2018 (6) TMI 1114 - AT - Income Tax

Addition u/s 56(2)(viib) - allotment / transfer of shares - adequate consideration / Fair Market Value (FMV) - additional evidence not admitted - Held that - There is nothing in the assessment order passed by the Assessing Officer to show that any opportunity was given by him to the assessee to exercise its option given as per Explanation (a)(ii) to section 56(2)(viib). The assessee,exercised the said option and filed the valuation of its shares based on the fair market value of its assets duly supported the valuation report prepared by the Registered Valuer. CIT(Appeals), however, did not admit the said additional evidence on the ground that it had no relevance to the issue involved in the appeal of the assessee. The assessee by relying on Explanation (a)(ii) to section 56(2)(viib), the said additional evidence was very much relevant to decide the issue relating to the addition made under section 56(2)(viib) involved in the case of the assessee and the ld. CIT(Appeals), in my opinion, was not justified in declining to admit the same. Set aside the impugned order of the CIT(Appeals) on this issue and restore the matter to the file of the Assessing Officer with a direction to decide the issue relating to the addition under section 56(2)(viib) afresh on merit after considering the valuation report filed by the assessee to substantiate its claim of higher fair market value of its shares on the date of issue of shares as per Explanation (a)(ii) - Appeal of the assessee is treated as allowed for statistical purpose

Summary

Issues:
1. Addition of &8377; 15,73,632/- under section 56(2)(viib) of the Income Tax Act, 1961.
2. Opportunity to substantiate higher fair market value of shares.
3. Admission of additional evidence by the ld. CIT(Appeals).

Issue 1: Addition under section 56(2)(viib):
The appeal was against the order confirming the addition of &8377; 15,73,632/- made by the Assessing Officer under section 56(2)(viib) of the Income Tax Act, 1961. The assessee, a Company, received a sum of &8377; 80 lakhs on account of allotment of equity shares at a premium. The Assessing Officer added &8377; 15,73,632/- to the total income of the assessee as the fair market value of the shares was lower than the price at which they were issued. The ld. CIT(Appeals) confirmed this addition, leading to the appeal before the Tribunal.

Issue 2: Opportunity to substantiate higher fair market value of shares:
The assessee contended that the Assessing Officer did not provide a proper opportunity during the assessment proceedings to compute the valuation of shares based on the fair market value of its assets on the date of issue. The assessee claimed the fair market value of shares was higher than the price at which they were issued, supported by a valuation report. The ld. CIT(Appeals) rejected this claim, stating the shares were sold at a premium, justifying the addition under section 56(2)(viib). However, the Tribunal found that the Assessing Officer did not give the assessee a chance to exercise the option to substantiate the higher fair market value of shares. The Tribunal directed the Assessing Officer to reevaluate the issue considering the valuation report filed by the assessee.

Issue 3: Admission of additional evidence by the ld. CIT(Appeals):
The ld. CIT(Appeals) did not admit the additional evidence filed by the assessee to justify the higher valuation of shares, stating it was not relevant to the issue. The Tribunal disagreed, emphasizing the relevance of the additional evidence under Explanation (a)(ii) to section 56(2)(viib). The Tribunal held that the additional evidence was crucial in deciding the issue and criticized the ld. CIT(Appeals) for not admitting it. Consequently, the Tribunal set aside the order and instructed the Assessing Officer to reconsider the matter based on the valuation report submitted by the assessee.

In conclusion, the Tribunal allowed the appeal for statistical purposes, highlighting the importance of providing the assessee with an opportunity to substantiate the fair market value of shares and the relevance of admitting additional evidence in such cases.