TAXATION OF SHARE PREMIUM UNDER THE INCOME TAX ACT, 1961

1. Section 56(2)(viib) of the Income Tax Act, 1961 – Extract from Bare Act

(viib) where a company, not being a company in which the public are substantially interested, receives in any previous year, from any person being a resident, any consideration for issue of shares that exceeds the face value of such shares, the aggregate consideration received for such shares as exceeds the fair market value of the shares:

Provided that this clause shall not apply where the consideration for issue of shares is received –

(i) by a venture capital undertaking from a venture capital company or a venture capital fund ; or
(ii) by a company from a class or classes of persons as may be notified by the Central Government in this behalf.
Explanation – For the purposes of this clause, –
(a) the fair market value of the shares shall be the value –
(i) as may be determined in accordance with such method as may be prescribed; or
(ii) as may be substantiated by the company to the satisfaction of the Assessing Officer, based on the value, on the date of issue of such shares, of its assets, including intangible assets being goodwill, know-how, patents, copyrights, trademarks, licenses, franchises or any other business or commercial rights of similar nature,
whichever is higher.
(b) “venture capital company”, “venture capital fund” and “venture capital undertaking” shall have the meanings respectively assigned to them in clause (a), clause (b) and clause (c) of Explanation to Clause (23FB) of section 10;

2. Rules 11U and 11UA(2) of the Income Tax Rules, 1962.

Rule 11UA(2) Notwithstanding anything contained in sub-clause (b) of clause (c) of sub-rule (1), the fair market value of unquoted equity shares for the purpose of sub-clause (i) of clause (a) of Explanation to clause (viib) of sub-section (2) of section 56 shall be the value, on valuation date, of such unquoted equity shares as determined in the following manner under clause (a) or clause (b), at the option of the assessee, namely:-
(a) The fair market value of unquoted equity shares = (A-L) X (PV) ,
(PE)
where,
A = book value of the assets in balance-sheet as reduced by any amount of tax paid as deduction or collection at source or as advance tax payment as reduced by the amount of tax claimed as refund under the Income-tax Act and any amount shown in the balance sheet as asset including the unamortized amount of deferred expenditure which does not represent the value of any asset;
L = book value of liabilities shown in the balance-sheet, but not including the following amounts, namely:-
(i) the paid-up capital in respect of equity shares;
(ii) the amount set apart for payment of dividends on preference shares and equity shares where such dividends have not been declared before the date of transfer at a general body meeting of the company;
(iii) reserves and surplus, by whatever name called, even if the resulting figure is negative, other than those set apart towards depreciation;
(iv) any amount representing, provision for taxation, other than amount of tax paid as deduction or collection at sources or as advance tax payment as reduced by the amount of tax claimed as refund under the Income-tax Act, to the extent of the excess over the tax payable with reference to the book profits in accordance with the law applicable thereto;
(v) any amount representing provisions made for meeting liabilities, other than ascertained liabilities;
(vi) any amount representing contingent liabilities, other than arrears of dividends payable in respect of cumulative preference shares;
PE = total amount of paid up equity share capital as shown in the balance-sheet;
PV = the paid up value of such equity shares; or
(b) the fair market value of the unquoted equity shares determined by a merchant banker or an accountant as per the Discounted Free Cash Flow method.
2.1 Relevant clauses of Rule 11U
11U. For the purpose of this rule and rule 11UA, –
(a) “accountant”, –
(i) for the purpose of sub-rule (2) of rule 11UA, means a fellow of the Institute of Chartered Accountants of India within the meaning of the Chartered Accountants Act, 1949 (38 0f 1949) who is not appointed by the company as an auditor under section 44AB of the Act or under section 224 of the Companies Act, 1956 (1 of 1956); and
(ii) ***
(b) “balance-sheet”, in relation to any company, means –
(i) for the purpose of sub-rule (2) of rule 11UA, the balance-sheet of such company (including the notes annexed thereto and forming part of the accounts) as drawn up on the valuation date which has been audited by the auditor of the company appointed under section 224 of the Companies Act, 1956 (1 of 1956) and where the balance-sheet on the valuation date is not drawn up, the balance-sheet (including the notes annexed thereto and forming part of the accounts) drawn up as on a date immediately preceding the valuation date which has been approved and adopted in the annual general meeting of the shareholders of the company ; and
(ii) ***
(c) “merchant banker” means category I merchant banker registered with the Securities Exchange Board of India established under section 3 of the Securities Exchange Board of India Act, 1992 (15 of 1992);
(i) “unquoted shares and securities”, in relation to shares or securities means shares and securities which is not a quoted shares or securities;
(j) “valuation date” means the date on which the property or consideration as the case may be, is received by the assessee.

