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2020 (7) TMI 250 - AT - Income TaxAddition u/s 56(2) (viib) - shares issued to NRI mainly to encourage Foreign Investments - Whether the said person was resident in India or not - Whether valuation of shares is done fully in compliance to Rule 11U and there is no excess money is calculated? - HELD THAT:- If the person in question was not in India in the relevant previous year for 60 days or mor then such a person cannot be said to be a resident in India in that year. As per the copy of passport No. F5207571 submitted before us by learned AR of the assessee along with written submissions, it is seen that the name in the passport is “Vijaya” but as per the Assessment Order, the amount was received from Smt. Vijayalakshmi. This is also seen that passport copy was not submitted before the AO or CIT(A) and it is submitted before the Tribunal for the first time as an additional evidence. Hence, we feel it proper to restore this matter back to the file of AO for a fresh decision because there is no finding of AO or CIT(A) on this aspect as to whether the said person from whom the amount in question was received by the assessee company was a resident in India or not in the present year. The AO is directed to examine this issue as per law and give a categorical finding as to whether the said person Smt. Vijayalakshmi from whom the amount in question was received by the assessee company was resident in India or not in the present year and thereafter, decide this aspect first as to whether the provisions of section 56(2)(viib) are applicable or not in respect of this amount in question received from Smt. Vijayalakshmi. If it is found that the provisions of section 56(2)(viib) are not applicable because the said person is not a resident in India in the present year then nothing more remains to be decided because in that situation, the provisions of section 56(2)(viib) cannot be made applicable in respect of this amount in question but if it is found that the said person i.e., Smt. Vijayalakshmi is a resident in India in the present year, then the whole issue should be examined and decided by the AO afresh. Assessee’s appeal stands allowed for statistical purposes
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