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Income Tax Appellate Tribunal, “D” Bench, Mumbai
Before: Shri Shamim Yahya (AM) & Shri Ravish Sood (JM)
O R D E R Per Shamim Yahya (AM) :-
These are appeals by the assessee directed against common order of learned CIT(A) dated 1.3.201 and pertaining to assessment years 2011-12 & 2012-13. 2. The issue raised is common. The grounds of appeal read as under.
Grounds of appeal for assessment year 2011-12 :-
The following Grounds of Appeal are independent of, and without prejudice to, one another: Addition of Rs. 47.88.27.000 under Section 68 of the Income Tax Act. 1961 (the Act) on account of share premium
1. On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals)-22, Mumbai [CIT(A)] has factually and legally erred in upholding the addition of Rs. 47,88,27,000 made by the Assessing Officer (AO) on account of receipt towards share premium (from non-resident, Participatie Maatschappiji Graafsschap
Holland Nv) on the alleged ground that the same is treated as unexplained cash credit and revenue receipt.
On the facts and in the circumstances of the case and in law, the CIT(A) has factually and legally erred in applying the provisions of Section 78 of the Companies Act, 1956 and holding that the alleged share premium received has been utilized for non-specified purpose resulting in violation of the provisions of Section 78 of the Companies Act, 1956 and as such loses its character as capital receipts.
3. The Appellant respectfully submits that the AO/CIT(A) failed to appreciate the fact that the premium on share issue is a capital account transaction and does not give rise to any income, accordingly not chargeable to tax under the Act. In view of the same such share premium cannot be taxed as unexplained cash credit under Section 68 of the Act.
4. The Appellant respectfully submits that the AO/CIT(A) disregarding the submissions/documents has erred in not appreciating the fact that, with respect to share premium necessary approvals for Foreign Direct Investment has been obtained, explanation about the exact nature and source was satisfactorily provided to the AO (the same is evident from the Assessment Order itself). Further as per the provision of Section 68 of the Act, there is no application of Section 78 of the Companies Act, 1956 on the said transaction.
5. In light of the above your honour will appreciate that the conclusion reached by the AO/CIT(A) is based on surmises, suspicion, conjecture and taking into account irrelevant and extraneous considerations.
6. In view of the above, the Appellant prays that the addition of Rs. 47,88,27,000 under Section 68 of the Act on account of share premium is erroneous, unwarranted and be deleted
Relief
Your appellant, therefore, respectfully prays to direct the learned AO to: a) Modify the assessment order to the above extent and b) Grant other relief deemed necessary
For A.Y. 2012-13 the grounds are same with amount involved being Rs. 57,69,33,000/-.
Brief facts of the case are as under :-
The brief facts of the case are that perusal of details annexed to the balance sheet as on 31.03.2011 & 31.03.2012 of the assessee company by the A.O. revealed the party wise break up of amounts received on account of share capital, share premium and share application money as under:
Perusal of the above details showed that the assessee company had charged share premium from M/s. Participatie Maatschappiji Graafsschap Holland Nv of Rs.47,88,27,000/- on allotment of 192300 fresh shares in A.Y. 2011-12 and Rs.57,69,33,000/- on allotment of 231700 fresh shares in A.Y. 2012-13. Therefore, the premium charged was @ Rs.2490 per share, face value of which was Rs.10/- per share. Further, it was also seen that the assessee company had allotted fresh shares to M/s. Pantaloon Retail India Ltd. and M/s. Pantaloon Industries Ltd. However, the assessee-company had not charged any share premium from these two Indian promoters. Against this background, the assessee company was asked to justify the charging of share premium from its non-resident JV Promoter, i.e. M/s.Participatie Maatschappiji Graafsschap Holland Nv, vis-a-vis non charging of share premium from the two resident JV promoters i.e. M/s. Pantaloon Retail India Ltd and M/s.Pantaloon Industries Ltd. Further, during the course of assessment proceedings the assessee company was asked to furnish the following details:- a. Names and addresses of the persons to whom such shares were issued, b. Confirmations for the same with complete transaction ledger c. Explanation for the sources of their funds d. In case of foreign remittances, details and evidences of necessary approvals e. Justification for premium charged on the shares issued with specific reference to the basis of valuation and method applied with supporting documentary evidences, f. Copies of the Minutes recorded in the board meeting held for increasing of the share capital and determination and charging of the premium with names and addresses of all the directors and shareholders who attended the board meeting g. Documentary and supporting evidences with detailed note on factors considered for allotting shares at a premium. h. Copies of the share application form submitted, or offer letters received if any i. Copies of the share certificates/counterfoils with certificate numbers and distinctive numbers of such shares. j. Name and address of the share registrar of the assessee company k. Proof of stamp duty or share issue expenses incurred
I. Please state whether any of the directors or their relatives are in any way related to the directors of the company to whom shares were allotted. If so please specify such relationship. m. Furnish copy of Transaction Overview, Proposed Business Plan, Financial overview prepared or submitted for Fund Raising through Equity route and presented to potential investors in your company. Also furnish actual achievements in those areas as at 31.03.2010, 31.03.2011 & 31.03.2012 along with your Balance Sheet, Profit and Loss Account, etc., if any.