3. Share premium is the amount by which the issue price of a share exceeds the nominal value. Under The Companies Act, the value of the share premium must be credited to a securities premium account.

4. Scope of Section 56(2)(viib) of the Income Tax Act, 1961.

There are five (5) aspects (conditions) inherent in Section 56(2)(viib) – all of which must be cumulatively be satisfied – for the share premium received by a company – to be deemed as income from Other Sources of the company in a particular assessment year.
I. TYPE OF COMPANY
II. NATURE OF RECEIPTS
III. RESIDENTIAL STATUS OF PAYEE
IV. AMOUNT (SHARE PREMIUM)
V. ACCRUAL (IN WHICH ASSESSMENT YEAR)

5. TYPE OF COMPANY

5.1. DEFINITION OF CLOSELY-HELD COMPANY
i. The phrase ‘closely-held company’ is not explicitly defined under the Income Tax Act, 1961 but it means a ‘company in which the public is not substantially interested’.
ii. Section 2(18) of the Income Tax Act, 1961 defines ‘a company in which the public is substantially interested’ to include :-
a. a company owned by the Government or the RBI or more than forty percent of the shares are owned by Government or the RBI or a corporation owned by the RBI.
b. a company registered under section 25 of the Companies Act, 1956.
c. a company not having share capital and declared by the Board to be such company
d. Mutual Benefit Finance Company – business of acceptance of deposits from members and notified by the Central Government u/s 620 of the Companies Act, 1956.
e. a company, whose more than 50% Equity Shares (not being Preference Shares) held by one or more Co-operative Societies throughout the previous year.
f. a company not being a Private Company as defined in the Companies Act, 1956, whose Equity Shares were listed on the 31 March of the previous year in a Recognised Stock Exchange. g. a ‘Government Company’ not being a ‘Private Company’ (both terms being defined in the Companies Act, 1956).
iii. As a corollary to the definition of ‘a company in which the public is substantially interested’, a ‘closely held company’ will include :-
a. a Private Company as defined in the Companies Act, 1956 ; and
b. a Company not being a Private Company as defined in the Companies Act, 1956 and whose Equity Share are not listed on the 31 March of the previous year in a Recognised Stock Exchange.
5.2. APPLICABILITY ON FOREIGN COMPANIES
i. Section 56(2)(viib) does not distinguish between an Indian or a Foreign Company.
ii. Section 2(17) defines “company” to include a body corporate incorporated by or under the laws of a country outside India.

6. NATURE OF RECEIPTS

6.1 Share Premium i.e., any consideration for issue of shares that exceeds the face value of such shares.
6.2 Issue of shares at face value where the fair market value is less than face value would not attract section 56(2)(viib).

7. RESIDENTIAL STATUS OF PAYEE

7.1 Section 56(2)(viib) is applicable only when the payee is “any person being resident.”

8. AMOUNT (SHARE PREMIUM)

8.1 The amount of income under section 56(2)(viib) is “the aggregate consideration received for such shares as exceeds the fair market value of the shares.”
8.2 Rules 11U and 11UA(2) of the Income Tax Rules, 1962 provide the formula for determination of “fair market value” of a share.
8.3 The company may substantiate before the assessing officer based on the value, on the date of issue of such shares, of its assets, including intangible assets being goodwill, know-how, patents, copyrights, trademarks, licenses, franchises or any other business or commercial rights of similar nature.

