M/S NIRBHAI TEXTILES PVT. LTD.,LUDHIANA vs. ACIT, C-2, LUDHIANA

आदेश/Order

PerSudhanshuSrivastava, Judicial Member: This appeal is preferred by the assessee against the order dated 07.09.2018 passed by the Ld. Commissioner of Income Tax-1, Ludhiana [hereinafter referred to as ‘[CIT (A) ]’ and pertains to assessment year 2014-15.

2.0 The brief facts of the case are that the assessee had filed return of income declaring income at Rs. 44,35,200/- and after

2 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana initial processing of the said return u/s 143(1) of the Income Tax

Act, 1961 (hereinafter called ‘the Act’), the case was selected for

limited scrutiny under the CASS guidelines.

2.1 During the course of assessment proceedings, the Assessing

Officer (AO) noted that the assessee company had allotted

10,68,182 equity shares having a par value of Rs. 10/- per share

at a premium of Rs. 100/- per share. In response to queries

raised by the AO in this regard, the assessee filed calculation of

valuation of shares following the Discounted Cash Flow Method

(DCF) duly certified by a Chartered Accountant. However, the AO

noted that the assessee had submitted three valuations of

different values i.e. Rs. 110/-, Rs. 21.86 and Rs. 117.31 out of

which only the value of Rs. 213.86 was certified by the Chartered

Accountant and, therefore, such uncertified valuations were not

acceptable in terms of Rule 11UA of the Income Tax Rules, 1962

(hereinafter called ‘the Rules’). The AO further observes that since

the valuation in terms of Rule 11UA was Rs. 101.62 per share

and whereas the assessee had issued the shares at Rs. 110/- per

share, the difference of Rs. 8.38 per share was the excess value

received by the assessee company in terms of the Fair Market

Value (FMV) which was to be charged to tax in terms of

3 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana provisions of section 56(2)(viib) of the Act which was calculated at

Rs. 89,51,365/- and added to the income of the assessee.

2.2 Aggrieved, the assessee approached the Ld. CIT (A)

challenging the aforesaid addition but the appeal of the assessee

was dismissed.

2.3 Now, the assessee has approached the Tribunal and

challenged the order of the Ld. CIT (A) by raising the following

grounds of appeal:

4 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana 4. Notwithstanding the above said ground of appeal, the Ld.CIT(A) has failed to take into consideration the valuation as calculated by the appellant at the rate of Rs. 117.31 per share by taking the value of the land of the company as per the circle rate as on 31.03.2014 in view of the amended provisions, which ought to have been considered by the Ld. CIT(A) being the provision in the nature of beneficial provision, has to be taken into consideration as clarificatory in nature as substituted by the Income Tax Rule, 2017.

5 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana 3.0 The Ld. Authorized Representative submitted that the

assessee had submitted calculation of the valuation of the shares

on the basis of ‘Discounted Cash Flow’ method, duly certified by

the Chartered Accountant, which has been reproduced at page

no. 3 of the assessment order and had further submitted another

valuation of the shares on the ‘Net Asset Value Method’ by taking

the stamp duty valuation of the immovable property of the

company and, as per that, the valuation of the shares had been

arrived at Rs. 117.31 as reproduced at page 5 of the assessment

order. It was submitted that the Assessing Officer, however did

not consider these two valuations mainly on the basis that in the

‘Discounted Cash Flow Method’, the discounting factor of 7% has

been taken arbitrarily and on estimate basis and held that as the

valuation was an afterthought and he, thereafter, calculated the

FMV of the unquoted equity shares as on 15.03.2014, on the

basis of the ‘net worth’ on the basis of the ‘book value of assets &

liabilities’ which was contrary to the settled law on the issue.

3.1 It was further submitted that on appeal, the Ld. CIT (A) had

held that FMV (Fair Market Value) cannot be taken on the basis

of the ‘Stamp Duty Valuation’, because that Amendment came

from Assessment Year 2018-19 only by way of a proviso, which

6 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana was substituted w.e.f. 01.04.2018 and, as such, dismissed the

appeal of the assessee by holding that the valuation of the

‘unquoted equity shares’ could be adopted only on the basis of

the ‘book value’ of the immovable property and, thus, confirmed

the addition of Rs. 89,51,365/-.

