Case Law Details

Case Name : M/s. Kottaram Agro Foods Pvt. Ltd. Vs ACIT (OSD) (ITAT Bangalore)
Appeal Number : ITA Nos. 2852 & 2853/Bang/2018
Date of Judgement/Order : 28/12/2018
Related Assessment Year : 2014-15 & 2015-16
Courts : All ITAT (6102) ITAT Bangalore (303)

M/s. Kottaram Agro Foods Pvt. Ltd. Vs ACIT (OSD) (ITAT Bangalore)

At the very outset, it was submitted by ld. DR of revenue that as per para 4.2 of the assessment order for Assessment Year 2014-15 and para no. 4.3 of the assessment order for Assessment Year 2015-16, it is noted by the AO that person who is said to have valued the share of the assessee company as on 15.11.2013 and 02.05.2014 respectively is none other than the person who has signed the Audit report u/s. 44AB of IT Act. He further pointed out that this is also noted by AO in same two paras of assessment order that Rule 11U(a) of Income Tax Rules, 1962, defines “accountant” as “for the purposes of sub-rule (2) of Rule 11UA means a fellow of the Institute of Chartered Accountants of India within the meaning of the Chartered Accountants Act, 1949 (38 of 1949) who is not appointed by the company as an auditor under section 44AB of the Act or under section 224 of the Companies Act, 1956 (1 of 1956):” He submitted that because of this, the valuation report submitted by the assessee has to be ignored because the same is not as per Rule 11UA and therefore, the action of the AO in determining the fair market value on the basis of NAV should be upheld. In reply, the ld. AR of assessee submitted that the valuation report available on pages 38 to 54 of paper book dated 02.02.2012 relating to value of the shares of the appellant as on 31.03.2012 is signed by a different Chartered Accountant i.e. Manohar S Shet and as per the audited accounts of the assessee for the year ending 31.03.2014 including Tax Audit Report for Assessment Year 2014-15 available on pages 3 to 37 of paper book, these are signed by a different Chartered Accountant Sudhakar S. Prabhu for Amarnath Kamath & Associates and therefore, this is not proper on the part of the AO to say that the valuation report is signed by the auditor. Regarding valuation report as on 31.03.2013 available on pages 95 to 107 of paper book, he submitted that this valuation report is signed by Amarnath Kamath & Associates but as per the audited accounts for the year ending 31.03.2015 including tax audit report for Assessment Year 2015-16 available on pages 72 to 94 of paper book, it can be seen that the same is also signed by Amarnath Kamath & Associates but only for this reason, it can be said that the valuation is not proper. Reliance was placed by him on a Tribunal order rendered in the case of M/s. Vaani Estates Pvt. Ltd. Vs. ITO as reported in (2018) 172 ITD 629 and also on another Tribunal order rendered in the case of Rameshwaram Strong Glass (P) Ltd. Vs. ITO as reported in (2018) 172 ITD 571.

I have considered the rival submissions. First of all, I reproduce the relevant Rule i.e. Rule 11U(a). The same is as under.

11U. For the purposes of this rule and rule 11UA,-

“(a) “accountant” ,—

(i) for the purposes of sub-rule (2) of rule 11UA, means a fellow of the Institute of Chartered Accountants of India within the meaning of the Chartered Accountants Act, 1949 (38 of 1949) who is not appointed by the company as an auditor under section 44AB of the Act or under section 224 of the Companies Act, 1956 (1 of 1956); and

(ii) in any other case, shall have the same meaning as assigned to it in the Explanation below sub-section (2) of section 288 of the Act;”

From the above Rule, it is seen that for the purposes of sub-rule (2) of rule 11UA, the auditor cannot be an accountant for the purposes of Rule 11UA (2).

FULL TEXT OF THE ITAT JUDGMENT

Both these appeals are filed by the assessee and these are directed against two separate orders of ld. CIT(A) -4, Bangalore both dated 20.07.2018 for Assessment Years 2014-15 and 2015-16. Both these appeals were heard together and are being disposed of by way of this common order for the sake of convenience.

2. The grounds raised by the assessee for Assessment Year 2014-15 in ITA No. 2852/Bang/2018 are as under.

1. On the facts and circumstances of the case and in law the learned CIT (A) erred in passing the order in the manner as done.

