TMI Blog2020 (7) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... jaya 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 assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 199,20,618/- without appreciating the explanation of the Appellant. 3. The learned CIT (A) failed in giving sufficient opportunities to the Appellant to submit the details called for. 4. The learned CIT (A) ought to have appreciated that said section 56(2) (viib) of the Act are not made applicable to the shares issued to NRI mainly to encourage Foreign Investments. 5. The learned CIT(A) ought to have appreciated the alternative ground that valuation of shares is done fully in compliance to Rule 11 U a (2) (b) and Rule 11 U (a) (i) and there is no excess money is calculated. 6. The learned CIT (A) erred in levying the interest u/s 234B of the Act. 7. Without Prejudice, the additions are excessive, arbitrary and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly, she filed written submissions on 03.07.2020 along with a copy of relevant pages of passport of the individual and submitted a certificate also from the assessee company in which it is stated that in the Financial Year 2014-15 relevant to Assessment Year 2015-16, Smt. Vijayalakshmi was in India only for 42 days and details of stay of Smt. Vijayalakshmi in India in this year are that she entered into India on 15.06.2014 and departed from India on 06.07.2014 having a stay in India of 21 days and again, she entered into India on 05.12.2014 and again departed from India on 26.12.2014 and again having a stay in India of 21 days and in this manner, she was in India only for 42 days in Financial Year 2014-15 relevant to Assessment Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be resident in India in any previous year, if he- (a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more ; or (b) 19 [***] (c) having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty-five days or more, is in India for a period or periods amounting in all to sixty days or more in that year. 6. From the provisions of clause (viib) of sub section 2 of section 56 as reproduced above, it is seen that if a company not being a company in which the public are not substantially interested receives in any previous year from any person being a resident any consideration for issue of shares that exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t received from a resident. As per the provisions of section 6 of Income Tax Act, 1961, reproduced above, an individual will be resident in India in any previous year if he is in India in that year for a period or periods amounting in all 182 days or more or having within the 4 years preceding that year being in India for a period or periods amounting in all to 365 days or more and is in India for a period or periods amounting in all to 60 days or more in that year. Hence, it is very clear 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year, then the whole issue should be examined and decided by the AO afresh in the light various judicial pronouncements available by now such as (i) the tribunal order rendered in the case of Innoviti Payment Solutions Pvt. Ltd., Vs. ITO as reported in 175 ITD 10 (Bang.), (ii) the tribunal order rendered in the case of M/s. VBHC Value Homes Pvt. Ltd., Vs. ACIT in ITA No. 2541/Bang/2019 dated 12.06.2020, (iii) the judgment of Hon ble Bombay High Court rendered in the case of Vodafone M-Pesa Ltd. vs. PCIT as reported in 164 DTR 257. In these judicial pronouncements, it was held that AO cannot change the method of valuation of shares chosen by the assessee which is DCF Method in the present case and in these three cases. If the AO finds tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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