3.2 It was argued before us, that this action of the AO and the

Ld. CIT (A) in confirming the addition of Rs. 89,51,365/- is

uncalled for since for the unquoted shares, ‘Discounted Cash

Flow Method’ is an approved method as per Rule 11UA and he

further invited our attention to the fact that the Explanation to

section 56(2)(viib) of the Act, which provides that the Fair Market

Value (FMV) of the unquoted equity shares for the purpose of

section 56(2)(viib) of the Act shall be the value as determined in

accordance with such method as may be prescribed. It was

submitted that the prescribed methods of valuation are given

under Rule 11 UA and that the relevant extract of the same is as

under:

“(2) Notwithstanding anything contained in sub- clause (b) of clause (c) of sub-rule (1), the fair market value of unquoted equity shares for the purposes of sub-clause (i) of clause (a) of Explanation to clause (viib) of sub-section (2) of section 56 shall be the value, on the valuation date, of such unquoted equity shares as

7 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana determined in the following manner under clause (a) or clause (b), at the option of the assessee, namely: (a). or (b) The fair market value of the unquoted equity shares determined by a merchant banker or an accountant as per the Discounted Free Cash Flow method Hence the law has specifically conferred an option upon the assessee that for the purpose of S. 56(2)(viib) of the Act an assessee can adopt any of the methods mentioned u/r 11UA(2) of the Rules. From Rule 11UA, it is clear that either the Break Up Value Method (Clause 'a') or DCF Method (Clause 'b') can be applied for the purpose of S. 56(2)(viib) Expl. a(i) of the Act, at the option of the assessee.”

3.3 It was further argued that it is not denied that the assessee

has adopted the clause (b) of Rule 11UA(2) and, for that,

valuation report from the Chartered Accountant had been filed

and, as per law, the assessee was free to choose the method for

valuation which is a recognized valuation as per Rule 11UA(2)

and, for that, the discounted cash flow method, duly certified by

the Chartered Accountant had been submitted and such

valuation being made by an expert, the Assessing Officer is not

expected to change such valuation and the Rules nowhere permit

the AO to make the adjustment therein.

8 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana 3.4 The Ld. AR referred to the order of the Jaipur Bench of the

ITAT in the case of “Rameshwaram Strong Glass Pvt. Ltd. vs. ITO”

reported in 172 ITD 571 wherein it has been held that there was

no discretion with the AO to discard the method of valuation

adopted by the assessee and also it was further held that when

the law has specifically provided a method of valuation and the

assessee has exercised an option by choosing a particular

method (DCF), changing the method by adopting a different

method would be beyond the powers of the Revenue Authorities.

The Ld. AR also relied upon the judgment of the Hon’ble Delhi

High Court in the case of PCIT vs. Cinestaan Entertainment Pvt.

Ltd. (2021) 191 DTR 345 in which the same principle has been

upheld and the order of the Tribunal deleting the addition made

u/s 56(2)(viib) was upheld.

3.5 The Ld. AR also relied upon the order of the Chandigarh

Bench of the ITAT in the case of ‘Dada Ganpati Gold Products

Pvt. Ltd.’ reported in (2021) 92 (Trib.) 408 and argued that

though, this was an appeal u/s 263, but on merits, the Bench

has given a finding by relying upon the various judgments of the

Hon’ble Delhi High Court as cited ‘supra’ and of Rameshwaram

Strong Glass Pvt. Ltd. vs. ITO (supra) and of the Vodafone in Writ

9 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana Petition No. 654 of 2018 dated 01.03.2018 (Bombay), in which,

the same principle has been upheld.

3.6 Similarly, the Ld. AR relied upon the Tribunal’s Order in the

case of ‘Karmic Lab Pvt. Ltd. vs. ITO’ Ward 15(2)(1) in ITA No.

3955/Mum/2018, order dated 28.07.2020 wherein it has again

been held that it is beyond the jurisdiction of the AO to insist

upon a particular valuation, especially, when the Act allows the

assessee to choose one of the two methods.

3.7 It was further argued that, though, the assessee has

submitted valuation as per the ‘Discounted Cash Flow Method’

and then, alternatively, had submitted that even the ‘Net Asset

Method’ could also be applicable and the valuation of the land of

the company was taken as the Stamp Duty Valuation as on the

date of issue of shares, then also, the valuation of the ‘unquoted

shares’ comes to Rs. 117.31 per share as per the page 5 of the

assessment order and, thus, the shares issued at the valuation of

Rs. 110/- per share were in order and no interference was called

for.