The A.O. also observed that Section 78 and other related provisions of the Companies Act, 1956 provided that the amount in the share premium account could only be utilized towards: a) Issue of fully paid bonus shares. b) Writing off of preliminary expenses of the Company. c) Writing off of the expenses, commission or discount on issue of shares or debentures. d) Providing for premium payable on redemption of preference shares or debentures; e) Buy-back of equity shares.
It was however seen by the A.O. from the details filed on record that the amounts received by the company in form of share/securities premium had been actually utilized for the purpose of purchase of investments. Hence, he found it was a clear violation of the above stated provisions of Companies Act and rendered these receipts losing its character in true sense as a capital receipt. In view of this specific fact, this amount was not a capital receipt and the company had no liability to repay the same to the subscribers. Therefore the assessee was asked to show cause and explain as to why such receipts received and appearing in balance sheet as share premium should not be treated as unexplained cash credit for the year and taxed accordingly.
In response to the query raised, the assessee company submitted the details of shares issued to the non-resident JV Promoter, M/s. Participate Maatschappiji Graafsschap Holland Nv and further breakup of share premium and other statutory documents of M/s. Participate Maatschappiji Graafsschap Holland Nv establishing the creditworthiness of the subscriber, compliance of necessary procedures for investment, approval of appropriate authorities for Foreign Direct Investment, Certificate of Foreign Inward Remittance issued by RBI and other relevant documents pertaining to the receipt of money for allotment of share capital , share premium and share application money from M/s. Participatie Maatschappiji Graafsschap Holland Nv. However, in spite of so many opportunities provided to the assessee during the course of assessment proceedings the assessee company failed to submit any reply in respect of the basis for charging of share premium from M/s. Participate Maatschappiji Graafsschap Holland Nv. vis-a-vis not charging of share premium from M/s Pantaloon Retail India Ltd. and M/s pantaloon Industries Ltd. The Assessing Officer therefore, construed that the assessee company had nothing more to offer in this regard.
Further, the perusal of details filed during the course of assessment proceedings revealed that the assessee company was following the same practice year after year wherein on fresh allotment of share capital to the non- resident JV promoter, share premium was charged where as no share premium was charged on allotment of fresh share capital to resident JV promoters. Further, the investment details of balance sheet as on 31.03.2011 and 31.03.2012 revealed that the assessee company was making long term investment in equity shares of Future Generali India Insurance Co. Ltd., a party covered u/s.40A(2)(b) of the Act. Examination of the P & L a/c for A.Y.2011-12 and 2012-13 showed that the assessee company had shown a fixed income of Rs. 90,000/- in both the years being income from consultancy services. Against this income the assessee company had worked out total loss of Rs. 59,87,173/- and Rs. 76,63,915/- for A.Y.2011-12 & 2012-13 respectively. The loss arising in both the years was basically due to the fact that the assessee company was paying huge legal and professional charges of Rs.60,57,678/- and Rs. 77,11,500/- for A.Y.2011-12 & 2012-13 respectively. From the entire gamut of facts, it could be seen that the assessee company was not involved in any business activity apart from a fixed receipt of Rs.90,000/- being income from consultancy services in both the years.