9. ACCRUAL (IN WHICH ASSESSMENT YEAR)

9.1 The income referred to in Section 56(2)(viib) shall accrue in the previous year in which the share premium is received by the company.
9.2 Therefore, only receipts(s) during the “current year” is covered & any opening balances are to be ignored.
9.3 The assessing officer may reopen assessment proceedings u/s 147, to bring “share premium” escaping assessment to tax for the preceding assessment years.
9.4 Any share premium(s) which is received beyond the limitation period cannot be assessed to Income-tax. The limitation period is period for which the assessing officer cannot issue Notice u/s 147 for reassessment of income.

10. Exceptions

10.1 Section 56(2)(viib) shall not apply where the consideration for issues of shares has been received by a venture capital undertaking from a venture capital company or a venture capital fund.
10.2 Section 56(2)(viib) shall not apply where the consideration for issues of shares has been received by a company from a class or classes of persons as may be notified by the Central Government in this behalf.

11. Bonus & Right Issue of shares by a company

Hon’ble ITAT Mumbai bench on subject of taxation under deemed gift u/s 56(2)(vii) for concessional share allotment at less than book value (under rule 11U & 11UA) held bonus shares do not fall under the same; right shares and original first time allotment falls in the same however if new shares allotted to existing share holders pro rata as per exiting holdings no adverse inference/addition possible. (I.T.A. No. 4887/Mum/2013 on 12.03.2014)

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Taxability of share premium received by closely held companies in excess of Fair Market Value

Section 56(2)(viib) of the Income Tax Act, 1961, provides that there shall be chargeable to income-tax under the head “Income from other sources” the following:

“……………(viib) where a company, not being a company in which the public are substantially interested, receives, in any previous year, from any person being a resident, any consideration for issue of shares that exceeds the face value of such shares, the aggregate consideration received for such shares as exceeds the fair market value of the shares:

Provided that this clause shall not apply where the consideration for issue of shares is received—
(i) by a venture capital undertaking from a venture capital company or a venture capital fund; or
(ii) by a company from a class or classes of persons as may be notified by the Central Government in this behalf.
Explanation.—For the purposes of this clause,—
(a) the fair market value of the shares shall be the value—
(i) as may be determined in accordance with such method as may be prescribed; or
(ii) as may be substantiated by the company to the satisfaction of the Assessing Officer, based on the value, on the date of issue of shares, of its assets, including intangible assets being goodwill, know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature,

whichever is higher;
(b) “venture capital company”, “venture capital fund” and “venture capital undertaking” shall have the meanings respectively assigned to them in clause (a), clause (b) and clause (c) of Explanation to clause (23FB) of section 10.
Issues that need to be addressed under clause (viib) of sub-section (2) of section 56:

(i) Cut off time to examine the status of Company: The status of company at the time of receipt of consideration is relevant and not its status at the time of allotment of shares. Hence, if the company was not closely held company at the time of receipt of consideration, no taxability under clause (viib) arises. Further, if the company was closely held company at the time of receipt of consideration but is converted to a widely held company at the time of allotment of shares the question of taxability under new clause (viib) needs to be considered.

(ii) Consideration was received from a non-resident who became a resident at the time of allotment: As observed in point (i) above, since clause (viib) applies to consideration received from a resident, the residential status at the time of receipt of consideration by company and not residential status at the time of allotment is relevant. Hence, as person from whom the consideration was received was non-resident at the time of receipt of consideration, no question of taxability under new clause (viib) arises.

(iii) Consideration received in kind taxable under clause (viib):The word “any” is used in Clause (viib) and it refers to “any consideration for issue of shares” and hence will take in its scope consideration received in kind as well. It is worthwhile to note here that clause (viib) consideration only deciphers about of how fair market value of shares will be determined. The clause is silent on how the consideration in kind will be valued for comparison with fair market value of shares.

