2022 (3) TMI 170 - AT - Income Tax

Addition applying the provisions of Section 56(2)(viib) - excess share premium charged by assessee - as argued assessee was a Startup - AO did not agree with the valuation of the assessee - HELD THAT - The submissions advanced on behalf of the assessee before the CIT(A) were a reiteration of the arguments as advanced before the AO namely, that the assessee was a Startup and the provisions of Section 56(2)(b) were not applicable. In the facts of the present case, the claim of being a Startup let alone availability of supporting evidence was not made. Assessee relied upon the CBDT Notification dated 09.08.2019 which has clarified the applicability of para 6 of the Gazette Notification which has taken into consideration the hardships faced by the Startup companies involving application of Section 56(2)(b) and has clarified that the said Notification will be applicable to those Startup companies also where addition u/s 56(viib) of the Act has been made in assessment order under the Income Tax Act before 19.02.2019 provided the assessee has specifically submitted declaration in Form No.2 that it fulfilled conditions mentioned in para 4 of the above referred notification. In the facts of the said case, the assessee thereafter, had filed Form No.2 in pursuance of para 5 of Notification dated 19.02.2019 on 23rd August, 2019. In the facts of the present case, we notice that the assessment order is dated 28.03.2016 and hence the assessee possibly may well argue that the said case is applicable, however, we find that in the facts of the said case, the Department had the benefit of the relevant documents whereas in the facts of the present case, the concerned authorities did not have the benefit of the factual claim supported by fresh evidences and hence have not taken into consideration either the legal position nor the factual position as is being now canvassed. Accordingly, we have deemed it appropriate to set aside this issue for fresh consideration on the basis of fresh evidences admitted and legal position thereon - Appeal of the assessee is allowed for statistical purposes.

Summary

Issues Involved:

1. Application of provisions of Section 56(2)(viib) for alleged excess share premium charged.
2. Admission of additional evidence by the assessee.
3. Assessment of the assessee's status as a Startup and its implications on taxability.
4. Evaluation of the valuation reports and their acceptance by the tax authorities.
5. Consideration of the applicability of relevant notifications and legal provisions.

Detailed Analysis:

1. Application of provisions of Section 56(2)(viib) for alleged excess share premium charged:
The primary issue revolves around the addition of ?1,11,51,995/- under Section 56(2)(viib) for excess share premium charged by the assessee. The CIT(A) upheld this addition, which the assessee contested, arguing that the provisions of Section 56(2)(viib) were not attracted in their case. The assessee claimed that the shares were allotted to venture capital funds, which are exempt under the said section.

2. Admission of additional evidence by the assessee:
The assessee sought to admit additional evidence, including a certificate of recognition as a Startup and a Gazette Notification from the Ministry of Commerce and Industry. These documents were obtained after the initial appeal and were argued to be crucial for determining the issue. The Revenue did not oppose the admission of these documents but requested that the matter be remanded for verification.

3. Assessment of the assessee's status as a Startup and its implications on taxability:
The assessee argued that their status as a recognized Startup exempted them from the provisions of Section 56(2)(viib). They provided supporting documents, including a certificate of recognition and a notification from the CBDT, which were not considered by the tax authorities initially. The Tribunal noted that these documents were genuine and relevant, necessitating a fresh consideration by the AO.

4. Evaluation of the valuation reports and their acceptance by the tax authorities:
The AO had rejected the valuation reports provided by the assessee, citing discrepancies and reliability issues. The CIT(A) upheld this rejection, noting that the reports were prepared by different accountants and had conflicting valuations. The assessee's alternative plea to consider a lower premium was also seen as an implicit concession of the applicability of Section 56(2)(viib).

5. Consideration of the applicability of relevant notifications and legal provisions:
The Tribunal referred to similar cases, such as the Chennai Bench's decision in DCIT Vs Kovai Media Pvt. Ltd., where the provisions of Section 56(2)(viib) were not applied to recognized Startups. The Tribunal emphasized the need to verify whether the conditions set out in the relevant notifications were satisfied. The Revenue's objection to the applicability of the notifications was noted, but the Tribunal found it necessary to remand the issue for a comprehensive examination of the new evidence and legal provisions.

Conclusion:
The Tribunal set aside the impugned order and remanded the issue back to the AO for a fresh consideration, directing the AO to pass a speaking order in accordance with the law after giving the assessee a reasonable opportunity of being heard. This decision was influenced by the need to consider the additional evidence and the legal position comprehensively. The appeal was allowed for statistical purposes, and the order was pronounced via Webex.