2020 (7) TMI 250 - AT - Income Tax

Addition u/s 56(2) (viib) - shares issued to NRI mainly to encourage Foreign Investments - Whether the said person was resident in India or not - Whether valuation of shares is done fully in compliance to Rule 11U and there is no excess money is calculated? - HELD THAT - If the person in question was not in India in the relevant previous year for 60 days or mor then such a person cannot be said to be a resident in India in that year. As per the copy of passport No. F5207571 submitted before us by learned AR of the assessee along with written submissions, it is seen that the name in the passport is Vijaya but as per the Assessment Order, the amount was received from Smt. Vijayalakshmi. This is also seen that passport copy was not submitted before the AO or CIT(A) and it is submitted before the Tribunal for the first time as an additional evidence. Hence, we feel it proper to restore this matter back to the file of AO for a fresh decision because there is no finding of AO or CIT(A) on this aspect as to whether the said person from whom the amount in question was received by the assessee company was a resident in India or not in the present year. The AO is directed to examine this issue as per law and give a categorical finding as to whether the said person Smt. Vijayalakshmi from whom the amount in question was received by the assessee company was resident in India or not in the present year and thereafter, decide this aspect first as to whether the provisions of section 56(2)(viib) are applicable or not in respect of this amount in question received from Smt. Vijayalakshmi. If it is found that the provisions of section 56(2)(viib) are not applicable because the said person is not a resident in India in the present year then nothing more remains to be decided because in that situation, the provisions of section 56(2)(viib) cannot be made applicable in respect of this amount in question but if it is found that the said person i.e., Smt. Vijayalakshmi is a resident in India in the present year, then the whole issue should be examined and decided by the AO afresh. Assessee s appeal stands allowed for statistical purposes

Summary

Issues:
1. Applicability of section 56(2)(viib) of the Income Tax Act, 1961 to shares issued to a non-resident.
2. Requirement of evidence to establish residential status for tax implications.
3. Evaluation of the valuation report and compliance with the DCF Method.
4. Consideration of judicial pronouncements on valuation methods.

Issue 1: Applicability of section 56(2)(viib) to shares issued to a non-resident
The appeal questioned the addition made under section 56(2)(viib) of the Income Tax Act, contending that the provisions are not applicable to shares issued to a non-resident. The appellant argued that the section applies only to shares issued to residents, emphasizing the non-resident status of the individual in question. The Tribunal highlighted the necessity to determine the residential status of the person from whom the company received consideration for shares. The Tribunal directed the Assessing Officer (AO) to re-examine the issue and ascertain whether the individual was a resident in India in the relevant year, emphasizing the importance of this determination for the applicability of section 56(2)(viib).

Issue 2: Requirement of evidence to establish residential status
The Tribunal noted the submission of relevant details and evidence regarding the individual's stay in India, supported by a passport copy and a certificate from the company confirming the individual's limited stay in India during the relevant year. The Tribunal emphasized the need for concrete evidence to establish the residential status for tax implications, directing the AO to consider these submissions and make a definitive finding on the individual's residency status in India.

Issue 3: Evaluation of the valuation report and compliance with the DCF Method
The AO's objection to the valuation report under section 56(2)(viib) was based on the incorrectness of the report, but lacked a discussion on whether the amount received was from a resident. The Tribunal highlighted the importance of adhering to the provisions of the Income Tax Act and the need for a thorough examination of the valuation report in compliance with the Discounted Cash Flow (DCF) Method. The matter was remanded to the AO for a fresh decision considering the correct application of section 56(2)(viib) and the valuation methodology employed by the assessee.

Issue 4: Consideration of judicial pronouncements on valuation methods
The Tribunal referenced various judicial pronouncements, including cases like Innoviti Payment Solutions Pvt. Ltd. and Vodafone M-Pesa Ltd., emphasizing that the AO cannot alter the valuation method chosen by the assessee, particularly the DCF Method. The Tribunal directed the AO to reconsider the applicability of section 56(2)(viib) in light of these judicial precedents if the individual in question was determined to be a resident in India. The appeal was allowed for statistical purposes, with the matter remanded to the AO for a fresh decision based on the findings related to the individual's residential status and compliance with valuation methods.

This comprehensive analysis of the judgment delves into the intricacies of the issues raised in the appeal, focusing on the applicability of tax provisions, the necessity of evidence, valuation methodologies, and the impact of judicial precedents on the final decision.