(iv) Taxation under section 56(2)(viib) as well as section 68: The proviso to section 68 states that any explanation offered by assessee-company, being a closely held co., in respect of share application money/share premium/share capital credited in its books shall be deemed to be not satisfactory unless the resident in whose name such credit is recorded also offers a satisfactory explanation about the nature and source of such sum so credited. Therefore, if the explanation that amounts represent share capital/share premium/share application is deemed unsatisfactory, then Revenue cannot resort to section 56(2)(viib) which can be invoked only when amounts received are established to represent consideration for issue of shares. Nor can the assessee-company without discharging the additional onus under section 68 insist that section 56(2)(viib) be applied as that is more beneficial. Thus, it appears that double taxation under both provisions is not possible.

Proviso to Section 68 inserted by Finance Act, 2012 w.e.f. April 1, 2013 read as under:
“Provided that where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless—

(a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and

(b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory….”
It has been held in Subhlakshmi Vanijya (P.) Ltd. v. Commissioner of Income-Tax-I, Kolkata, [2015] 60 taxmann.com 60 (Kolkata – Trib.), that this Proviso to Section 68 casting onus on closely held company to explain source of share capital is applicable with retrospective effect.

(v) Refund of share application if shares are not allotted:As per the wordings of the clause, it follows that mere receipt of consideration will attract taxability under new section 56(2)(viib) and hence subsequent refund is irrelevant for the purpose of this clause.

(vi) Deduction of loss if fair market value exceeds the consideration: If FMV exceeds the consideration whether a deduction of ‘loss’ will be allowed is the not adequately deal in the Act. An inference can be drawn from Section 92(3) of the Act which provides that transfer pricing provisions (which contemplate a rewrite of international transactions and specified domestic transactions by substituting arm’s length price for actual transfer price) can be invoked only where it benefits the revenue and not where it benefits the assessee. In the absence of a clear provision, along the lines of section 92(3) in section 56(2)(viib), it is possible to argue that where FMV exceeds consideration, the difference can be claimed as a loss since loss is nothing but negative income.

Tax liability of ESOPs

The tax imposed on buyback of shares and employee stock options is different in case of listed and unlisted companies

An E-commerce major recently approved buyback of $100 million in employee stock options (ESOPs) — a bonanza for its 6,000-odd current and former employees. However, before uncorking the champagne bottle, the employees need to figure the tax implications.
In unlisted companies, the tax treatment for employees will vary, depending on whether the buyback relates to stock options or to shares issued by the company.

If company buys back stock options
Experts say that Section 46A of the Income Tax Act, 1961, specifically deals with tax implications in case of buyback by a company of its own shares or specified securities.

“The term ‘specified securities’ has been assigned meaning as per Section 68 of the Companies Act, 2013, which includes employee stock options. Thus, a view can be taken that in case of buyback of employee stock options, the provisions of Section 46A of the Act shall be applicable.

Accordingly, the difference between cost of acquisition and the value of consideration received by the employee shall be taxable as capital gains.
The gains will be taxable as short-term (held for 36 months or less) or long-term, depending on the holding period of the options.

If the options qualify to be a long-term capital asset, the differential capital gains will be taxable as long-term capital gains, subject to indexation benefit on costs (if any).

“In case of stock options generally there is no option price recovered from the employees at the time of grant. Thus, in such a case, the entire consideration received will be taxable as capital gains.

Experts say tax authorities are known to take the position that stock options were granted to employees on account of the employer–employee relationship.
Accordingly, any income arising out of the same should be taxable as salary income.

Drawing an analogy from taxation of the share perquisite income which arises on allotment/ transfer of shares on exercise of employee stock options, tax authorities have in several cases contended that the taxable value in employee stock options should be the Fair market Value (FMV) as determined by a Category-I merchant banker registered with the Securities and Exchange Board of India.
stock options are taxed twice — as perquisite (part of salary income) during allotment by the employer and as capital gains at the time of transfer by the employee.

