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2018 (5) TMI 755 - AT - Income TaxAddition u/s 56(2)(viib) on account of issue of shares - sale without adequate consideration - as per revenue no documentary evidences filed to substantiate the claim of fair market value as on date of issue of the shares - Held that - As assessee filed reply before A.O. supported by documentary evidences with certificate of the C.A. and the report of the registered valuer. Therefore, the findings of the authorities below are incorrect that no documentary evidences have been filed to substantiate the claim of fair market value as on date of issue of the shares. The Explanation to Section 56(2)(viib) have not been considered by the authorities below. The matter, therefore, requires reconsideration at the level of the A.O. Accordingly set aside the orders of the authorities below and restore the matter in issue to the file of A.O. with a direction to redecide this issue in the light of reply and material filed by the assessee on record in the light of Explanation to Section 56(2)(viib) of the I.T. Act. A.O. shall give reasonable and sufficient opportunity to the assessee and shall pass detailed order on merit - Decided in favour of assessee for statistical purposes.
Issues:
1. Validity of the order passed by Ld. CIT(A) 2. Addition under section 56(2)(viib) of the Income Tax Act 3. Consideration of fair market value of shares 4. Adequate opportunity provided by Ld. CIT(A) Issue 1: Validity of the order passed by Ld. CIT(A) The appeal challenged the order of the Ld. CIT(A) on the grounds that it was "bad in law and against the facts of the case." The appellant contended that the addition under section 56(2)(viib) of the Income Tax Act was not based on objective satisfaction and should be deleted. The appellant argued that the equity share value at the date of issue was substantiated based on the company's assets, including intangible assets, as per the provisions of the Act. However, the Ld. CIT(A) upheld the addition without considering the higher fair market value provided in the Act's explanation. Issue 2: Addition under section 56(2)(viib) of the Income Tax Act The appellant, a closely held company, issued shares at a premium, which led to an addition under section 56(2)(viib) of the Income Tax Act. The Assessing Officer (A.O.) added a specific amount, which the appellant contested before the Ld. CIT(A). The appellant argued that the fair market value of the shares was higher than the issued price, considering the company's assets and profitability. However, the Ld. CIT(A) did not find any material to support the claim of a fair market value exceeding the issued price, leading to the dismissal of the appeal. Issue 3: Consideration of fair market value of shares The matter required reconsideration at the A.O. level as per section 56(2)(viib) of the Income Tax Act. The explanation to this section specifies that the fair market value of shares should be substantiated based on the value of the company's assets at the date of issue, including intangible assets. The appellant provided documentary evidence, including a valuation report, to support a higher fair market value. The appellate tribunal found that the authorities below had not considered this evidence and directed the A.O. to redecide the issue, giving the appellant a reasonable opportunity. Issue 4: Adequate opportunity provided by Ld. CIT(A) The appellant raised concerns about the Ld. CIT(A) ignoring the higher fair market value and not providing adequate opportunity to present their case. The tribunal noted that the appellant had filed replies supported by documentary evidence, contradicting the authorities' findings. The tribunal set aside the previous orders and instructed the A.O. to reconsider the issue in light of the appellant's submissions and the provisions of the Income Tax Act, ensuring a detailed order with reasons following the law. In conclusion, the appeal was allowed for statistical purposes, emphasizing the importance of considering fair market value and providing a fair opportunity for the appellant to substantiate their claims in accordance with the Income Tax Act.
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