TaxTMI 
TaxTMI 
2019 (4) TMI 1646
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....in brief are that the assessee company is engaged in the business of development, design and maintenance of website and sale and purchase of shares. The assessee company has received share application money, firstly, in the financial year 2010- 11, i.e., in the assessment year 2011-12 for sums aggregating to Rs. 21,35,00,000/-; secondly, in financial year 2011-12, i.e., in the assessment year 2012-13 for sum of Rs. 50,90,00,00/-, aggregating to Rs. 72,25,00,000/-; and lastly, further received share application money in financial year 2012-13 for sum of Rs. 16,96,01,580/-. All the share application money was received from M/s. Living Media India Ltd. The value of the shares shown by the assessee was Rs. 30 per share, i.e., face value of Rs. 10 and premium of Rs. 20/-. Ld. AO required the assessee to justify the difference between premium charged and the book value of the shares and why the difference should not be added back in terms of section 56(2)(viib). In response, the assessee submitted that during the year the assessee company had allotted / issued shares to M/s. Living Media India Ltd. at the price of Rs. 30 per share based on the valuation report certified by an independent....
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....ear pertaining to next assessment year, therefore, no addition can be made in terms of section 56(2)(viib) as same cannot be made in the year of the receipt of the funds but can only be made in the year when shares were issues or allotted. Enhancement by the CIT(A) 5. However, the Ld. CIT(A) had issued notice for enhancement which for the sake of ready reference is reproduced as under: - "8.3 The show cause notice issued to the appellant is as under: " ... The appeal for the AY 2013-14 is pending before this office, wherein, you have filed grounds of appeal against the addition amounting to Rs. 11,42,86,626/-, made by the AO in terms of the provisions of Section 56(2)(viib) of the Act. 2. On perusal of the assessment order passed by the AO, the submissions and the documents placed by you on record before me during the appellate proceedings, it is noticed that the receipt and utilization of Share Application Money during the AY 2013-14 and 2014-15 is as under: AY 2013*14 Opening balance Rs. 72,25,00,000/- Received during the year Rs. 135,42,20,114/- Utilized for issuing shares Rs. 72,25,00,000/- Closing balance Rs....
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....e company and company is not under any obligation to return it back. Moreover, the share applicant has a right to take its money back till it changes its character i.e. converted into share capital. But the investor cannot get bock the share premium. The only option available to the investor is to get the dividend from the company or gain/loss upon sale of this investment. 6. The section 56(2)(viib) of the Act uses the words "where a company receives, in any previous year, from any person being a resident, any consideration for issue of shares that exceeds the face value" meaning by that the consideration for issue of share can be received by the assessee in any of previous year including the relevant previous year. It does not state that the consideration should be received only during the year. Section 56(2)(viib) simply states that when the share premium is entered into books of the assessee and the share premium combined with the face value exceeds the fair market value of the shares of the assessee company, at that point of time, the provisions of section 56(2)(viib) get triggered. Thus, I propose to hold that the addition u/s 56(2)(viib) of the Act should be made in ....
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....revious year 52,79,24,628) thereby resulting in accumulated losses of Rs. 3,20,39,42,192 against shareholders funds of Rs. 3,10,65,04,984, which has substantially eroded its net worth as on date. Management based on future business plans of the Company and potential infusion of the funds from existing shareholders/others expects to expand and generate positive cash flows. In view of this, these financial statements are prepared on going concern basis." 10. The above suggests: (i) The Auditor has categorically mentioned that the net worth of the company has been eroded and accumulated losses are more than the Shareholders funds. (ii) There are doubts that the company shall be able to continue as a going concern unless funds are invested by the shareholders. (iii) It is entirely dependent on financial and operational support from existing investor and successful implementation of business plan. In such situation, the FMV of the shares of such company cannot be 4-5 times of the face value as claimed. 11. The above discussion coupled with the statement of Shri Joy Kumar Jain recorded by the assessing officer and other material sugge....