“However, there is no double taxation of the same gains or income.
As in case of other types of salaries and perquisites, the employer is required to deduct tax at source while transferring the ESOPs to the employee when the latter exercises the option.

If an unlisted company buys back shares
Employees end up owning shares of companies in various ways such as exercise of ESOPs, grant of restricted stock units or through employee stock purchase plan. When it comes to a buyback of such shares, the company becomes liable to pay income tax (at the rate of 20 per cent + cess + surcharge of the amount of buyback).

“However, the receipt of the amount of the shares in the hands of the employees is tax free.

Any gain from buyback of shares by an unlisted company is not subject to capital gains tax but a ‘buyback distribution tax’.

If an employee sells these shares to a third party, he is liable to pay the long-term/short-term capital gain tax.

In this case, the company need not pay any taxes, as the sale transaction will happen between an employee and the purchaser. This situation could apply to many unlisted start-ups, which bring in investors while raising additional round of funds.
In case of shares in listed companies, if the employee sells these on the exchange after they have become long-term assets, then he/she is exempt from capital gains if the shares are sold on a stock exchange and securities transaction tax is paid.

For buybacks by listed companies too, tax is not applicable.

How short is short-term:
A capital gain/loss is said to be ‘short-term’ if the ESOP securities, after being transferred by the employer to the employee, had been held for:
(A) In unlisted shares — two years or less
(B) In listed shares — one year or less
(C) In other securities — three years or less.
In each case, the gains/loss is said to be long-term if the securities were held for longer than the above time period.
Source : Sudiptodey/Rediff

Chargeability of share application money

Share application money which is taxed as Undisclosed in the hands of a private company can also be taxed as undisclosed income in the hands of applicants by issuing notice u/s. 148?.

The broad scheme of the Act is to charge all income to tax but only in the hands of the same person.

So share application money received by Private Limited Company has to be taxed in whose hands? The Supreme Court in CIT v. Steller Investment Ltd. [251 ITR 263] has given answer by stating that even if it be assumed that the subscribers to the increased capital are not genuine, under no circumstances could the amount of share capital be regarded as undisclosed income in the hands of the company.

Thereafter, the Supreme Court in CIT v. Lovely Exports (P) Ltd. [216 CTR 195] has held that, if share application money is received by assessee – company from alleged bogus shareholders, whose names are given to Assessing Officer, then Department is free to proceed to reopen their individual assessment in accordance with law but this amount of share money cannot be regarded as undisclosed income under section 68 of assessee-company.

However, from the facts, it is clear that it has been wrongly taxed in the hands of the company instead of in the hands of applicant shareholders. Therefore, Assessing Officer can tax undisclosed income in the hands of applicant shareholders by reopening the assessment as per law.

At this juncture, it is necessary to refer the judgement of the Supreme Court in ITO v. Ch. Atchaiah [218 ITR 239], wherein the Hon’ble Court has observed that “where a person is taxed wrongfully, he is no doubt entitled to be relieved in accordance with law but that is different matter altogether. The person lawfully liable to be taxed can claim no immunity because the Assessing Officer has taxed the said income in the hands of another person contrary to law”.

Issues and Controversies under Section 56 & Section 68 of Income-Tax Act,1961

Aside

In Context to Issue/Transfer/Gift of Securities.
The Finance Act 2012 has introduced a new clause in the Income Tax Act,
1961, according to which, with effect from April 1, 2013, that portion of
consideration received for the issue of shares of a public unlisted company
or private company to an Indian resident that is in excess of the fair market
value of those shares, will be subject to tax in the hands of the companies
under the head “income from other sources”. The aim of this paper is to
examine the legal effect of amendment made by the Finance Act 2012 to
Section 56(2) of the Income Tax Act, 1961 by introduction of clause (viib). It
highlights the impact on angel investors in light of the SEBI (Alternative
Investment Fund Regulations) 2012. The AIF Regulations have further made
it difficult for these investors to invest in start ups as stricter requirements
have been laid down by SEBI. The paper attempts to explain clause (viib)
and its ambit in light of its applicability to closely held companies, residents,

receipt of consideration for shares and method of determination of the fair
market value. Simultaneous application of Section 68 and Section
56(2)(viib) has also been discussed.

