S. 10(38) Bogus Capital Gains from Penny Stocks: The documents demonstrates that the assessee had purchased shares through Brokers for which the payment was made through banking channels. The assessee had sold shares through an authorized stock broker and payment was received through baking channels after deduction of STT. The AO has not doubted any of the documents. The only objection raised is that the script from which the assessee had earned Long Term Capital Gain has been held by the Investigation Wing of the Revenue to be a paper entity and that this scrip was being used for creating artificial capital gain. The objection is not acceptable (Udit Kalra (Delhi High Court) distinguished)

This is a group of four appeals filed by different assessees against
separate orders of learned CIT(A) all dated 26/06/2019. In all these
appeals similar grounds have been taken and therefore, these were heard
together and for the sake of convenience, a common and consolidated
order is being passed.
2. At the outset, Learned counsel for the assessee submitted that in
these appeals there is a delay of four days in filing the appeals and which
had occurred as the assessee counted the prescribed period from the date
of physical delivery of order instead of counting it from the day when it
was delivered electronically. Learned counsel for the assessee submitted
Appellant by Shri Rakesh Garg, Advocate
Respondent by Shri S. K. Madhuk, CIT (D.R.)
Date of hearing 11/11/2020
Date of pronouncement 16/12/2020
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
3
that if the date of service is considered as having received through e-mail
then there is delay of four days and if the physical receipt of order of
learned CIT(A) is to be considered then there is no delay. Therefore, it was
submitted that little delay if any had occurred due to confusion and it was
prayed that the delay in filing the appeal be condoned. Learned D. R. did
not have objection for condoning the delay in filing the appeals. Finding
the reason for delay in filing the appeals reasonable, the delay was
condoned and the Learned counsel for the assessee was asked to proceed
with his arguments.
3. Learned counsel for the assessee submitted that he will be arguing
the appeal in I.T.A. No. 501/Lkw/2019 in the case of Shri Achal Gupta and
arguments in respect of all other appeals will be same as the same issue is
there in all other appeals. Learned counsel for the assessee submitted
that the assessee had purchased shares of CCL International Ltd. and had
made the payment for purchase of such shares through cheques and these
were purchased from Suktara Trade Links Pvt. Ltd. Learned counsel for
the assessee submitted that the shares were held in demat account and
after holding for a period of about 1½ years, the same were sold through
registered broker M/s Edelweiss Broking Limited through screen based
trading and the proceeds were credited to the bank account of the
assessee. It was submitted that the Assessing Officer, on the basis of
some report of Investigation Wing, Kolkata, which did not relate to the
assessee, held that the shares of CCL International Ltd. was a penny stock
and assessee had managed Long Term Capital Gain through managed
transactions and therefore, he held the capital gain to be bogus and made
the addition u/s 68 of the Act. Learned counsel for the assessee submitted
that Hon’ble Delhi Tribunal in the case of Reeshu Goel vs. Income Tax
Officer in I.T.A. No.1691/Del/2019, vide order dated 07/10/2019, has
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
4
examined the same share of CCL International Ltd. and after recording
detailed findings has held the same to be a genuine company and has
further held that the company was not a mere paper entity. In this
respect, Learned counsel for the assessee invited our attention to para 16
of the order wherein the detailed findings have been recorded. Learned
counsel for the assessee further submitted that while recording the
findings the Hon’ble Tribunal has considered various other cases decided
by various other Benches wherein the same script has been held to be
genuine. Therefore, it was prayed that the appeals of the assessee may
be allowed by following the above Tribunal order. It was submitted that
other than the objection of the company being a penny stock, there was
no other objection by the authorities below and therefore, the appeals of
the assessees may be allowed. As regards the facts of the present appeal,
Learned counsel for the assessee invited our attention to pages 1 to 46
where all the details relating to purchase, sale and fact of having made
payments and receiving payment through bank account were placed.