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....2,495 -158,54,68,124)/10000 = -89336 per share 14. In view of above, it is clear that during AY 2013-14, shares were issued at a price more than FMV of shares of the assessee company. Thus, the provisions of section 56(2)(viib) are applicable with reference to shares issued during AY 2013-14. Since 2,40,83,333 shares @ 30 per share having face value of Rs. 10 per share were issued during AY 2013-14, therefore, I propose to make an enhancement of Rs. 48,16,66,660 (Rs. 20 x 2,40,83,333) for the AY 2013-14. 15. In this regard, you are show caused and requested to file your reply by 20/09/2018 as to why the income assessed by the AO not be enhanced and the amount of Rs. 48,16,66,660/- not be added to your income for the assessment year 2013-14 under Section 56(2)(viib) of the Act." 6. In response, assessee filed detailed reply which has been incorporated from pages 46 to 64 of the appellate order. In sum and substance, the assessee first of all objected to the jurisdiction to make enhancement on the ground that this issue was never discussed by the AO or arises from the assessment order, because the valuation and valuation method submitted by the assessee has been ....
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....of the assessment record as AO has examined the issue of applicability of 56(2)(viib) in his assessment order; and also the assessee company vide letter dated 18.3.2016 had submitted that amount of Rs. 72.25 crores as share application money was received in the assessment year 2011-12 and 2012-13 and the provision of this section is applicable only from assessment year 2013-14 onwards. He further held that in view of the Supreme Court decision in the case of CIT vs. Nirbheram Deluram, reported in 91 Taxman 181, held that appellate powers are not confined to the matters considered by the AO and therefore, it was open for the Appellate Commissioner to make addition regarding new source of income not considered by the AO. He also distinguished the judgment of Delhi High Court in the case of CIT vs. Sardari Lal & Co. 251 ITR 864, holding that CIT(A) has no power to enhance by discovering new source of income not considered by the AO. However, in the present case the income sought to be enhanced was inextricably linked to the issue under consideration. Therefore, it cannot be said that enhancement is being considered by discovering any new source of income. ii) In so far as ass....
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.... same is not in accordance with rule 11UA, because, firstly, it is after the date of issuance of shares; and secondly, the market value of the shares had determined on Rs. 77.06 per share, whereas in the earlier report dated 27.12.2012 the fair market value of the shares was less than Rs. 30, this shows such a huge variation within the span of four months which is not only unreasonable but also unjustified. The valuation report dated 16.8.2012 was based on unaudited financials, whereas report dated 27.12.2012 is based on audited financials and both reports have been issued by the same Chartered Accountant firms. Further, in the valuation report dated 16.8.2012 NAV method has been adopted whereas in valuation report dated 27.12.2012, DCF method has been adopted. There is no NAV method prescribed under Rule 11UA which is applicable in the instant year and therefore, report dated 16.8.2012 is liable to be rejected. Even going by the valuation report of 27.12.2012 though DCF method has been mentioned however valuer has ultimately applied NAV method only. iv) He further noted that valuer in his report dated 27.12.2012 has mentioned the value of the shares of investment made by ....
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....ying financial statements, in view of which the accompanying financial statements have been prepared under the going concern assumption, and consequently, no adjustment have been considered necessary to the carrying value of classification of balance sheet accounts." 8.47 The relevant portion of Note 2 is as under: "During the current year, the company has incurred losses of Rs. 29,68,96,659 (Previous year 52,79,24,628) thereby resulting in accumulated losses of Rs. 3,20,39,42,192 against shareholders funds of Rs. 3,10,65,04,984, which has substantially eroded its net worth as on date. Management based on future business plans of the Company and potential infusion of the funds from existing shareholders/others expects to expand and generate positive cash flows. In view of this, these financial statements are prepared on going concern basis." 8. From such an observation Ld. CIT(A) deduced that the auditor of Mail Today itself has mentioned that net worth of the company has been eroded and accumulated losses are more than the shareholders funds and there are doubts regarding the ability of the company to continue as going concern and is entirely dependen....