I. Background

1. Provision under the Income Tax Act,1961
Section 56(2) lists incomes chargeable to income tax under the head
‘Income from Other Sources.’ Finance Act, 2012 inserts clause (viib), with
effect from 1-4-2013(assessment year 2013-14) to include ‘share premium’
received by a company in excess of its fair market value , as its income
chargeable under the head ‘ Income from other sources.’ The clause is as
follows:

“where a company, not being a company in which the public are
substantially interested, receives, in any previous year, from any person
being a resident, any consideration for issue of shares, in such a case if the
consideration received for issue of shares exceeds the fair value of such
shares, the aggregate consideration received for such shares as exceeds the
fair market value of the shares shall be chargeable to income tax under the
head “Income from other sources”.

Finance Act, 2012 simultaneously amends the definition of income in section
2(24) by inserting clause (xvi) to include the above consideration exceeding
fair market value as ‘ income’.

With a view to safeguard the genuine investment by bonafide companies it is
provided that this clause will not apply to.

(i) A venture capital undertaking receiving the consideration for issue of
shares from a venture capital company or a venture capital fund ; and
(ii) A company receiving the consideration from a class or class of persons
(‘Notified persons’) as may be notified by Central Government.
The exception given to venture capital companies and venture capital funds
appears to stem from the fact that these entities are regulated under the
SEBI (Alternative Investment Fund) Regulations 2012 and hence there is
some measure of scrutiny already in place over investments made by them.
The explanation to Category I AIF under SEBI (AIF) Regulations provides
that “Venture Capital Company” or “Venture Capital Fund” will be eligible for
tax “pass through” benefits as per Section 10 (23FB) of the Income Tax Act,
1961.

As such this Clause (viib) introduced by the amendment will mainly affect
the participation of private equity funds or high net worth individuals or risk
capital. The clause will also impact genuine start-ups and other Small and
Medium Enterprises (SMEs) looking to grow rapidly particularly in the
services sector, as they depend upon angel investors or private equity funds
for their funding as they are thinly capitalized. Such funding is normally at a
substantial premium as the underlying assets of the start up do not support
a higher fair market value. Thus, such funding normally depends on future
prospects of the company rather than the current value of the assets of the
company. This provision could destroy the developing culture of angel
investors and private equity funds; funding promising entrepreneurs, who
have the skills or intellectual property but very few tangible assets. The
provisions may therefore encourage companies to form Limited Liability
Partnerships, to raise foreign exchange from angel investors residing outside
India, subject to applicable FDI requirements or to raise funds from
individual Indian resident investors by issuing convertible debentures of the
company.

With a view to address concerns raised by the angel investors, exclusion has
been granted from levy of such tax to certain notified class of persons by
way of an enabling provision. Since the notification has not been issued by
the Central Government in this regard, it is difficult to comment on the
group of permitted class of investors that would be excluded.

2. SEBI AIF Regulations
The SEBI AIF Regulations 2012 even make it difficult for angel investors to
register as Venture Capital Funds with it. The Regulations mention that VCF’s
have positive spillover effects on the economy, and that it may, along with
the government and other regulators, consider granting incentives or
concessions based on the need of the funds.

The AIF Regulations have substantially increased the minimum fund size
from INR 5 Crores to INR 20 Crores and the minimum amount that can be
accepted from an investor from INR 5 lakh to INR 1 crore. The increase is
thus very significant and seems to be with a purpose. They may not be able
to constitute such a large fund and to pool these amounts. Further, there are
additional restrictions on the tenure of the fund (at least 3 years) and heavy
disclosure and record keeping requirements that will significantly add to the
costs of operating as registered entities.