3.8 It was further brought to our notice by the Ld. AR that Rule

11UA had been amended vide Finance Act, 2017 and now the

Stamp Duty Value of the Immovable Property had been

10 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana prescribed by the CBDT to be adopted and it was further argued

that though this amendment was made vide Finance Act, 2017

but the same is curative and beneficial in nature and, therefore,

it should be given retrospective effect and, for that, reliance was

placed on the following judgments for the preposition that, any

amendment which is curative in nature and is a beneficial

provision, should be given retrospective effect: o CIT vs Calcutta Export Company as reported in 93 taxmann.com 51 (SC)

o Pr. CIT vs Shivpal Singh Chaudhary as reported in 409 ITR 0087 (P&H HC)

o Pr. CIT vs Perfect Circle India Pvt Ltd. As reported in 104 CCH 008 (Bom HC)

o CIT vs Ansal Landmark Township P Ltd. 234 taxmann 825 (Del HC)

o DCIT vs Aditya Construction Co India Pvt Ltd. As reported in 51 CCH 0222 (Hyd Trib)

o ACIT vs Karle International Pvt Ltd. As reported in 53 CCH 0291 (Bang Trib)

3.9 It was, thus, vehemently argued that, therefore, the

Assessing Officer and the Ld. CIT (A) were not justified in making

and upholding the addition of Rs. 89,51,365/- by rejecting the

method of valuation and the assessee’s issuance of unquoted

11 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana shares, at a value of Rs. 110/- per share, being less than the

value as per Section 56(2)(viib) of the Income Tax Act, 1961 both

by the ‘Net Asset Method’ and by the ‘Discounted Cash Flow

Method’, no addition was called for u/s 56(2)(viib) of the Income

Tax Act, 1961.

4.0 In rival submissions, the Ld. Senior DR relied upon the

order of the AO and the Ld. CIT (A) and argued that the assessee

had arbitrarily taken the value of shares at Rs. 110/- per share

and that the valuation has to be adopted as per the book value

and that the Assessing Officer/ Ld. CIT (A) has rightly considered

the valuation of unquoted shares at Rs. 101.62/- per share and

the ‘net asset method’ adopted by the assessee is not justified,

since that was brought into the Statute by way of an amendment

by the Finance Act, 2017 and, thus, cannot be given retrospective

effect.

5.0 In the rejoinder, the Ld. AR brought to the notice of the

Bench that the issue is covered by the ‘Jurisdictional Bench’ in

the case of ‘Dada Ganpati’ as cited ‘supra’ and argued that it was

the choice of the assessee to adopt any such method and the AO

cannot arbitrarily change that method and direct the assessee to

adopt a particular method as per the binding order of the

12 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana Jurisdictional Bench and the judgment of the Hon’ble Delhi High

Court and others and relied upon his earlier arguments.

6.0 We have carefully considered the rival contentions and have

also gone through the paper books, brief synopsis and the

judgments as cited by the Ld. AR and note that the only issue in

the present appeal is in respect to the application of the provision

of Section 56(2)(viib) of the Income Tax Act, 1961 and the Ld. AR

has also conceded that the application of provision of Section

56(2)(viib) is in order, but the dispute is only with regard to the

method to be adopted for the purpose of valuation of unquoted

shares.

6.1 It is a fact on record that the assessee has furnished the

valuation on the basis of ‘Discounted Cash Flow Method’ and on

the basis of the ‘Net Asset Method’ by adopting the stamp duty

valuation of the immovable property as on 15.03.2014, for which,

necessary evidences have been furnished but the AO and the Ld.

CIT (A) are of the view that the book value of the shares has to be

adopted which comes to Rs. 101.62/- per share against the value

of Rs. 110/- per share and which is less than the value as per

‘Net Asset Method’ and the value as per the ‘Discounted Cash

Flow Method’.