2. The CIT (A) erred in upholding the rejection of the report of valuation of the shares dated 15.11.2013 by tile AO merely on suspicion, surmise and conjecture and also the value of Rs.400 “-equity share therein inclusive of premium amount of Rs.390/- share.

3. The CIT (A) erred in upholding the arbitrary adoption of value of shares at Rs.100/- share as on 31.03.2012 by the AO as against the value of Rs.400/- share as on 31.03.2014 as per Appellant’s valuation.

4. The CIT (A) failed to appreciate that the consideration received for the shares equaled the fair market value of shares and no excess over the fair market value was received.

5. The CIT (A) failed to appreciate that the Act allowed the Appellant to adopt any method either the prescribed method as per sub-clause (i) to clause (a) to Explanation under clause (viib) of sub-section 2 to Section 56 of the Act or any other method as per sub-clause (ii) to clause (a) of the above said Explanation, when he upheld AO’s resort to determination of value of shares as per Rule 11UA of the Income-tax Rules, 1962.

6. The CIT (A) erred in upholding the disallowance of expenditure titled R&D expenditure though the said expenditure was incurred for new product development of the existing business of the Appellant.

7. The CIT (A) erred in upholding AO’s trodding the boundaries of “limited scrutiny” as regards disallowance of R&D expenditure.

8. The Appellant craves leave to add, amend or alter the grounds of appeal.

9. For these and such other grounds that may be urged at the time of hearing, the Appellant prays that the appeal may be allowed.

3. The grounds raised by the assessee for Assessment Year 2015-16 in ITA No. 2853/Bang/2018 are as under.

1. On the facts and circumstances of the case and in law the learned CIT (A) erred in passing the order in the manner as done.

2. The CIT (A) erred in upholding the rejection of the report of valuation of the shares dated 02.05.2014 by the AO merely on suspicion, surmise and conjecture and also the value of Rs.1,538.55 equity share therein inclusive of premium of Rs.1,528.55 share.

3. The CIT (A) erred in upholding the arbitrary adoption of value of share premium at Rs.714.38 share by the AO as against the value of share premium of Rs.1.528.55 share as per Appellant’s valuation report dated 02.05.2014 which was based on Discounted Free Cash Flow method (DCF method).

4. The CIT (A) failed to appreciate that the consideration received for the shares equaled the fair market value of shares and no excess over the fair market value was received.

5. The CIT (A) failed to appreciate that the Act allowed the Appellant to adopt any method – either the prescribed method as per sub-clause (i) to clause (a) to Explanation under clause (viib) of sub-section 2 to Section 56 of the Act or any other method as per sub-clause (ii) to clause (a) of the above said Explanation, when he upheld AO’s resort to determination of value of shares as per Rule 11UA of the Income-tax Rules, 1962.

6. The Appellant craves leave to add, amend or alter the grounds of appeal.

7. For these and such other grounds that may be urged at the time of hearing, the Appellant prays that the appeal may be allowed.

4. The assessee has also raised four additional grounds in both years which are also reproduced here in below.

Assessment Year 2014-15:

1. The learned CIT(A) erred in law, when he sustained the order of AO which rejected the method of share valuation followed by the Appellant under Rule 1 UA(2)(b) and determined the value applying Rule 11UA(2)(a) without any sanction of law, without appreciating that the provisions of Section 56(2) (viib) formed a deeming fiction enactedto curb transactions in shares using unaccounted money, by unconnected 3rd parties and that the said provisions do not apply to genuine transactions of close relatives of closely held companies.

2. The learned CIT(A) erred in sustaining the order of the AO which determined the share premium at Rs.90/- per share following the valuation method provided under Rule 11UA(2)(a) as against the value of premium at Rs.390/- per share computed by the Appellant following the method as prescribed in Rule 11UA(2)(b) read with technical guide on share valuation issued by Research Committee of the Institute of Chartered Accountants of India.

3. The learned CIT(A) failed to appreciate that there was no discretion available to adopt NAV method by applying Rule 11UA(2)(a) rejecting the method of share valuation adopted by the Appellant as prescribed under Rule 11UA(2)(b) of the Income-tax Rules, 1962.