Learned counsel for the assessee further submitted that the broker of the
assessee was not investigated and neither the broker examined by the
Investigation Wing made available to the assessee for cross examination
and therefore, also the addition sustained by learned CIT(A) is not
sustainable.
4. Learned D. R., on the other hand, vehemently argued that there
was a racket of bogus capital gain which was unearthed by the
Investigation Wing of the Revenue and after recording statement of
various brokers, some scripts including the script traded by the assessee
was held to be a penny stock and paper entity and therefore, the
Assessing Officer has rightly disallowed the claim of the assessee. It was
submitted Hon’ble Delhi High Court in the case of Udit Kalra vs. Income
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
5
Tax Officer, I.T.A. No.220/2019, vide order dated 08/03/2019 has
dismissed the appeal of the assessee under similar facts and
circumstances. Learned D. R. further submitted that facts regarding this
script being a penny stock and paper entity was already there in the
possession of the Revenue and therefore, the authorities below have
rightly made and sustained the addition. Learned DR further stated that
before learned. CIT(A) no body appeared and therefore the case may be
set aside to him and assessee can make his submissions regarding non
confrontation of statements of brokers.

5. Learned counsel for the assessee, in his rejoinder, submitted that
Hon’ble Tribunal in the case of Reeshu Goel has considered the case law of
Udit Kalra and moreover it was submitted that the decision of Hon’ble High
Court do not have precedential value as the Hon’ble High Court has
dismissed the appeal of the assessee by holding that no substantial
question of law arises. It was further submitted that I.T.A.T. Delhi in the
case of Smt. Karuna Garg in I.T.A No. 1069 and in the case of Swati
Luthra has distinguished the judgment in the case of Udit Kalra. As regards
the non appearance of assessee before learned. CIT(A), the Learned A. R.
submitted that assessee had nothing to say before learned. CIT(A) as all
details have already been filed with Assessing Officer. It was submitted
that learned CIT(A) has passed the order on merits and now after the
passing of order by Delhi Tribunal in the case of Reeshu Goel, the case of
assessee has become fully covered in his favour and therefore it was
prayed that on merits the case of the assessee may be allowed.
6. We have heard the rival parties and have gone through the material
placed on record. We find that Ground Nos. 1 to 4 were not passed by
Learned A. R. as he requested to pass the order on merits and therefore,
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
6
same are dismissed as not pressed. Ground Nos. 5 to 8 relates to the
addition under dispute regarding denial of exemption of long term capital
gain. Ground No. 9 and 10 are regarding addition u/s 69 of the Act which
the Assessing Officer had made on the basis that assessee must have paid
some commission for arrangement of bogus capital gain. The facts in brief
are that assessee sold shares of CCL International Ltd. and earned long
term capital gain. In support of long term capital gain the assessee filed
before Assessing Officer the following documents (which is part of the
paper book):
S.No. Nature of documents Paper Book Page
No
1. Copy of Bank Account of
Federal Bank. 15-16
2. Copy of Bill Suktara Trade
Link Filed 17
3. Copy of Contract note issued by
Broker Edlwise Financial Adnsons Ltd. 18-24
4. Copy of Bank Account of Achal Gupta 25-31
5. Copy of Transaction statement issued
From National Securities Depositary Ltd. 32-46
6.1 The above documents clearly demonstrates that assessee had
purchased shares through Brokers for which the payment was made
through banking channels. The assessee had sold shares through
authorized stock broker and payment was received through baking
channels after deduction of STT. On Page 16 which is a copy of Bank
account of assessee there is evidence of payments to Suktara Trade link
amounting to Rs.8,25,000/- for purchase of 25000 equity shares of CCL
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
7
Ltd. The bill of broker of Suktara Trade Link is at Page 17. The evidence of
sale of such shares through Edelwise financial Advisors Ltd showing
deduction of service tax and securities transaction tax is placed at P.B. 18
to 23. Paper book pages 32 shows that shares of CCL International Ltd.
