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2021 (8) TMI 332 - AT - Income TaxAddition u/s 68 - Difference in share premium received and the fair value of equity shares as per the report of the registered valuer - assessee failed to forward any cogent reasons as to why the shares were allocated at such a huge premium vis-à-vis the valuation report as obtained by the assessee itself from the registered valuer - HELD THAT:- CIT(A) has erred inasmuch as, he has not examined the information obtained about the various offshore companies of Mauritius and France from whom the information was obtained and from where the source is layered. Secondly, there is no cogent explanation of difference between the values as given to the RBI and that given to Income tax Authorities on the touchstone of the legal maxim of approbate and reprobate as referred by Hon'ble Supreme Court in the case of Suzuki Parasrampuria Suitings Pvt. Ltd. [2018 (10) TMI 484 - SUPREME COURT]. Further the issue in substance here is not addition under section 56 but addition under section 68. In this view of the matter also the case laws referred by learned Counsel of the assessee are not applicable. Furthermore the decision of Green Infra of Hon'ble Bombay High Court was not dealing with layered remittance from source abroad. Moreover the issue here clearly is assessee applying opaque device which comes under the ken of exposition of Hon'ble Supreme Court decision in Mc Dowell & Co. Ltd. [1985 (4) TMI 64 - SUPREME COURT] With the above observation, we remit the issue to the file of learned CIT(A) for fresh adjudication. Needless to add, assessee should be granted adequate opportunity of being heard. Addition u/s 56(2) - towards the difference in the fair market value of shares of Rochem separation systems (India) Private Limited - CIT-A deleted the addition - HELD THAT:- There is nothing mentioned in the Act, which proscribes the application of section 69B is cases such as the present one. In this view of the matter in our considered opinion here as noted above since there is use of opaque colourable device the reference to ITAT decision in Rupee Finance and Management 2007 (2) TMI 240 - ITAT BOMBAY-J]does not fructify the assessee's case. Thus, Ld. CIT(A) has erred in allowing the assessee's appeal despite the fact that the assessee's investment falls under provisions of section 69B.there is some lack of clarity regarding the valuation aspect of the shares as the AO has started with a figure of ₹ 6,875/- and finally considered the value at ₹ 7,067/-. Moreover, valuation aspect was never examined by learned CIT(A). Hence, the valuation aspect needs to be examined by the first appellate authority. Since we have remitted the first issue to the file of Ld. CIT(A), we deem it appropriate to remit this issue also to the file of Ld. CIT(A). Ld. CIT(A) is directed to consider this issue also afresh.Appeal filed by the revenue is allowed for statistical purpose.
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