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2024 (2) TMI 107 - ITAT SURATAddition on account of share premium u/s 56 - FMV determination of share price - difference in FNMV of shares allotted to foreign based company and Indian entities - assessee argued addition u/s 56(viib) does not warrant in the present case as investor company is foreign investor company incorporated in Dubai and assessee-company is joint venture company therefore the provision of section 56(viib) does not apply in the case of assessee-company - HELD THAT:- We note that assessee submitted fair market value of equity shares of the assessee-company, which worked out, on the basis of Discounted Cash Flow Method, and as per DCFM, the fair market value of the equity shares of the assessee-company is Rs. 431.65 per equity share, which was accepted by AO in case of non-residents, in respect of the equity shares of 1,77,820, which were allotted to Dubai-based company. However, the premium amount was not accepted in case of balance shares which were allotted to Indian entities/concerns, hence it is a discrimination done by the Assessing Officer between residents and non- residents. Counsel stated that so far premium is concerned, the Indian Residents are entitled for similar treatment, however, assessing officer has failed to provide the similar treatment. We note that assessee-company worked out the premium, on the basis of Discounted Cash Flow Method, and in accordance with applicable Income Tax Rules. We have gone through the Valuation report prepared as per DCF method and noted that premium amount was worked out as per the norms mentioned in the Income Tax Rules and Discounted Cash Flow Method, therefore, we do not find any inconsistencies, hence we delete the addition. Excess claim of depreciation on plant and machinery - assert put to use for less than 180 days - HELD THAT:- The assessee claimed that trial production has started in August 2012 and claimed full depreciation. However, assessee failed to prove start of production by way of excise return for August 2012. This proves that production has not commenced from August but from March 2013 and assessee is entitled for depreciation for half year only. However, we are of the view that one more opportunity should be given to the assessee to plead his case before Assessing Officer, therefore we remit this issue back to the file of the assessing officer with the direction to produce excise records and to explain put to use of fixed assets, with documentary evidences. AO is also directed to examine the relevant documents and adjudicate the issue in accordance with law. Time limit of assessment u/s 153 - whether assessment order is time barred? - HELD THAT:- We note that assessee’s case was referred to the Division FT&TR for action of information and time taken to exchange for information is to be excluded, which is one year. Therefore, the assessment order was passed within time limit and hence, argument advanced by Ld. Counsel does not have any merit. Hence, we dismiss ground No.3 raised by the assessee.
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