were in the demat account of assessee and the fact of these shares having
been transferred to the account of brokers M/s Edelwise Financial Advisors
on account of sale is also apparent from this paper. The transaction
statement placed in paper book also proves that assessee was holding a
number of scrips. All the documents clearly demonstrate that assessee did
earn long term capital gain and moreover the Assessing Officer has not
doubted any of the above documents. The only objection raised by the
authorities below is that the script from which the assessee had earned
Long Term Capital Gain has been held by the Investigation Wing of the
Revenue to be a paper entity and which has further held that this scrip
was being used for creating artificial capital gain. We find that Hon’ble
Tribunal in the case of Reeshu Goel has examined this aspect and after
recording detailed findings has held this script to be a genuine script and
has held that the scrip is not a paper entity. The detailed findings of the
Tribunal, as contained from para 16 are reproduced below:
“16. We have heard the rival submissions and also perused
the relevant finding given in the impugned orders as well as
material referred to before us. As stated above, the assessee
has applied for 50,000 shares of M/s. AAR Infrastructure Ltd.
for face value of Rs.10 and paid consideration of Rs.5 lacs
vide cheque no.169799 dated 13.01.2011. The said purchase
has been recorded in the accounts of the earlier year and is
also reflected from the copy of bank statement place at paper
book at pages 25. The purchases made in the earlier years
have been accepted as only net LTCG has been taxed by the
Assessing Officer. The assessee was allotted shares of M/s.
AAR Infrastructure Ltd. and immediately thereafter, the
assessee had dematerialised the shares on 26.02.2011 which
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
8
is evident from the copy of Demat account enclosed at pages
27 to 28 of the paper book. Later, M/s. AAR Infrastructure got
amalgamated with M/s. CCL International Ltd. and according
to amalgamation scheme, the assessee received 1,25,000
shares of M/s. CCL International Ltd. in the proportion of 250
equity shares Rs.2 per share and Rs.100 equity share of Rs.10
per share. The shares which were allotted on 17.02.2011 have
been sold after period of more than 18 to 20 months, i.e., on
29.08.2012 to 10.10.2012. The said shares have been sold
through stock broker M/s. Indianivesh Securities Pvt. Ltd.
17. Before us the ld. counsel has in his brief note has stated
that following documents and statements were filed before
the authorities below:
(a) All the transactions were supported by proper Contracts
Notes and delivery of shares was made through De-mat
Account with stock broker, M/s Indianivesh Securities Pvt. Ltd.
(who is the member of BSE and registered with SEBI). The
shares were sold in the open market. The appellant has
fulfilled all the condition u/s 10(38) of the Income Tax Act,
1961. The appellant has already filed National Security
Depository Limited generated Demat Account and the broker
statement relating to the sale of share in our paper book, also
relevant demat statement highlighting the shares purchased
has already been submitted before the Ld. AO.
(b) The appellant has earned long term capital gain through
genuine purchase and sale of shares of the listed companies
in normal course. There was no default on the part of the
appellant. Moreover, the appellant has earned the income
strictly following the norms and guidelines of SEBI. If M/s CCL
International has been identified as BSE Listed penny stock,
the appellant is not even remotely connected with these
companies. She was not at all in a position to influence the
purchase and sale prices of their shares. Hardship cannot be
brought on the appellant, if default is made by company
which is listed in the BSE.
c) In support of the genuineness of the transaction the
appellant produced the following at the time of assessment
proceeding:
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
9
a) Copy of allotment letter issued by M/s AAR
Infrastructures Limited. (Page 25)
b) Copy of bank statement reflecting the payment made
for the purchase of 50000 equity shares. (Page 26)
c) Copy of Demat Account of the appellant. (Page 27)
d) Copy of statement of broker reflecting the credit of
50000 equity share through preferential allotment.