The Assessing Officer observed that looking at the factual position of the financials of the assessee company it could not be ascertained as to how the assessee company was in a position to charge share premium on fresh allotment of shares year after year. That charging of share premium was one such subject which any organization/company had to command rather than demand the same. That certain parameters were to be taken into account for deciding the actual command price of share premium of any company, these being, current business activity of the company, future prospects of the business, market share in the sector/business, assets and liabilities of the company, conglomerate diversification in future and expansion plans of the company. That looking at the financials of the assessee company it could be seen that the assessee company did not command any of the above mentioned parameters and hence the charging of share premium by the assessee company was not justifiable.
The Assessing Officer also observed that even if it was agreed that the assessee company commanded a share premium on allotment of share capital which by the way it did not, then also, not following a uniform policy of charging of share premium could not be justified. That the factual position of relating to the net worth of investments/earnings per share in respect of the resident JV promoters and non-resident JV promoter showed that the resident JV promoters' net worth of investment/ earnings per share was very high in comparison to the non-resident JV promoter. The Assessing Officer analysed the share holding of the assessee company as on 31.03.2011 & 31.03.2012 and found that even though M/s. Participatie Maatschappiji Graafsschap Holland Nv had invested about 50% in the share capital, the shares held by it was only 0.40% and 0.54% as compared to 49.80% and 49.73% held by each of the other two domestic JV promoters as on 31.03.2011 and 31.03.2012 respectively.
The Assessing Officer found that the entire investments of the assessee company was made in Future Generali India Insurance Co. Ltd which was an associate enterprise/holding company of the resident JV promoters. Simultaneously, M/s. Participatie Maatschappiji Graafsschap Holland Nv was also making investments directly and subscribing to the shares of Future General! India Insurance Co. Ltd @ Rs. 10/- per share whereas it had to pay Rs. 2.500/- for one share of the assessee company which again was invested in Future General! India Insurance Co. Ltd. The end result was that M/s.
Participatie Maatschappiji Graafsschap Holland Nv was investing directly in the shares of Future General! India Insurance Co. Ltd @ Rs. 10/-per share and @ Rs. 2,500/- per share by investing through the assessee company.
In view of all the above, the A.O. held that the assessee company had not substantiated/justified its act of charging of share premium either through any submissions or through any supporting evidences such as share valuation report which may justify the act of charging of share premium by the assessee company. The A.O. accordingly treated the entire share premium of Rs.47,88,27,000/- and Rs. 57,69,33,000/- received from M/s. Participate Maatschappiji Graafsschap Holland Nv on allotment of fresh shares as unexplained cash credit u/s. 68 of the Act and added back the same to the total income of the assessee as revenue receipt in the A.Y. 2011-12 and 2012- 13 respectively.
Upon assessee’s appeal learned CIT(A) confirmed the addition made by the assessing officer. The learned CIT(A) held as under :- “Section 68 of the Income Tax Act, 1961 read as under :-
“Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year.”
It is clear from a plain reading of the section as above that the nature and source of any sum found credited in the books of any assessee has to be explained to the satisfaction of the Assessing Officer. In the instant case, the sums of Rs. 47,88,73,391/- & Rs.57,69,33,000/- were found credited in the books of the appellant during the previous years relevant to A.Y.2011-12 & A.Y.2012-13 respectively . The appellant had explained that these sums represented share premium on issue of fresh shares to M/s. Participatie Maatschsappiji Graafsschap Holland Nv, a joint venture promoter of the appellant company The Assessing Officer was not satisfied with the appellant's explanation about the nature of the credit of these said sums and the same were added back to the appellant's income as unexplained cash credits u/s 68 of the Income-tax Act, 1961 in the respective assessment years. The appellant, on the other hand, has contended that the requirements of section 68 of the Income-tax Act, 1961 have been fully complied with in spirit and letter.
