Capital Gain from penny stocks not bogus - ITAT
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Recently, investors who have tried to claim the benefit of longterm capital gains from penny stocks, have come under the radar of tax officials.
"If payment is by cheque and delivery of shares is taken, then long-term capital gains tax cannot be treated as bogus," the tribunal said. The tribunal's ruling was on a case where the assessee had shown sale proceeds of shares in the scrip Ramkrishna Fincap as a long-term capital gain and claimed exemption. Further, the assessee had claimed to have purchased this scrip at Rs 3.12 per share in 2003 and sold it for Rs 155.04 per share in 2005. Tax officials found the scrip to be a penny stock and held the capital gains only as 'accommodation entries.'
"It is often noticed that tax officials generalise their view towards different matters but the tribunal order in this matter reiterates that investigation into penny stocks cannot necessarily mean that all transactions are bogus. The nature of the transaction does not change just because there is an investigation or because it is a penny stock," said Ram Upadhyay, senior advocate, who fought cases for the Mumbai income-tax department.
Broker Basamt Periwal and Co, through whom the transactions were carried out, was being probed by the Directorate of Revenue Intelligence for price manipulation through synchronised and cross deals in the scrip of Ramkrishna Fincap. Also, the Sebi had passed an order in 2009 regarding the irregularities and synch-ronised trades carried out in the scrip by Basant Periwal. Considering this, the assessing officer did not accept the assessee's claim of long-term capital gain and added the same to the assessee's income.
The tribunal, however, observed that the assessee made investment in shares which was purchased on the floor of a stock exchange and not from Basant Periwal and Co. Since payment was made by account payee cheque, delivery of shares was taken and contract of sale was complete as per the contract act, the assessee is not concerned with the broker. Nowhere has the assessing officer alleged that the transaction by the assessee with this broker or share was bogus. "Just because the investigation was done by Sebi against the broker, the assessee cannot be said to have entered into an ingenuine transaction, insofar as the assessee is not concerned with the activity of the broker and has no control over the same," the tribunal noted. #casansaar (Economic Times)
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