(Page 28)
e) Copy of order of Delhi High Court, dated 08.10.2011
in the matter of amalgamation of M/s AAR
Infrastructure Limited into M/s CCL International
Limited. (Page 29-44) f) Copy of Contacts notes
reflecting the sale proceeds. (Page 45-50)
g) Copy of Transaction statement reflecting the increase
in the number of shares. (Page 51)
h) Copy of Bank Statement of the appellant reflecting
the amount received on sale of shares. (Page 54).
18. The entire premise of the Assessing Officer for treating
the entire transaction to be a bogus Long Term Capital Gain
and making addition u/s. 68 is that, firstly, M/s. CCL
International Ltd. did not have much financial worth to justify
such a price rise; secondly, the SEBI had suspended the trade
of the share for a brief period; thirdly, he has pointed out the
history of price rise between 06.02.2010 to 25.11.2014 and
then has drawn adverse inference that price of these shares
were manipulated and rigged in the stock exchange which
was solely to provide accommodation entries to the various
parties; and lastly, he has also referred to certain inquiry
report of Investigation Wing Kolkata during the course of
which certain brokers have admitted that they had provided
accommodation entries in the scrip of M/s. CCL International.
But nowhere in the entire assessment order, there is any
reference to any material or evidence that assessee or
assessee’s broker have been found to be indulged in any kind
of accommodation entry in this scrip. No inquiry whatsoever
has been made from the broker of the assessee. Further,
during the period in which assessee had purchased the shares
and had sold them whether the SEBI had suspended the
trading has not been mentioned, in fact, Assessing Officer
himself mentions that there was brief suspension in the year
2010, whereas the assessee has purchased shares in the year
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
10
2011 and sold them in the year 2012. Coming to the
financials, as culled out from the records, the revenue from
the operation of M/s. CCL International Ltd. from March, 2010
to March, 2012 was between Rs. 55.25 crore to Rs. 79 crore.
Thus, it cannot be held that it was mere a paper entity. From
a bare perusal of the history of listing and trading of shares
and the quote of Bombay Stock Exchange as quoted in the
assessment order, it clearly reflects that as on 06.02.2010, the
closing price was Rs. 50 and there was a steady increase and
within the period of 4 years the price had reached up to
Rs.609 on 25.11.2014. Nowhere, it has been pointed out that
the rise was beyond the cap laid down by the SEBI, because
the price of the scrip cannot rise beyond the cap prescribed by
the SEBI. If the shares have been purchased and sold from
the stock exchange on a quoted price with proper contract
number, trade time and after paying STT, then it is very
difficult to assume that the sale proceeds received from sale
of such shares is bogus, especially when purchase of shares
are not in dispute. This inter alia means assessee was in
possession of shares which were also dematerialised. To
prove that such a transaction was in the nature of bogus or
colourable transaction, there has to be some inquiry or
material to nail the assessee that she was some kind of a
beneficiary in some accommodation entry operation. No
defect has been pointed out in the documents submitted by
the assessee nor has the broker of the assessee been inquired
upon. Simply relying upon the general modus operandi and
statement of some brokers recorded by the Kolkata
Investigation Wing does not mean that all the transactions
undertaken of the scrip M/s. CCL International Ltd. through
the country by millions of subscribers are bogus. Thus, in
absence of any material or evidence against the assessee, we
do not find any reason as to why the claim of Long Term
Capital Gain from sale of such share should be denied.
Consequently, the addition on account of commission is also
deleted. Accordingly, we delete the addition made by the
Assessing Officer.”
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020

11
6.2 The above findings of the Tribunal clearly demonstrate that the
Tribunal has held the script of CCL International Ltd. to be a genuine script
and has therefore, allowed the appeal of the assessee.
6.3 As regards the reliance placed by Learned D. R. on the order of Udit
Kalra (supra), we find that the above case law has been held to be
distinguishable by Hon’ble Delhi Tribunal in the case of Karuna Garg in
I.T.A. No.1069/Lkw/2019 and further in the case of Swati Luthra vs.
