2023 (1) TMI 570 - AT - Income Tax

Ex-parte order passed by NFAC - Violation of Principles of Natural Justice - Addition u/s 56 (2)(viib) AND Disallowance under section 40A(2)(b) - portion the shares are issued to a non-resident and to a venture capital company/fund - HELD THAT - It is evident that order passed by the Ld. CIT(A) is in violation of the principles of natural justice and therefore, we feel it appropriate to restore this matter back to the file of the Ld. CIT(A) for passing a reasoned order after taking into consideration submission of the assessee. The grounds of appeal of the assessee are accordingly allowed for statistical purposes.

Summary

Issues Involved:
1. Violation of Principles of Natural Justice
2. Addition under section 56(2)(viib) of the Income-tax Act, 1961
3. Disallowance under section 40A(2)(b) of the Income-tax Act, 1961

Detailed Analysis:

1. Violation of Principles of Natural Justice
The appellant contended that the National Faceless Appeal Centre (NFAC) passed an ex-parte order without granting an opportunity to be heard, thus violating the Principles of Natural Justice, specifically the Audi Alteram Partem rule. The Tribunal noted that the Ld. Commissioner of Income-tax (Appeals) [CIT(A)] did not consider the assessee's submissions and passed the order ex-parte. The Tribunal found this to be a violation of natural justice principles and decided to remit the matter back to the Ld. CIT(A) for a fresh decision after considering the assessee's submissions.

2. Addition under section 56(2)(viib) of the Income-tax Act, 1961
The appellant challenged the addition of Rs. 39,99,327/- made under section 56(2)(viib), arguing that the NFAC erred in confirming this addition without appreciating the commercial rationale and the fair market value of the shares. The Tribunal noted that the Ld. CIT(A) merely referred to the Assessing Officer's findings and relevant sections without a detailed analysis. The Tribunal highlighted that the Ld. CIT(A) failed to appreciate the valuation certificate and the commercial rationale behind the transaction. Consequently, the Tribunal remitted the issue back to the Ld. CIT(A) for a fresh evaluation, considering the assessee's submissions.

3. Disallowance under section 40A(2)(b) of the Income-tax Act, 1961
The appellant contested the disallowance of Rs. 2,98,20,988/- under section 40A(2)(b), arguing that the payment to the director/CEO was necessary for business exigencies and not excessive. The Tribunal observed that the Ld. CIT(A) did not consider the appellant's arguments and judicial precedents cited. The Tribunal found that the Ld. CIT(A) only referred to the Assessing Officer's findings and relevant sections without a detailed examination. The Tribunal decided to remit this issue back to the Ld. CIT(A) for a fresh decision after considering the appellant's submissions and providing a reasoned order.

Conclusion
The Tribunal concluded that the orders passed by the Ld. CIT(A) violated the principles of natural justice as the submissions of the assessee were not considered. Therefore, the Tribunal restored all the issues back to the file of the Ld. CIT(A) for a fresh decision after taking into account the assessee's submissions and providing adequate opportunity for a hearing. All three appeals were allowed for statistical purposes.