6.15 I find that during the course of assessment proceedings, the appellant was asked to justify the premium charged on the shares issued with specific reference to the basis of valuation and method applied with supporting documentary evidences which was not complied with. No such valuation of share premium has been submitted during appellate proceedings also. The appellant has simply contended that the said transaction was a commercial transaction wherein a set of independent investors had agreed to participate in a business venture based on their own understanding of the industry, risk-reward matrix and other relevant factors which are highly subjective for each individual investor. That the said investors had applied their own commercial acumen to arrive at the value of the shares and accordingly invested in the shares of the appellant company. In this regard, I find that M7s. Participatie Maatschsappiji Graafsschap Holland Nv had directly invested in the shares of Future General India Insurance Co. Ltd. @ Rs. 10/- per share. It defies all logic as to how M/s. Participatie Maatschsappiji Graafsschap Holland Nv by applying its commercial acumen would decide to pay a premium of Rs. 2,490/- to get one share of Future Generali India Insurance Co. Ltd. by investing in the appellant company when it was able to get it directly @ Rs. 10/- per share only. This clearly indicates that the receipt of Rs. 2,4907- per share from M/s. Participate Maatschsappiji Graafsschap Holland Nv was not on account of share premium.
6.16 Perusal of the appellant's financials as on 31.03.2010, 31.03.2011 & 31.03.2012 shows that except for earning fixed income of Rs. 90,000/- in all these three years being income from consultancy services, there were no major business activities. The appellant had posted losses of Rs. 4,95,426/-, Rs. 59,87,173/- & Rs.76,63,915/- for A.Y.s 2010-11, 2011-12 & 2012-13 respectively. Perusal of the appellant's balance sheet also shows that the appellant has no assets. The only underlying asset of the appellant is the 49% equity that it holds in Future Generali India Insurance Co. Ltd. which also arose only subsequent to the receipt of share capital and premium which was invested therein. In view of all these facts, it is quite improbable that the amount of Rs. 2,490/- received from M/s. Participatie Maatschsappiji Graafsschap Holland Nv over and above the face value of Rs.10/- per share was on account of share premium.
6.17 As regards the non-charging of premium from the other JV promoters, the appellant has submitted that the fact remains that it was a prerogative of the Board of Directors of a company to decide the premium amount and it was the wisdom of the share holders whether they wanted to subscribe to such a heavy premium. That the Revenue authorities could not question the charging of such huge premium without any bar from any legislated law of the land. Even if it is assumed that it is the prerogative of the Board of Directors of a company to decide the premium amount, once premium is decided to be charged on the issue of shares, premium would be chargeable on all the shares issued. It cannot be the case that some subscribers would pay premium on the shares allotted while others would pay only the face value of the share. It is precisely because of the differential treatment for issuance of shares to different set of investors that the amount received over and above the face value from M/s. Participatie Maatschsappiji Graafsschap Holland Nv has to be treated as not being on account of share premium.
6.18 The Assessing Officer found that the alleged premium received by the appellant was utilized for the purpose of purchase of investments which was a clear violation of the provisions of section 78 of the Companies Act which rendered these receipts losing its character in true sense as a capital receipt. In this connection, the appellant has submitted that the provisions of Section 68 of the Income-tax Act, 1961 were only attracted if the explanation about "the nature and source" of the amount received by the assessee was not offered to the Assessing Officer. That this was clearly not the case in the matter of the appellant company who had fully satisfied this stipulation. That there was no mention about the subsequent utilization of the amounts so received. While section 68 of the Act may not mention about the subsequent utilization of the amounts received, the same is relevant for treatment of the nature of such receipt, 'me appellant is a company and is bound to abide by the provisions of the Company Act. During the course of assessment proceedings, the appellant had simply submitted that there was no violation u/s. 78 of the Companies Act in its case. However, it is seen from the facts on record that the alleged share premium received was invested in the shares of Future Generali India Insurance Co. Ltd. which is clearly in violation of the provisions of section 78 of the Companies Act. As the share premium amount has not been utilised for the purpose for which it has been received, these receipts lose their character as capital receipts.
6.19 The appellant had placed reliance on the decision of the Hon'ble Allahabad High Court in the case of Commissioner of Income-tax (Central) vs. Vacmet Packaging (India) (P.) Ltd. [2014] 45 taxmann.com 204 (Allahabad) which is not applicable to the facts and circumstances of the instant case. In the case relied upon, the decision was rendered in the context of establishing identity, creditworthiness and genuineness of the transaction. There was no issue of nature of transaction involved.
