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2022 (3) TMI 170 - ITAT CHANDIGARHAddition applying the provisions of Section 56(2)(viib) - excess share premium charged by assessee - as argued assessee was a Startup - AO did not agree with the valuation of the assessee - HELD THAT:- The submissions advanced on behalf of the assessee before the CIT(A) were a reiteration of the arguments as advanced before the AO namely, that the assessee was a Startup and the provisions of Section 56(2)(b) were not applicable. In the facts of the present case, the claim of being a Startup let alone availability of supporting evidence was not made. Assessee relied upon the CBDT Notification dated 09.08.2019 which has clarified the applicability of para 6 of the Gazette Notification which has taken into consideration the hardships faced by the Startup companies involving application of Section 56(2)(b) and has clarified that the said Notification will be applicable to those Startup companies also where addition u/s 56(viib) of the Act has been made in assessment order under the Income Tax Act before 19.02.2019 provided the assessee has specifically submitted declaration in Form No.2 that it fulfilled conditions mentioned in para 4 of the above referred notification. In the facts of the said case, the assessee thereafter, had filed Form No.2 in pursuance of para 5 of Notification dated 19.02.2019 on 23rd August, 2019. In the facts of the present case, we notice that the assessment order is dated 28.03.2016 and hence the assessee possibly may well argue that the said case is applicable, however, we find that in the facts of the said case, the Department had the benefit of the relevant documents whereas in the facts of the present case, the concerned authorities did not have the benefit of the factual claim supported by fresh evidences and hence have not taken into consideration either the legal position nor the factual position as is being now canvassed. Accordingly, we have deemed it appropriate to set aside this issue for fresh consideration on the basis of fresh evidences admitted and legal position thereon - Appeal of the assessee is allowed for statistical purposes.
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