13 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana 6.2 It is also a fact that the AO/ Ld. CIT (A) have not been able

to find any fault in the ‘Discounted Cash Flow Method’ and for

the ‘Net Asset Method’, though, the Amendment came from

Finance Act, 2017 for adopting the stamp duty valuation but

since, it is curative and beneficial provision, it has to be given

retrospective effect as per the binding judgment as cited above in

the following cases:

I. Judgment in the case of CIT vs. Ansal Land Mark Township (P) Ltd. reported in 61 taxmann.com 45 DEL-HC, in which it has been held as under:

“Section 40(a)(ia), read with section 194J, of the Income-tax Act, 1961 Business disallowance Interest etc. paid to a resident without deduction of tax at source (Second proviso) - Assessment years 2008-09 and 2009-10 - Whether second proviso to section 40(a)(ia) is declaratory and curative and it has retrospective effect from 1-4-2005 - Held, yes”

II. Judgment in the case of Calcutta Export Company of Supreme Court of India reported in [2018] 93 Taxmann.com 51 (SC) in which it has been held as under:

“Section 40(a)(ia) of the Income-tax Act, 1961 - Business disallowance - Interest etc. paid to a resident without deduction of tax at source (Retrospective operation) - Assessment year 2005-06 - Whether amendment made by Finance Act, 2010, to provisions of section 40(a)(ia) is curative in nature and it should be

14 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana given retrospective operation from date of insertion of said provision i.e. with effect from assessment year 2005-06 - Held, yes [Paras 28, 30 and 31] [In favour of assessee]”

III. J udgment in the case of PCIT vs. Shivpal Singh Chaudhary reported in 558 of 2017 (O&M) dated June 5, 2018, in which it has been held as under:

Business expenditure-Interest, commission, brokerage etc. to a resident-Assessee filed return of income-During assessment proceeding, AO noted that Assessment was completed u/s 143(3) by making addition-AO completed assessment after making additions under Ss 40(a)(ia) and 43B-CIT(A) granted partial relief by deleting addition made u/s 40(a)(ia) for non- deduction of TDS on payment made for job works-ITAT also deleted addition by holding that second proviso to s. 40(a)(ia) had a retrospective effect and was applicable to assessee for relevant AY-Held, second Proviso to s. 40(a)(ia) is also intended to benefit assessee by creating legal fiction in his favour and not to treat him in default of deducting TDS under certain contingencies and that it should be presumed that assessee had deducted and paid tax on such sum on date of furnishing of return of income by resident/payee-It was discernible that according to proviso, where payee/resident had filed its return of income disclosing payment received by it or receivable by it, and had also paid tax on such income, assessee would not be treated to be a person in default and presumption would arise in his favour-Second proviso to s. 40(a)(ia) was

15 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana declaratory and curative in nature and should be given retrospective effect from 1st April, 2005-CIT(A) had rightly decided issue in favour of assessee which was upheld by ITAT- Revenue's appeal dismissed

IV. Judgment in the case of PCIT vs. Perfect Circle India Pvt. Ltd. reported in (2019) 104 CCH 0008 Mum HC in which it has been held as under:

“Section 40(a)(ia) is not a penalty and proviso is declaratory and curative in nature and would have retrospective effect from 1.4.2005 i.e., the date from the main proviso 40(a)(ia) itself was inserted-Revenue's appeal dismissed.”

V. Order in the case of DCIT vs. Aditya Construction Company India Pvt. Ltd. in ITA No. 1701/Hyd/2016 dated Oct 27, 2017, in which it has been held as under:

“Held, second proviso to section 40(a) (ia) was inserted by Finance Act 2012 with effect from 1st April 2013-Effect of said proviso was to introduce legal fiction where assessee failed to deduct tax in accordance with provisions of Chapter XVII B-Where such assessee was deemed not to be assessee in default in terms of first proviso to sub-Section (1) of section 201, then, in such event, it should be deemed that assessee had deducted and paid tax on such sum on date of furnishing of return of income by resident payee referred to in said proviso- Assessee had followed due procedure of submitting tax compliance before AO as similar to findings of previous AY-Revenue's appeal dismissed.”

16 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana

7.3 Thus, by relying upon the above said precedents, we hold

that the ‘Net Asset Method’ as adopted by the assessee on the

basis of the Stamp Duty Valuation is in order, being beneficial

provision and covered by the judgment of the jurisdictional

Punjab & Haryana High Court in the case of Shiv Pal Singh

Chaudhary (supra) and further by the Hon’ble Apex Court in the

case of Kolkata Export Co. (supra).