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....s substantiated by the assessee before the AO in terms of sub section (ii) of clause (a) of Explanation to section 56(2)(viib). The valuation method and overall value of the shares was accepted by the AO. The AO has only erred in computing the valuation of the shares by adopting the value partly based on the provisional figures and partly on the audited figures. The discrepancy as per the valuation report and the valuation made by the AO in the assessment order for the assessment year 2013-14 and 2014-15 was highlighted and was elaborated before us in the following manner: - Particulars Valuation on the basis valuation report dated 16.08.2012 on the basis of provisional financial statements Valuation on the basis of valuation report dated 27.12.2012 on the basis of audited financial statements Valuation so made by AO in order of assessment for AY 2013-14 dated 22.03.2016 (at pages 5 and 6 of AO's order) Valuation so made by AO in order of assessment for AY 2014-15 dated 21.12.2016 (at pages 5 and 6 of AO's order) Trade Receivables 1,60.000 1,60,000 1,60,000 * The learned AO at page 6 of Assessment order has inferred that the value/....
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.... of any addition under section 56(2)(viib) of the Act. 13. Ld. Counsel submitted that the intention of the Legislature to bring to section 56(2)(viib) was to curb the menace of unaccounted money and there is no allegation of unaccounted money in the present case, because share application money was invested by holding company to its subsidiary and the entire transaction is through bank. Therefore, at the threshold provision of section 56(2)(viib) would not be applicable on the facts of the assessee's case. In support he strongly relied upon the ITAT Chennai Bench in the case of Vaani Estates (P) Ltd. vs ITO 172 ITR 571. 14. Without prejudice the aforesaid submissions he submitted that the learned AO during the course of assessment proceedings for AY 2013-14 had accepted and was satisfied with the Net Asset Value method so applied by assessee company to value its shares as per Explanation (a) (ii) to section 56(2)(viib), and again reiterated that the learned AO had wrongly took the number of shares as 7,22,60,000 as against the correct number of 2,40,93,333. Thus, the rejection of said method by learned CIT (A) is misconceived in law, as Explanation (a) (ii) requires for the s....
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....ancement he submitted that Ld. CIT(A) can only acquire jurisdiction for enhancement only when AO has examined the issue from point of view of its taxability and or applied his mind on any of the issue. If the issue has not been examined or touched by AO then enhancement is not permissible on such issue. In support, Ld. Counsel strongly relied upon the decision of Jurisdictional High Court in the case of CIT vs. Sardarilal & Company wherein the Hon'ble Delhi High Court has reiterated the principles laid down by the Hon'ble Supreme Court in the case of CIT vs. Rai Bahadur Hardutroy Motilal Chamariya (supra). 18. He further submitted that the assessee company had received Rs. 72,25,00,000/- as share application money in AYs 2011-12 and 2012-13 vide board resolution dated 20.12.2010, whereas, shares were issued on 08.09.2012 at a face value of Rs. 10 and premium of Rs. 20 per share. Thus, 2,40,83,333 shares were issued for a consideration of Rs. 72,25,00,000/- on 08.09.2012, i.e., share premium of Rs. 48,26,66,660/- and face value of Rs. 24,08,33,330/-. As far as facts of the instant case are concerned for the AY 2013-14, it is an undisputed fact that assessee has not received any s....
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....vestment made by assessee company in M/s Mail Today's shares have correctly been made by assessee company at Rs. 40, fair market value, while valuing shares of assessee company in A Y 2013 - 14 and further, even the said fair market value of Rs. 40 has been accepted by the AO of M/s Mail Today in AY 2013-14 and AY 20]4-15, brief details of assessment history of M/s Mail Today is highlighted below (Pg 285 to 287 of the paper book): a. AO of M/s Mail Today has accepted the value of Rs. 43.29 while making assessments u/s 143(3) of the Income tax Act, 1961 (kindly see pages 208 to 213 of paper book); b. Subsequently, vide order passed under section 154 of the Act for AY 2013-14, the fair market value per share was worked out by AO at Rs. 40, thus, a disallowance was made of Rs. 3.29 per share under section 56(2)(viib) by the AO of Mail Today in AY 2013-14. That means, the fair market value of Rs. 40 is accepted by the AO of M/s Mail Today. c. That further, the detail of disallowance made under section 56(2)(viib) for AY 2013- 14 in the shape of chart. d. That further, in AY 2014-15, M/s Mail Today suo moto made disallowance under section 56(2)(vi....