6.20 The appellant had also placed reliance on the decision of the Hon'ble ITAT, Mumbai, Bench 'G1 in the case of Green Infra Ltd. vs. Income-tax Officer-1(1)-4 (ITA no. 7762/Mum/2012)[2013] 38 taxmann.com 253 (Mumbai-Trib) which is also distinguishable from the facts of the instant case as under: a) In the case relied upon, the assessee had submitted valuation of the share premium on Discounted Cash Flow method. In the instant case, no valuation of share premium by whatever method was submitted. b) In the case relied upon, share premium was uniformly charged on all the subscribers which is not so in the instant case. c) In the case relied upon, the assessee was in the business of energy generation and the share premium amount was invested in setting up three subsidiaries for generating wind energy. In the instant case, the appellant is admittedly in the business of providing consultancy and advisory services whereas the alleged share premium was invested in a company which was in the insurance business and was also not a subsidiary company.
6.21 In view of my observations at para 6.15 onwards, I hold that the dissatisfaction of the Assessing Officer with the explanation given by the appellant in respect of the nature of sums of Rs. 47,88,73,391/- & Rs.57,69,33,000/- credited in the appellant's books during the previous years relevant to A.Y.2011-12 & A.Y.2012-13 respectively was based on cogent facts and reasons and hence, fully justified. Accordingly, the additions u/s 68 of the Income Tax Act, 1961 made by the Assessing Officer in both the A.Ys. 2011-12 & 2012-13 are sustained. The appellant's grounds of appeal are dismissed.
Against the above order assessee is in appeal before us. We have heard both the Counsel and perused the records.
Learned counsel of the assessee submitted that assessing officer has made the addition on the premise that assessee has failed to submit basis of charging share premium. That the assessing officer has drawn adverse inference for not charging premium from Indian promoters. That assessee has used the sum involved in making long-term investment in equity shares of future Generali India insurance Co Ltd. – section 40A(2b) company. That assessee company does not have any business activity.
Learned counsel submitted that assessing officer has simply questioned justification of charging high premium. Learned counsel submitted that ultimately the sole reason given for addition is alleged violation of section 78 of the companies Act regarding utilisation of share premium account which is an event post receipt of money. Learned counsel submitted that full and proper compliance of section 78 of the company’s act is there. He submitted that registrar of companies has not raised any objection. He submitted that once the issue of shares at premium is accepted as valid and proper under the companies act the assessing officer cannot sit in the arm chair of registrar of companies when the issue was valid or proper. The ld Counsel submitted that approach of assessing officer/learned CIT(A) to tax share premium on the basis of alleged contravention of section 78 of the companies act is fundamentally wrong. In this regard learned counsel of the assessee placed reliance upon several case laws. Learned counsel further placed reliance upon several case laws for the proposition that addition for share premium under section 68 cannot be done for assessment year 2012-13. That the amendment in section 68 by finance act 2012 with effect from 1/4/2013 is prospective. Learned counsel pleaded that it is a commercial decision and prerogative of the board of directors of the company. In this he referred to several case laws for this proposition.
Per contra learned departmental representative relied upon the orders of the authorities below. In this regard he particularly drew our attention to the order of ITAT in the case of Biskha Sales (P). Ltd. Vs. CIT (152 ITD 750) in the following paragraphs :-
7.9 We further find that the Hon'ble Apex Court in the case of Bharat Fine Insurance Company vs CIT (1964) 34 Cos. 683 has held that prior to the enactment of section 78 premium received on issue of shares were profits. Now section 78 of the Act provides that aggregate value of share premium should be transferred to an account to be called the securities new account. Section 78(2) of the Act provides that share premium account may be utilized for the following purpose :-
(a) in paying up unissued shares of the company to be issued to members of the company as fully paid bonus shares : (b) in writing off the preliminary expenses of the company;
(c) in writing off the expenses of, or the commission paid or discount allowed on, any issue of shares or debentures of the company; or (d) in providing for the premium payable on the redemption of any redeemable preference shares or of any debentures of the company
7.10 From the above it is apparent that but for the restriction provided u/s 78(2) the amounts credited in the share premium account would take the character of the profit and consequentially would be liable to be taxed as such. But the adherence to section 78(2) gives the share premium account the characteristic of capital receipt. In the present case before us we find that there is no examination as to whether the company has ever adhered to the prescription of the Companies Act in this regard. If the company has not adhered to the prescription of the Act, the amount involved was liable to be taxed as revenue receipt.