3. Objective of the Amendment to Section 56(2)(viib) of the Income
Tax Act, 1961
The amendment has been classified under the heading “Measures to
Prevent Generation and Circulation of Unaccounted Money”.
Companies were issuing shares at a substantial premium to convert the
unaccounted money without providing any valuation justifying the premium.
The amendment covers such unjustified premium and the excess is being
taxed as income in the hands of the company.

The provisions of section 56(2)(viib) are applicable in the context of shares
issued by a closely held company to a resident shareholder (the said
provisions do not apply to shares issued to non-residents).
The amendment of the Rules to allow DCF valuation for valuing the equity
shares is a welcome change. This will avoid taxation which could have
otherwise arisen if only Balance Sheet based book values were allowed to be
taken for valuation purposes. Further, in the case of investment by nonresident
shareholders, while clause (viib) of section 56(2) would not have
applied, any indirect downstream investment (say, through a holding
company into other operating companies) could have created tax exposures
for the downstream operating company, had the DCF method not been
allowed.

Also, this would have conflicted with the FDI policy, where even downstream
investment by an Indian company having FDI (and owned/controlled by nonresidents) is required to be made as per DCF valuation.

It is worthwhile to note that the amended rules do not disturb the broad
valuation methodology (i.e. Balance Sheet book value based valuation)
prescribed in case of secondary transfer of shares of closely held companies.
Hence, in case of secondary transfer of shares of a closely held company,
the taxpayer does not have an option to chose DCF valuation and has to
adopt the NAV method based on Balance Sheet values. The relaxation in the
definition of the term “Balance Sheet” to accept the latest audited balance
sheet would lessen the burden of the tax-payer to prepare a balance sheet
as on the valuation date. However, the requirement of audit of the Balance
Sheet as of the valuation date in the case of taxation under clause (viia) of
section 56(2) is burdensome.

This would require that for every transfer of shares attracting clause (viia)
of section 56(2), the receiver of the equity shares has to require the
company (the equity shares of which are transferred) to carry out an audit
of the Balance Sheet by the statutory auditor, as of the valuation date. This
burdensome requirement could have been avoided and should be done away
with.

With the amendment to section 68 by the Budget, 2012, in respect of share
capital and share premium, the insertion of section 56(2)(viib) to treat the
amount in excess of FMV as income is not warranted. If we look through
both the amendments to section 56(2)(viib) and section 68, it is short of a
double jeopardy. The department should not resort to the new provisions of
section 56(2)(viib) if the source of amount in the hands of
shareholder/applicant of shares is satisfactorily proved under section 68, as
the new proviso to section 68 itself casts a onerous duty. The law makers
have not envisaged a situation where an addition may be made under
section 68 and if the shares are issued at price more than FMV, the A.O.
may also make deemed addition under section 56(2)(viib). It is suggested
that a proviso should be added to section 56(2)(viib) to mitigate such
hardship by providing that the addition under section 56(2)(viib) will not be
made to the extent income is deemed under section 68. Moreover, the
Hon’ble FM should also keep in mind that as a result of amendment by the
Budget, 2012, the tax rate for amounts to be added under section 68 is now
prescribed at highest marginal rate under section 115BBE w.e.f. the
assessment year 2013-14.

Let us examine the provisions in the amended Sections and the background
behind the same.