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.... also on statement of valuer of M/s TV Today Network Ltd., which has got the valuation of shares done of M/s Mail Today for its own purposes. (iv) Now, here it is submitted that the valuation of shares of M/s Mail Today has been done on "Discounted Cash Flow Method", whereas, the learned AO in AY 2014-15 has merely gone by the financial statements and has held that since, the company is running into losses, it cannot command Rs. 40 per share in the open market. In this regard, it is submitted that valuation of share is not only dependent on the financials, rather the valuer of M/s Mail Today has taken a holistic view and has valued its shares at Rs. 40 after taking the forecasted revenue growth for a period of 5 years, forecasted free cash flows for a period of 5 years, discount rate, terminal growth rate and terminal value. Thus, rejection of valuation report of M/s Mail Today merely on the basis of losses in financial statements is- not correct unless and until specific discrepancies could have been pointed in the valuation report so furnished through an independent valuation officer. (v) Apart there from, learned AO and CIT (A) in AY 2014-15 have also mentioned....
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....thod of valuation of assessee company in the show cause notice dated 13.09.2018, however, only tinkered with the value of shares of M/s Mail Today to Rs. 10 as against Rs. 40 taken by the assessee company (which was duly explained to CIT(A) as above). Thus, it is most humbly submitted that the order so passed by learned CIT (A) is vitiated in law as the same is without following the principles of natural justice, reliance is placed on the following judgments: (i) Hind Samachar Ltd. vs ACIT (P&H HC) reported in 335 ITR 277. (ii) Prateek Resorts & Builders Pvt. Ltd. (Allahabad HC) reported 199 Taxman 140 (Magz). viii) Thus, the submission of the assessee company is that the issues raised in the enhancement notice dated 13.09.2018 were duly replied by the assessee, whereas, addition so made by learned CIT (A) by applying Rule 11U and 11UA were never confronted in the enhancement notice by learned CIT (A) and has directly come in the appellate order dated 27.09.2018 and as such, the addition so enhanced by learned CIT (A) is vitiated in law." 19. Mr. Salil Agarwal further referring to the sub clause (ii) of clause (a) of Explanation to section 56 (2) (viib....
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.... could have been pointed in the valuation report so furnished through an independent department valuation officer. Apart there from, learned AO in his order for AY 2014-15 and CIT (A) have also mentioned about the valuation report of Mail Today Newspapers Pvt. Ltd. prepared by M/s Joy Financial Consulting Pvt. Ltd. for M/s TV Today Network Ltd., who was examined by AO of the assessee in AY 2014-15. In fact, in doing so, the learned AO has exceeded in his jurisdiction wherein he failed to appreciate the fact that the aforesaid report was obtained by M/s TV Today Network Ltd. and is dated 24.05.2013 which report had been prepared on analysis of the value of the equity shares of Mail Today Newspapers Pvt. Ltd. as at 31.03.2013. The aforesaid report was in fact obtained by listed public limited company and as per the report obtained by them, as they had acquired shares in Mail Today Newspapers Pvt. Ltd. He pointed out that even going by the said report the value as adopted by their Valuer was Rs. 44.78/- per share. Further, the valuation of shares of M/s Mail Today is also governed by the fact that a well known media house listed company M/s TV Today Network Ltd. was an investor in M/s....
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.... out a negative figure of Rs (-) 89,336 per share being the value per share of assessee company. That while doing so, the learned CIT (A) has failed to appreciate that section 56(2)(viib) provides for fair market value, as to higher of calculations made in a (i) and a (ii) and as such, since the working so substantiated by assessee company is as per Explanation a (ii) and is higher than the value worked out as prescribed in Rule II U and II UA, thus, the same should have been adopted for the purposes of valuation of shares of assessee company. As such, the valuation so made by assessee company should have been accepted. Submissions made on behalf of Department: 22. On the other hand, Ld. CIT(DR) strongly relied upon the various observations made by the Ld. CIT(A) and submitted that all the objections raise by the Ld. Counsel has been addressed in detail by the Ld. CIT(A) in his order. He also submitted the issue of jurisdiction of enhancement has been considered by the Ld. CIT(A) and has categorically given the finding that the issues raised by him were inextricably linked with the issue raised by the AO and there is no new source of income which has been considered. He furth....