Income Tax Officer in I.T.A. No.6480/Lkw/2019, dated 28/06/2019. In
these two cases the Hon’ble Tribunal has again allowed relief to the
assessee though from a different script but in the decisions they have held
that the judgment of Hon’ble Delhi High Court in Udit Kalra was
distinguishable as in that case the Hon’ble High Court has only dismissed
the appeal as the Hon’ble High Court found that the issue involved was
only a question of fact. In this respect, para 28 of the Tribunal order in
the case of Karuna Garg is relevant which is reproduced below:
“28. The DR heavily relied upon the judgment of Hon’ble
High Court of Delhi in the case of Udit Kalra Vs. ITO in ITA
No.220/2019. We have carefully perused the order of the
Hon’ble High Court and on going through the said judgment
we find that no question of law was formulated by the Hon’ble
High Court of Delhi in the said case and there is only dismissal
of appeal in limine as the Hon’ble High Court found that the
issue involved is a question of fact.”
6.4 Similarly in the case of Swati Luthra (supra), the Hon’ble Tribunal
while dealing with the case law of Udit Kalra vide para 14 has held as
under:
“14. That the ld DR during the course of hearing placed
heavy reliance on judgment of Hon’ble High Court of Delhi in
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
12
the case of Udit Kalra vs ITO in ITA No. 220/2019. Relevant
extracts of said judgment are extracted as below:
“The assessee is aggrieved by the concurrent findings
of the tax authorities – including the lower appellate
authorities rejecting its claim for a long term capital
gain reported by it, to the tune of Rs.13,33,956/- and
Rs.14,34,501/- in respect of 4,000 shares of M/s Kappac
Pharma Ltd. The assessee held those shares for
approximately 19 months; the acquisition price was
Rs.12/- per share whereas the market price of the
shares at the time of their sale, was Rs.720/-. It is
contended that the assessee was not granted fair
opportunity.
Mr. Rajesh Mahna, learned counsel appearing for the
assessee relied upon the orders of the co-ordinate
Bench of the tribunal, in respect of the same company
i.e. M/s Kappac Pharma Ltd., and pointed out that the
tax authority’s approach in this case was entirely
erroneous and inconsistent.
The main thrust of the assessee’s argument is that he
was denied the right to cross-examination of the two
individuals whose statements led to the inquiry and
ultimate disallowance of the long term capital gain claim
in the returns which are the subject matter of the
present appeal.
This court has considered the submissions of the
parties. Aside from the fact that the findings in this case
are entirely concurrent – A.O., CIT(A) and the ITAT
have all consistently rendered adverse findings – what is
intriguing is that the company (M/s Kappac Pharma
Ltd.) had meagre resources and in fact reported
consistent losses. In these circumstances, the
astronomical growth of the value of company’s shares
naturally excited the suspicions of the Revenue. The
company was even directed to be delisted from the
stock exchange. Having regard to these circumstances
and principally on the ground that the findings are
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
13
entirely of fact, this court is of the opinion that no
substantial question of law arises in the present appeal.
This appeal is accordingly dismissed.”
15. On going through the aforesaid judgment, we find that no
question of law was formulated by Hon’ble High Court of Delhi
in the said case and there is only dismissal of appeal in limine
and the Hon’ble High Court found that the issue involved is a
question of fact as held by Hon’ble Apex Court in
Kunhayyammed vs State of Kerala reported in 245 ITR 360
and also in CIT vs. Rashtradoot (HUF) reported in 412 ITR 17.
Even on merits and facts, the said judgment in the case of
Udit Kalra vs ITO (supra) is distinguishable as in that case the
scrips of the company were delisted on stock exchange,
whereas, in the instant case, the interim order of SEBI in the
cases of M/s Esteem Bio and M/s Turbotech have been cooled
down by subsequent order of SEBI placed by assessees in its
paper book. Thus, the case of Udit Kalra vs ITO relied by ld.
