AI Drafter 
TaxTMI 
TaxTMI 
2017 (1) TMI 1677
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....2(1) and survey under section 133(A) of the Act was carried out in the business premises of the group companies. Subsequently, notice under section 153A(1)(a) of the Act was issued to assessee requiring her to file return of income in respect of assessment year under consideration for the six preceding assessment years. Assessee filed her return of income pursuant to this notice on 22.08.2013 for the year under consideration declaring an income of Rs. 5, 56, 010/-. Notices under section 143(2) and 142(1) alongwith questionnaire was issued to assessee. In response to the said notice, representative of the assessee appeared and attended the assessment proceedings and submitted relevant details as called for. Assessing Officer accepted the returned income filed by assessee and completed the assessment on 31.03.2014. 3. From the assessment records Ld. CIT observed that during the year under consideration M/s Bestech India Pvt. Ltd., had allotted 10,000 equity shares at Rs. 400/- on 18.03.2010 to the assessee. Further 6,29,428 bonus shares were issued to assessee on 31.03.2010 without any consideration. The bonus shares were issued by way of capitalization of share premium account an....
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.... I intend to initiate proceedings u/s 263 of the Income Tax Act, 1961 for reframing the assessment order for A.Y. 2010-11, dated 31.03.2014. You are hereby required to show cause as to why the impugned assessment should not be revised u/s 263(1) of the IT Act, 1961. You may attend my office on or before 08.12.2015 either personally or through an authorized representative for making your submission. Sd/- (Ajay Singh) Principal Commissioner Income Tax Officer (Central] Gurgaon 5. Before Ld. CIT assessee vide letters dated 18.01.2016 and 21.03.2016 submitted that 1,47,357 right shares and 6,29,428 bonus shares, allotted to assessee does not fall within the ambit of section 56 (2) (vii) and is not liable to be taxed. However, Ld. CIT held the order passed by Ld. AO to be erroneous and prejudicial to the interest of the revenue as the amount of Rs. 1,61,05,074/- need to be added under section 56 (2)(vii) (c) of the Act as under: 06. 6,29,428 bonus shares were allotted by M/s Bestech India Pvt. Ltd., to the assessee for NIL consideration and 1,47,357 right shares were allotted for Rs. 14,73,5707-. However, the fair market value of these shares, as computed u....
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....contradictory to each other. 9. He thus, submitted that keeping in mind the legislative history one must have a close look at section 56 (2)(vii) for ascertaining whether it could be applied to bonus/right shares. He also submitted that prior to the introduction of these clauses, and during the period when gift tax act was applicable, issue of bonus/right shares were never considered as gift by company to its shareholder, and was never subjected to gift tax in the hands of the company, considering it to be a donor. 10. On the contrary Ld. DR supported the order passed by Ld. CIT. She submitted that allotment of shares was without adequate consideration and therefore, there was an attempt that has been made to evade tax. It has been submitted by Ld. DR that as per working under rule 11UA, the value of shares allotted to assessee as on 18.03.2010 was Rs. 400/- each and there is an increase in the assessee's net wealth on account of the allotment of bonus/right shares. She further submitted that right shares issued to assessee was at a face value of Rs. 10/- and bonus shares issued to the assessee were without any consideration. She submitted that there is a difference in the ma....
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....(vi) to section 56(2) which almost replicate clause (v) however, the minimum limit has been increased from Rs. 25,000/- to Rs. 50,000/-. Thus, any sum of money exceeding Rs. 50fOOO/- without consideration by and Individual and HUF was made taxable in the hands of recipient. Finance (No.2) Act 2009 w.e.f., 01,10.2009 introduced clause (vii) to section 56(2) which enhanced the scope of existing provision in clause (vi) and covered the receipt of 'properties' including 'immovable properties' in addition to 'sum of money'. Thus, receipt of any immovable property or property other than an immovable property either without consideration or at a consideration less than its Fair Market Value by an Individual and HUF became taxable in the their hand, in case, consideration is less than FMV for a sum not less than 50,000/-. However, some exception to this provision is also given in the proviso. It is relevant to mention here that these provisions remained to be effective only on individual and HUF. Finance Act 2010 w.e.f. 01.06.2010 introduced clause (viia) to section 56(2) which enhanced the scope of existing provision in clause (vii) to Firm or Com....
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....scribed limit of Rs. 50,000/-) by an individual or an HUF is chargeable to income fax in the hands of recipient under the head 'income from other sources'. However, receipts from relatives or on the occasion of marriage or under a will are outside the scope of this provision. The existing definition of property for the purposes of section 56(2)(vii) includes immovable property being land or building or both, shares and securities, jewellery, archaeological collection, drawings, paintings, sculpture or any work of art. These are anti-abuse provisions which are currently applicable, only, if an individual or an HUF is the recipient Therefore, transfer of shares of a company to a firm or a company, instead of an individual or an HUF, without consideration or at a price lower than the fair market value does not attract the anti-abuse provision. In order to prevent the practice of transferring unlisted shares at prices much below (their) fair market value, it is proposed to amend section 56 to also include within its ambit transactions undertaken in shares of a company (not being a company in which public are substantially interest) either for inadequa....
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.... under: "when a shareholder gets a bonus shares the value of the original share held by him goes down. In effect, the shareholder gets to shares instead of one held by him in and the market value as well as the intrinsic value of the 2 shares put together will be same so nearly the same as the value of the original share before the bonus issue.. It appears from various decisions cited hereinabove, the issuance of bonus shares does not amount to distribution of accumulated profit of a company. The shareholder derives some benefit by the process of capitalising of their cumulative profit but at the same time the value of his original shareholding does not go down." 19. In view of the above observations by Hon'ble Supreme Court, we do not find this decision being of any help to the revenue. 20. We agree with submission advanced by Ld. AR that in case section 56(2)(vii)/56 (2) (viia) is made applicable on issue of bonus/right shares, various other sections of the Act would become contradictory. This is because if for the sake of discussion it is presumed that the provisions of section 56 (2) (vii) are made applicable to the allotment of bonus/Right shares, then ....
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....addition could be made by applying provisions of section 56 (2) (vii) as the case may be. In the result ground No. 1 filed by the assessee stands allowed. Ground No. 2: 23. This ground has been raised by the assessee against the initiation of proceedings under section 263. 24. Ld. AR has submitted that show cause notice issued to the assessee dated 27/11/2015 is bad in law as there was no error in the order passed by Ld. AO. He submitted that even during the search and survey there has been no material that was unearthed which could form basis of the proceedings initiated under section 263. 25. On the contrary Ld. DR submitted that assessment order passed by Ld. AO is erroneous, in so far as prejudicial to the interests of the revenue, as Assessing Officer has not verified regarding issue of bonus/right shares to assesse. She submitted that during the assessment proceedings Assessing Officer has not raised any query regarding the same, which establishes non application of mind by Ld.AO. 26. We have perused the submissions advanced by both sides in the light of the records placed before us. 27. On the specific query raised by this bench to Ld. AR regarding consi....