2023 (2) TMI 1186 - AT - Income Tax

Addition u/s 56(2) (viib) - fair market value of the shares sold to non resident company on very high premium - AO treating the share premium received does not represent the fair market value of shares AO added back the amount to the income of the assessee - HELD THAT - On a reading of section 56(2)(viib) it becomes very much clear that it is applicable to resident investors and not to non-residents. That being the statutory provision the addition made in respect of investment made by M/s. NBM Investment Fund ALP by invoking the provisions of section 56(2)(viib) is unsustainable. Investment made by M/s. H.T. Digital Media Holding Ltd. - On a reading of section 56(2)(viib) it is observed that any consideration received for issue of shares which exceeds the fair market value of the shares can be added. As per explanation to section 56(2)(viib) fair market value of the shares shall be the value as may be determined applying such method as may be prescribed or may be substantiated by the company to the satisfaction of the Assessing Officer based on the value on the date of issue of shares or its assets including intangible assets whichever is higher. Rule 11UA prescribes the method for determination of fair market value. It is nobody s case that the valuation of shares by the independent valuer is not in accordance with the statutory provisions. In fact the departmental authorities have accepted the position that the DCF method is an accepted method under the statutory provisions. Therefore merely because the actual sales are not matching with the estimated projected figures considered for DCF method the fair market value determined by the independent valuer cannot be rejected. See CINESTAAN ENTERTAINMENT P. LTD. 2019 (6) TMI 1367 - ITAT DELHI - Decided in favour of assessee.

Summary

Issues Involved:
1. Addition under Section 56(2)(viib) of the Income-Tax Act, 1961.
2. Applicability of Section 56(2)(viib) to non-resident investors.
3. Rejection of the valuation report based on the Discounted Cash Flow (DCF) method.

Issue-wise Detailed Analysis:

1. Addition under Section 56(2)(viib) of the Income-Tax Act, 1961:
The primary issue in this case is the addition of Rs.48,63,880 under Section 56(2)(viib) of the Income-Tax Act, 1961. The assessee, a corporate entity engaged in the business of software and mobile applications, filed its return for the assessment year 2016-17 declaring a loss of Rs.33,71,003. During scrutiny, the Assessing Officer (AO) observed that the assessee had received a high share premium from two entities, NBM Investment Fund ALP (a non-resident company) and M/s. HT Digital Media Holdings Ltd. The AO questioned the fair market value of the shares, rejecting the valuation report provided by the assessee and adding back the premium received to the income of the assessee.

2. Applicability of Section 56(2)(viib) to non-resident investors:
The assessee argued that the provisions of Section 56(2)(viib) do not apply to non-resident investors, specifically referring to the investment made by NBM Investment Fund ALP. The Tribunal agreed, stating that Section 56(2)(viib) is applicable to resident investors and not to non-residents. Therefore, the addition made in respect of the investment by NBM Investment Fund ALP was deemed unsustainable.

3. Rejection of the valuation report based on the Discounted Cash Flow (DCF) method:
The assessee provided a valuation report from an independent valuer using the DCF method, which is an accepted method under Rule 11UA. The AO rejected this report, arguing that the future cash flow projections were not commensurate with the actual sales figures. The Tribunal, however, held that merely because the actual sales did not match the projected figures, the valuation report could not be rejected. The Tribunal emphasized that the DCF method is a recognized and accepted method for valuation under the statutory provisions, and the AO could not arbitrarily reject the valuation without substantial grounds.

Judgment:
The Tribunal referred to several precedents, including the case of Cineestan Entertainment Ltd. vs. ITO, where it was held that the AO could not reject the valuation report based on DCF merely because the projections did not match actual figures. It was noted that valuation is not an exact science and should be based on reasonable projections at the time of valuation. The Tribunal concluded that the addition made by the AO was unsustainable and deleted the addition. The appeal was allowed in favor of the assessee.

Conclusion:
The Tribunal ruled that the addition under Section 56(2)(viib) was unsustainable, particularly for the investment made by the non-resident entity. It also upheld the validity of the DCF method for valuation, emphasizing that the AO could not reject the valuation report without substantial reasons. The appeal was allowed, and the addition was deleted.