4. The learned CIT(A) failed to appreciate that the determination of fair market value by an accountant who has signed the report under Section 44AB of the Act is a technical breach of Rule 11 UA(2)(b) and hence a venial breach of Rule.

Assessment Year 2015-16:

1. The learned CIT(A) erred in law, when he sustained the order of AO which rejected the method of share valuation followed by the Appellant under Rule 1 UA(2)(b) and determined the value applying Rule 11UA(2)(a) without any sanction of law, without appreciating that the provisions of Section 56(2)(viib) formed a deeming fiction enacted to curb transactions in shares using unaccounted money, by unconnected 3rd parties and that the said provisions do not apply to genuine transactions of close relatives of closely held companies.

2. The learned CIT(A) erred in sustaining the order of the AO which determined the share premium at Rs.704.38 per share following the valuation method provided under Rule 11UA(2)(a) as against the value of premium at Rs.1,538.55 per share computed by the Appellant following the method as prescribed in Rule 11UA(2)(b) read with technical guide on share valuation issued by Research Committee of the Institute of Chartered Accountants of India.

3. The learned CIT(A) failed to appreciate that there was no discretion available to adopt NAV method by applying Rule 11UA(2)(a) rejecting the method of share valuation adopted by the Appellant as prescribed under Rule 11UA(2)(b) of the Income-tax Rules, 1962.

4. The learned CIT(A) failed to appreciate that the determination of fair market value by an accountant who has signed the report under Section 44AB of the Act is a technical breach of Rule 11UA(2)(b) and hence a venial breach of Rule.

5. At the very outset, it was submitted by ld. DR of revenue that as per para 4.2 of the assessment order for Assessment Year 2014-15 and para no. 4.3 of the assessment order for Assessment Year 2015-16, it is noted by the AO that person who is said to have valued the share of the assessee company as on 15.11.2013 and 02.05.2014 respectively is none other than the person who has signed the Audit report u/s. 44AB of IT Act. He further pointed out that this is also noted by AO in same two paras of assessment order that Rule 11U(a) of Income Tax Rules, 1962, defines “accountant” as “for the purposes of sub-rule (2) of Rule 11UA means a fellow of the Institute of Chartered Accountants of India within the meaning of the Chartered Accountants Act, 1949 (38 of 1949) who is not appointed by the company as an auditor under section 44AB of the Act or under section 224 of the Companies Act, 1956 (1 of 1956):” He submitted that because of this, the valuation report submitted by the assessee has to be ignored because the same is not as per Rule 11UA and therefore, the action of the AO in determining the fair market value on the basis of NAV should be upheld. In reply, the ld. AR of assessee submitted that the valuation report available on pages 38 to 54 of paper book dated 02.02.2012 relating to value of the shares of the appellant as on 31.03.2012 is signed by a different Chartered Accountant i.e. Manohar S Shet and as per the audited accounts of the assessee for the year ending 31.03.2014 including Tax Audit Report for Assessment Year 2014-15 available on pages 3 to 37 of paper book, these are signed by a different Chartered Accountant Sudhakar S. Prabhu for Amarnath Kamath & Associates and therefore, this is not proper on the part of the AO to say that the valuation report is signed by the auditor. Regarding valuation report as on 31.03.2013 available on pages 95 to 107 of paper book, he submitted that this valuation report is signed by Amarnath Kamath & Associates but as per the audited accounts for the year ending 31.03.2015 including tax audit report for Assessment Year 2015-16 available on pages 72 to 94 of paper book, it can be seen that the same is also signed by Amarnath Kamath & Associates but only for this reason, it can be said that the valuation is not proper. Reliance was placed by him on a Tribunal order rendered in the case of M/s. Vaani Estates Pvt. Ltd. Vs. ITO as reported in (2018) 172 ITD 629 and also on another Tribunal order rendered in the case of Rameshwaram Strong Glass (P) Ltd. Vs. ITO as reported in (2018) 172 ITD 571.

6. I have considered the rival submissions. First of all, I reproduce the relevant Rule i.e. Rule 11U(a). The same is as under.

