Premium on issue of shares cannot be treated as income: Mumbai ITAT

The Mumbai bench of the Income Tax Appellate Tribunal (“ITAT”), in a recent ruling in the case of Green Infra Ltd. (“the taxpayer”), has held that premium on issue of shares is a capital receipt not chargeable to tax as Income from Other Sources (“IOS”) under the Income-Tax Act, 1961 (“the Act”). The ITAT also held that such a transaction cannot be treated as a sham transaction and further, that such premium cannot be taxed as unexplained cash credit under section 68 of the Act.

Brief facts of the case

• The taxpayer, a newly incorporated company, issued equity shares of Rs 10 per share at a premium of Rs.490 per share and credited the premium to the Share Premium account;

• The taxpayer adopted the Discounted Cash Flow (“DCF”) method in its valuation report and justified the premium charged;

• The Assessing Officer (“AO”) questioned the validity of share premium and claimed it to be a sham transaction on the basis that the DCF valuation was based on unrealistic and vague projections as is evidenced from the actual results of the subsequent years which were available at the time of assessment;

• The AO also noted that the taxpayer did not comply with the provisions of the Companies Act, 1956 in terms of collection and utilisation of share premium;

• Accordingly, the AO treated the share premium as a revenue receipt chargeable under section 56 of the Act as IOS.

Issue before the ITAT

• Whether the issue of shares by the taxpayer at a premium is a sham transaction?

• Whether section 56(1) of the Act is wide enough to charge the share premium as a Revenue Receipt?

• Whether the share premium is taxable as unexplained cash credits under section 68 of the Act?

Taxpayer’s contention

• 98 percent of the shareholding of the taxpayer was held by IDFC Private Equity Fund-II, which is a venture capital fund duly registered with SEBI and managed by a wholly owned subsidiary of a Government company;

• The board of directors of the taxpayer are also related to IDFC Group, which is a government controlled entity;

• The valuation of share premium is based on the Discounted Cash Flow method, which is an accepted method by CBDT for determining fair market value of the unquoted equity shares;

• There is no prohibition under the Companies Act, 1956 or any other law providing any limit on the quantum of share premium that could be charged;

• The share premium received by the taxpayer is in the nature of capital receipt as established by various Supreme Court (“SC”) rulings and hence, not liable to tax under the Act.

Revenue’s contention

• The valuation of shares is not supplemented by increase in the net worth or assets of the taxpayer. Thus, the shares did not have any intrinsic value to justify the issue at premium;

• Since the explanation provided for charging such a large premium by the taxpayer was found unconvincing, the premium should be treated as unexplained cash credit under section 68 of the Act.

Ruling of the ITAT

• The shareholders of the taxpayer and the holding company of such shareholders are all either Public Sector Undertakings or Government companies. Therefore, a transaction which has an element of involvement of the Government, directly or indirectly, cannot be questioned as a sham transaction;

• The issue of shares at a premium is a prerogative of the Board of Directors and the decision to subscribe for shares at a premium is the wisdom of the shareholders. The Revenue cannot question this commercial decision without any specific restriction imposed by any law;

• Share premium is a capital receipt and cannot be taxed under section 56(1) of the Act as revenue receipt;

• Ruling on the new plea raised by the Revenue regarding taxability under section 68 of the Act, the identity of the shareholder is confirmed by the AO based on the information obtained under section 133(6) of the Act. Since the entire transaction is through banking channels and the shareholders are indirectly under the control of the Government, the genuineness and the source of the transaction cannot be questioned. Further, the taxpayer has clearly established that it has utilized the proceeds for investment in its wholly owned subsidiaries and hence, the credibility of the application of funds could not be questioned.

• The transaction can thus, not be charged as unexplained cash credits under section 68 of the Act.