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....f Rs. 72,25,00,000/- having a share premium of Rs. 48,16,66,660/- and face value of Rs. 2,40,83,330/-, that is, on face value of Rs. 10 and premium of Rs. 20 shares. One important fact which is to be kept in the mind that the value of shares of M/s India Today Online Private Limited, i.e., assessee, is mainly being derived from the value of shares of M/s Mail Today News Paper Private Limited. The AO though in the assessment order has referred to provision of section 56(2)(viib) and also required the assessee to justify the premium received on share application money, but he did not doubt the method adopted by the assessee to value the shares to substantiate the fair market value. In response the assessee had submitted that it had issued shares to Mail Media at a price of Rs. 30 per share based on the valuation report certified by independent Chartered Accountant, the valuation report submitted by the assessee has already been incorporated above. Ld. AO did not tinker with such a valuation except for holding that assessee has taken the percentage of share holding of Mail Today Newspaper Private Limited at 67%, whereas it was 64% as per the audit report of Mail Today. Based on this, ....
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....re in this case the Ld. AO in the assessment order has not tinkered with the valuation of the shares shown by the assessee albeit has gone by the fact that the percentage of shares holding of assessee in Mail Today was 64% and not 67% as calculated by the auditor. Apart from that, in the valuation made by the AO in the assessment order as pointed out by the Ld. Counsel, there were error on part of the AO to factor in the value for 7,22,60,000 shares which in fact during the year was only 2,40,83,333. Barring this, he has accepted entire Valuation report dated 27.12.2012, which was on the basis of audited financial statement. Another important fact emerging from the records is that, the fair market value of the shares of Mail Today from which assessee company derives its value, has been accepted by the AO in the assessment order of Mail Today in the assessment year 2013-14 and 2014-15 at Rs. 40/- in the assessment order, which again was based on DCF method adopted in the Valuation report. The history of such assessment has been heavily reiterated by the Ld. Counsel before us. The said fair market value of Rs. 40 of Mail Today was further corroborated by the fact that, Mail Today had....
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.... shares can be determined, either in accordance with method prescribed which now has been given in Rule 11U and 11UA; or as may be substantiated by the company to the satisfaction of the AO based on the value on the date of issuance of shares. The statute provides that in either of the method, whichever is the higher fair market value of the shares shall be adopted. Here in this case, assessee has stated that the value substantiated by the company to the satisfaction of the AO is higher. 27. Now whether such a satisfaction of the AO can be substantiated by the Ld. CIT(A) by stating that it should be determined as per subclause (i). As observed by us, AO has not doubted the substantiation of the value of the shares and the valuation method except on the points as highlighted above. In our opinion, when AO has accepted the valuation method which was also based on several precedence on the date of the issuance of the shares, then Ld. CIT(A) cannot acquire jurisdiction to tinker with such a valuation or valuation method. Here in this case, the Ld. CIT(A) has doubted the substantiation of the value of the shares on the ground that the valuation report submitted by the assessee of the....
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.... so furnished by assessee are based on Net Asset Value Method, which is not a prescribed method under the Act/Rules and therefore, the reports so furnished by assessee are to be rejected. (iv) The learned CIT (A) had applied 'book value method' to work out the fair market value of shares of Mail Today and assessee company under rule 11 UA(2)(b), which as per him was in negative. (v) He has rejected the contention with regards to consistency for the purposes of valuation of investments in Mail Today. 29. First of all, one has to see the justification of the fair market value as given in Explanation (a) which provides for determination in either of the following two manner; firstly, which may be determined in accordance with method prescribed, i.e., 11U & 11UA; or secondly, the company substantiates the fair market value to the satisfaction of the Assessing Officer based on the value of the date of issuance of shares. As already held above, assessee had substantiated the fair market value which was based on Valuation Report dated 27.12.2012, which in turn was largely based on the valuation of share provided by the Valuer of the Mail Today as on 20.7.2012, wherein....