11U. For the purposes of this rule and rule 11UA,-

“(a) “accountant” ,—

(i) for the purposes of sub-rule (2) of rule 11UA, means a fellow of the Institute of Chartered Accountants of India within the meaning of the Chartered Accountants Act, 1949 (38 of 1949) who is not appointed by the company as an auditor under section 44AB of the Act or under section 224 of the Companies Act, 1956 (1 of 1956); and

(ii) in any other case, shall have the same meaning as assigned to it in the Explanation below sub-section (2) of section 288 of the Act;”

7. From the above Rule, it is seen that for the purposes of sub-rule (2) of rule 11UA, the auditor cannot be an accountant for the purposes of Rule 11UA (2). In the present case, as per Para 4.1 of the assessment order, the ld. AR of assessee has submitted vide submissions dated 08.11.2016, a copy of valuation report dated 02.02.2012 as per which the fair market value of shares of company is Rs. 100/- as on 31.03.2012. As per Para 4.2 of the assessment order, subsequently, on 19.12.2016, the ld. AR of assessee furnished before the AO another valuation report dated 15.11.2013 as per which the fair market value of shares is shown at Rs. 400/- per share. In the paper book filed before the tribunal, valuation report dated 15.11.2013 is available on pages 55 to 66 of paper book as per which the value of shares is certified at Rs. 400/- per share and as per audited accounts copy available on pages 3 to 37 of paper book for Assessment Year 2014-15, the auditor is same person i.e. Amarnath Kamath & Associates. As per the copy of certificate of share valuation dated 02.02.2012 available on pages 38 to 54 of paper book, it is seen that this certificate is given by a different Chartered Accountant M/s. Manohar Shet & Co. and he has determined the value of shares at Rs. 100/- per share. In my considered opinion, the second report dated 15.11.2013 is not acceptable because the same is not certified by a person who is accepted as Accountant as per Rule 11U(a) of IT Rules, 1962. The AO accepted the fair market value of Rs. 100/- per share as per certificate dated 02.12.2012 and accepted the receipt of Rs. 90/- per share and taxed only the excess receipt of Rs. 300/- per share out of total receipt of Rs. 400/- per share and hence, the order of AO is in line with the earlier valuation report given by a Chartered Accountant who can be accepted as accountant as per Rule 11U(a) because this valuer has not been appointed as auditor of the assessee company. Hence in Assessment Year 2014-15, I find no reason to interfere in the order of CIT(A). In Assessment Year 2015-16, there is no report of any Chartered Accountant who can be considered as accountant as per Rule 11U(a) of IT Rules, 1962. The AO in this year has worked out the fair market value of assessee company at Rs. 714.38/- on the basis of NAV in the absence of any valuation report of any valuer who can be accepted as an Accountant as per Rule 11U(a) and taxed the excess amount of premium received by assessee over and above the permissible amount at Rs. 714.38/- per share in respect of 36957 shares and taxed the excess amount received of Rs. 1,32,29,088/- u/s. 56(2)(viib) of IT Act. In the facts of the present case, I find no reason to interfere in the order of CIT(A) on this issue in this year also.

8. Before parting, I would like to observe that this is very important to note that when an auditor cannot be accepted as an accountant for the purposes of Rule 11UA (2) read with Rule 11U(a), there is no option available to the AO but to accept the earlier report in A. Y. 2014 – 15 valuing the shares at Rs.100/- per share instead of Rs. 400/- per share as per a certificate by the auditor who cannot be accepted as an accountant for the purposes of Rule 11UA (2) read with Rule 11U(a), and adopt NAV method in A. Y. 2015 – 16. This is very important to note that when a chartered Accountant who can be accepted as an Accountant as per Rule 11UA (2) read with Rule 11U(a) certifies the value, the value certified as on 02.02.2012 is Rs. 100/- per share and when the auditor certifies such value on 15.11.2013 (just after 21 months approx), the value certified rises four times to Rs. 400/- per share. These facts also suggest that such restriction as per Rule 11U(a) on the auditor’s acceptance as Accountant for the purposes of Rule 11UA (2) is well founded. Hence, I find no merit in this argument of the learned AR of the assessee that only because the certificate is given by the auditor, it should not be held that the value certified by him is not acceptable.

9. In the result, both the appeals filed by the assessee are dismissed. Order pronounced in the open court on the date mentioned on the caption page.

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