DR is clearly distinguishable on facts and is not applicable to
the facts of assessee. Thus, we hold that the case of assessee
is factually and materially distinguishable from the facts of the
case of Udit Kalra vs ITO so relied by ld DR.”
Therefore, the case law relied upon by Learned D. R. is not applicable to
the facts and circumstances of the present case as that case was decided
by Hon’ble High Court on the basis of facts and circumstances of that case.
Therefore, the present case is fully covered by the decision of Hon’ble
Delhi Tribunal in Reeshu Goel (supra) wherein the same script from which
the assessee had obtained Long Term Capital Gain has been held to be
genuine. Therefore, following the same, we hold that the scrip of CCL
International Ltd. is genuine and not a penny stock and paper entity.
7. In view of the above judicial precedents and keeping in view the
facts and circumstances of the case, Ground No. 5 to 8, the appeal of the
assessee in I.T.A. No. 501 is allowed. Ground Nos. 9 and 10, are also
allowed in view of our findings that the transaction was not bogus.
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
14
8. In nutshell, the appeal of the assessee in ITA No. 501 is partly
allowed.
9. Now coming to appeals in ITA Nos. 502, 504 and 505. The facts and
circumstances in all these appeals are similar and there is also the same
scrip of CCL International Ltd. and in these cases also the only objections
of the Assessing Officer is that the scrip was a penny stock. In these cases
also the assessee had filed complete details before the Assessing Officer
which is apparent from the paper books. For the sake of completeness, we
reproduce the relevant documents in these appeals filed before Assessing
Officer:
ITA No.502
S.No. Particulars P.B. Page
1. Copy of Bank statement of 4 to 5
Federal Bank from where
the payment of Rs.8,25,000/-
shares was made.
2. Copy of bill of Suktara Trade 6
Link (P) Ltd. from whom shares
were purchased.
3. Copy of transaction statement 7 to 14
issued from NSDL.
4. Copy of contract notes issued by 15 to 21
Edelwise Financial Advisors
5. Copy of Transaction statement 30 to 47
from NSDL
ITA No. 504
1. Copy of Account with State 31 & 32
Bank of India from where
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
15
Payment of Rs.82,500/- for
Purchase of 25000 equity
Shares was made.
2. Copy of Bill of Suktara Trade 15
Link (P) Ltd. for purchase of
Shares.
3. Copy of transaction statement 33 to 45
issued from NSDL
4. Copy of contract note issued 16 to 21
By Edelwise Financial Advisors
Ltd.
ITA No. 505
1. Copy of account with IDBI 17 to 18
Bank from where payment of
Rs.825000/- for purchase of
25000 equity shares was made
2. Copy of Bills of Suktara Trade 11
Link (P) Ltd. for purchase of
Shares.
3. Copy of Transaction statement 29 to 44
issued from NSDL
4. Copy of contract note issued by 19 to 23
Edelwise Financial Advisors Ltd.
10. Since under similar facts and circumstances, we have partly allowed
appeal in ITA No. 501, therefore, following the above the appeal in ITA
No. 502, are also partly allowed wherein grounds no. 1 to 4 are dismissed
as not pressed and Ground No. 5 to 9 are allowed.
11. In ITA No. 504 and 505, Ground Nos. 1 to 4 are dismissed as not
pressed whereas Ground Nos. 5 to 10 are allowed.
I.T.A. No.501,502,504 & 505/Lkw/2019
S.A.No.25 to 28/Lkw/2020
16
12. Since we have allowed all the appeals of the assessee, on merits the
Stay Applications filed by all the assessees have become infructuous and
need no adjudication.
13. In the result, all the appeals are partly allowed and all the Stay
Applications are dismissed as infructuous.
(Order pronounced in the open court on 16/12/2020 in
accordance with Rule 34(4) of the I.T.A.T. Rules)