Learned Departmental Representative pleaded that action of the authorities below is in concurrence with the above proposition. Hence, he submitted that learned CIT(A)’s order should be upheld.
Upon careful consideration we find that the learned CIT(A) in his order has referred to the fact that assessee’s operations do not command such share premium. He has also observed that assessee’s plea that issuing shares premium is a prerogative of board of directors is not applicable in this case as same shares have been issued with differential treatment for issuance of shares to different set of investors. While premium charged from one party is Rs. 2,490/- on face value of share of Rs. 10/-. No such premium is charged from other party as share issued in the same period. Hence he held that the amount received over and above the face value from M/s. Participatie Maatschsappiji Graafsschap Holland Nv has to be treated as not being on account of share premium. Learned CIT(A) has further concluded that the assessee is a company and is bound to abide by the provisions of companies act. That during the course of assessment proceedings the assessee has simply submitted that there was no violation under section 78 of the companies act in this case. However learned CIT(A) held that it is seen from the facts on record that alleged premium received was invested in the shares of Future Generali India insurance Co Ltd which is clearly a violation of the provisions of section 78 of the companies act. Hence ld CIT(A) held that since the share premium amount has not been utilised for the purpose for which it has been received these receipts lose their character as capital receipts.
Upon careful consideration we note that a distinguishing feature of this case is that not only the assessee’s financial, do not justify the share premium the assessee has issued the share at premium of Rs.2,490/- to one party and same shares have been issued without any premium to other party in same period. This certainly add, cogency in the observation of CIT(A) that in substance it is not share premium. Hon’ble Apex Court in the Bharat Fire & General Insurance Co. Vs. CIT (53 ITR 108) has observed that but for section 78 of the Companies Act share premium was profits available. Hon’ble Apex Court in CIT Vs. Allahabad Bank Ltd. (73 ITR 745) has held that after companies Act, 1956 share premium cannot be used for purpose other than 78(2). It is to be noted that these decisions have been rendered by Hon'ble Supreme Court in the context of Income Tax Appeals. In none of the decision referred by learned Counsel of the assessee, this decision has been distinguished. Hence the decisions referred by learned counsel of the assessee do not fructify the assessee’s case in this regard, in view of the direct Supreme Court decision on the issue and case made out by the authorities below. As held by Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Meena Varyal (5 SCC 428) an obiter dictum of Supreme Court is binding on subordinate courts in absence of direct pronouncement on that question elsewhere by Supreme Court.
We further find that honourable Supreme Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (262 ITR 146 dated 15.9.2008) has expounded that non consideration of honourable Supreme Court decision whether cited or not can lead into an order of the tribunal to be suffering from mistake apparent from record. From this it implies that it is incumbent upon subordinate courts to follow the law laid down by the honourable Supreme Court. We find that by referring to the non-compliance of section 78 of the Companies Act the learned commission of income tax has in substance referred to this aspect. The assessee has been evasive in its reply to the question of compliance of provisions of section 78 of the companies act. The assessee has submitted that this is an aspect which arises post receipt of the money. In other words assessee contends that it is not relevant. However this is contrary to the exposition of the honourable Supreme Court as above. Furthermore assessee submits that the registrar of company has not passed any order against the assessee in this regard. We find that it is not the case of the assessee that he has submitted a confirmation from the registrar of company that in the facts of the present case there is no violation of provisions of section 78 of the companies act.
We further find that in the order of the authorities below it has been mentioned that the provisions of section 78 has not been complied in as much as the share premium received has been used for investment in Future Generali India Insurance Company Ltd., a party which is a 40A(2)(b) company. However the assessee in this regard disputes that there is any violation. In our considered opinion on the facts and circumstances of this case this aspect needs to be remitted to the file of assessing officer. The assessing officer is directed to examine in detail this aspect as to whether there is violation of the companies act with regard to the utilisation of share premium account. Thereafter he shall decide as per law Needless to add the assessee should be granted adequate opportunity of being heard.
In the result these appeals filed by the revenue are allowed for statistical purposes. Order has been pronounced in the Court on 17.9.2019.