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.... TV Today Network Ltd. had done the valuation, as they had acquired the shares in Mail Today. Even if one goes by the report of the said Valuer, the value of shares for Mail Today still adopted was at Rs. 44.78 per share. One very important factor relating to the valuation of shares of Mail Today was that, a big Company, M/s. Living Media India Pvt. Ltd. was the investor in Mail Today. Moreover, the valuation of the shares cannot be made simply on the basis of financial statements but has to take into consideration various factors. From the perusal of the statement of Shri Joy Kumar Jain, it is seen that he has also stated that he has not shown valuation in the case of the assessee and nowhere in his statement has he denied the valuation of Rs. 44.78 per share computed by him only. Another important fact borne out from record is that, the said report of Shri Joy Kumar Jain has been accepted by the AO of M/s. TV India Network Ltd. in the order passed u/s 143(3) at Rs. 44.78. Simply relying upon the project report or statement wherein the said auditor has reported that Mail Today was in losses and book value of the shares is negative and based on such statement to infer the value of ....
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....m the actual to show that the Company was running into losses, therefore, DCF is not correct. Valuation under DCF is not exact science and can never be done with arithmetic precision, hence the valuation by a Valuer has to be accepted unless, specific discrepancy in the figures and factors taken are found. Then AO or CIT(A) may refer to the a Valuer to examine the same. 32. Lastly, in so far as rejecting of Valuation report by the Ld. CIT (A) on the ground that the Chartered Accountant who has given the Valuation report in the case of the assessee was not a competent person in terms of 11U, we are of the opinion the same would only be relevant, when the Valuer has done the valuation in the manner prescribed in 11U and 11UA, because it is in Rule 11 such a condition has been prescribed. If assessee has not opted for 11U & 11UA, then all those guidelines and formulas given therein would not apply and Ld. CIT(A) cannot thrust upon the assessee the option should be exercised only under 11U and 11UA, which admittedly at the time of issuance of shares such method was not even prescribed in the statute. Prior to Rule 11UA, Net Asset Value method was accepted method in which no discrepa....
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....ar Jain has stated in his answer to Question No.3 above that the data relied upon for preparation of project report were supplied by the assessee company. In answer to Question No.8, he has clearly stated that previous project report was not consulted. Further, in answer to Question No.10, Sh. Joy Kumar Jain has stated that the data given were not final and audited. He has also clarified in Question No.11 that he has done the work relating to preparation of project report for the first time. In answer to Question No.14, he has stated that "As mentioned above, we discussed the basis of preparation of the projections with the management and the exemption considered by them while making such projections. Management exemptions are included in appendix -I of our report". He was unable to clarify in answer to Question No.15 that huge difference in projection and actual results. Therefore, it is clear that the basis of preparation of project report is not genuine, hence not reliable. 6. The assessee company has submitted the project report of M/s Mail Today News Paper (in which the assessee company has substantial interest). While examining the project report as given by the AR o....
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.... number of shares at a premium of Rs. 20/- to its holding company M/s Living Media Pvt. Ltd. hence, provisions of section56(2)(viib) are clearly attracted. Thus, the excess value received over and above the fair value of share is taxable as income from other sources as per the provisions of section 56(2)(viib) and aggregate value of such shares comes to Rs. 101,58,81,120/-. The same is added back to the income of the assessee. Penalty proceedings u/s 271 (1)( c) are also separately initiated for furnishing inaccurate particulars of its income." 35. This has been confirmed by the Ld. CIT(A) on the same reasoning as given in assessment year 2013-14 except for in his calculation he has reduced the addition from 101,58,81,120/- to amount of Rs. 1,00,74,722. 36. Here in this year also the assessee has opted to substantiate the value of the shares in terms of sub-clause (i) of clause (a) of Explanation. Ld. Counsel has stated that in the appeal for the assessment year 2013-14, assessee has substantiated the value on the basis of valuation dated 27.12.2012 and several other precedence. Our findings given in the appeal for the assessment year 2013-14, that the valuation shown by the ....