura, 37, Armenian Street, C/o S. N. Fabrics Pvt. Ltd., Kolkata0700 001.
2 Respondent - DCIT, Circle-36, Kolkata
3. CIT(A)-10, Kolkata. (sent through e-mail)
4. CIT - , Kolkata
5. DR, ITAT, Kolkata. (sent through e-mail) /True Copy, By order, Sr. Pvt. Secretary