7.4 We further opine that even the valuation by the ‘Discounted

Cash Flow Method’ is in order and that issue is covered by the

judgments of the Hon’ble Delhi High Court, Hon’ble Bombay High

Court as well as by the order of the Chandigarh Bench of the

Tribunal in the case ‘Dada Ganpati Gold Products Pvt. Ltd.’ as

cited ‘supra’. The finding of the Tribunal in that case is being

reproduced herein under for a ready reference:

“The second limb of the argument of the learned counsel is that the learned Principal Commissioner of Income-tax has wrongly rejected the valuation of shares at Rs. 33.44. As asked by the learned Principal Commissioner of Income-tax, during the course of proceedings under section 263 of the Act, the assessee filed valuation report of fair market value of unquoted equity shares determined as per DCF method provided under section 56(2)(viib) read with rule 11UA (2) (b) of the Income-tax Rules. The contention of the learned Departmental

17 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana representative is that the valuation has been done on the basis of material supplied by the assessee without verifying the genuineness of the data supplied. The learned counsel has rebutted the said contention on the ground the facts were verifiable from annexure (B) attached with reply dated February 6, 2018 submitted before the learned Principal Commissioner of Income-tax. As pointed out by the learned counsel, the Hon'ble Bombay High Court has held in the case of Vodafone M-Pesa Ltd. v. Pr. CIT (supra), DCF method cannot be ignored at all and the Assessing Officer cannot change the method of valuation adopted by the assessee. The Hon'ble High Court of Delhi in the case of Cinestaan Entertainment (P) Ltd v. ITO (supra) has upheld the findings of the Tribunal holding that the Revenue demonstrate that the methodology adopted by the assessee is not correct as the Assessing Officer had simply rejected the valuation of the assessee on the ground that performance did not match projections and it has failed to provide fair valuer of the shares. In the said case the Tribunal has deleted the addition holding that under section 56(2) (viib) read with rule 11UA the assessee has an option to do valuation of shares and determine fair market value either following DCF or net asset value (NAV) method and the Assessing Officer has no jurisdiction to substitute his own value in place of value so determined. The Jaipur Bench of the Income-tax Appellate Tribunal has held in the case of Rameshwaram Strong Glass (P.) Ltd. v. ITO [2018] 96 taxmann.com 542 (Jaipur) that since the assessee has prepared the valuation report as per the guidelines of the Institute of

18 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana Chartered Accountants of India following DCF method considering plant capacity, industry and market conditions, sanctioning of loan by bank, there is no justification of rejecting the valuation report. The Delhi Bench of the Income-tax Appellate Tribunal has held in the case of Cinestaan Entertainment (P) Ltd v ITO [2019] 106 taxmann.com 300 (Delhi) that the assessee has an option to valuate the shares and determine fair market value either following DCF method or NAV method. So, the evidence on record do not suggest that the valuation report submitted by the assessee had been prepared without verification of the data supplied by the assessee. Hence, we do not find any merit in the contention of the learned Departmental representative that the learned Principal Commissioner of Income-tax has rightly rejected the valuation report submitted by the assessee. We therefore, do not find any cogent and convincing reason for rejecting the valuation report prepared as per the provisions of law and the guidelines issued by the Institute of Chartered Accountants of India. Hence, in our considered view the learned Principal Commissioner of Income tax has wrongly rejected the method of valuation of shares adopted by the assessee for determining the fair market value”

7.5 Therefore, respectfully following the above cited judicial

precedents and on identical set of facts, we set aside the order of

the Ld. CIT (A) and direct the AO to delete the impugned addition.

19 1401-Chd-2018 (A.Y. 2014-15) – M/s Nirbhai Textiles Pvt Ltd, Ludhiana 8.0 In the final result, the appeal of the assessee stands allowed. Order pronounced on 22.08.2022.

Sd/- Sd/- ( N.K. SAINI) (SUDHANSHU SRIVASTAVA) Judicial Member Vice President Dated : 22.08.2022 “आर.के.” आदेशक���त+ल,पअ-े,षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकरआयु.त/ CIT 4. आयकरआयु.त (अपील)/ The CIT(A) 5. ,वभागीय��त�न1ध, आयकरअपील$यआ1धकरण, च3डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड�फाईल/ Guard File

आदेशानुसार/ By order, सहायकपंजीकार/ Assistant Registrar