56(1) Income of every kind which is not to be excluded from the total
income under this Act shall be chargeable to income e-tax under the
head “Income from other sources” , if it is not chargeable to incometax
under any of the heads specified in section 14,

(2) In particular, and without prejudice to the generally of the provisions
of sub-section (1), the following incomes, shall be chargeable to
income-tax under the head “Income from other sources”, namely :-

(viia) where a firm or a company not being a company in which the public
are substantially interested, receives, in any previous year, from
any person or persons, on or after the 1st day of June,2010, any
property, being shares of a company not being a company in which
the public are substantially interested,

(i) Without consideration, the aggregate fair market value of
which exceeds first thousand rupees, the whole of the
aggregate fair market value of such property;
(ii) For a consideration which is less than the aggregate fair
market value of the property by an amount exceeding fifty
thousand rupees, the aggregate fair market value of such
property as exceeds such consideration :
Provided that this clause shall not apply to any such property
received by way of a transaction not regarded as transfer under
clause (via) or clause (vic) or clause (vicb) or clause (vid) or clause
(vii) of Section 47.

(viib) where a company, not being a company in which the public are
substantially interested, receives, in any previous year, from any
person being a resident, any consideration for issue of shares that
exceeds the face value of such shares, the aggregate consideration
received for such shares as exceeds the fair market value of the
shares:

Provided that this clause shall not apply where the consideration for issue
of shares is received—
(i) by a venture capital undertaking from a venture capital
company or a venture capital fund;
or
(ii) by a company from a class or classes of persons as may be
notified by the Central Government in this behalf.
Explanation.— For the purposes of this clause,—
(a) the fair market value of the shares shall be the value—
(i) as may be determined in accordance with such method as
may be prescribed or
(ii) as may be substantiated by the company to the satisfaction of
the Assessing Officer, based on the value, on the date of
issue of shares, of its assets, including intangible assets being
goodwill, know-how, patents, copyrights, trademarks,
licenses, franchises or any other business or commercial
rights of similar nature.
whichever is higher;
(b) “venture capital company”, “venture capital fund” and “venture
Capital undertaking” shall have the meanings respectively assigned
to them in clause (a), clause (b) and clause (c) of [Explanation] to
clause (23FB) of section 10;]

Extract of Object Memorandum of Finance Bill, 2012
The new clause will apply where a company, not being a company in which
the public are substantially interested, receives, in any previous year, from
any person being a resident, any consideration for issue of shares. In such a
case if the consideration received for issue of shares exceeds the face value
of such shares, the aggregate consideration received for such shares as
exceeds the fair market value of the shares shall be chargeable to incometax
under the head “Income from other sources”. However, this provision
shall not apply where the consideration for issue of shares is received by a
venture capital undertaking from a venture capital company or a venture
capital fund.

Further, it is also proposed to provide the company an opportunity to
substantiate its claim regarding the fair market value. Accordingly, it is
proposed that the fair market value of the shares shall be the higher of the
value—

(i) as may be determined in accordance with the method as may be
prescribed; or
(ii) as may be substantiated by the company to the satisfaction of the
Assessing Officer, based on the value of its assets, including intangible
assets, being goodwill, know-how, patents, copyrights, trademarks, licences,
franchises or any other business or commercial rights of similar nature.
This amendment will take effect from 1st April, 2013 and will, accordingly,
apply in relation to the assessment year 2013-14 and subsequent
assessment years.

India is having one of the most reasonable tax structure with 30% with
maximum Income-tax and more than that as per latest report of
Parliamentary Committee the effective tax rate in India is just around 20%.
However, most unfortunate millions of citizens in our country are still not
paying the Tax or are still not paying the true and correct tax honestly.
Though avoidance of income tax is permissible under the law; but evasion
certainly is illegal as well as immoral. Honest citizens paying true and correct
tax notice that those who are dishonest citizens are able to generate
unaccounted income and in turn plough them back in the Industry, and grow
richer and richer and amas wealth they are at loss and they sometimes get
frustrated. Definitely not in this part of the country i.e. in Gujarat but in
some of the States in Eastern part of the country systematic chain and
system is prevailing like parallel economy of black money for conversion of
black money into white money. These kinds and modus operandi of
conversion into white money by different modes are happening in front of
the eyes /below the nose of Income tax Authorities. Even top most
bureaucracy in Delhi and Finance Ministry and others are aware of all such
practices. The Ministry having realized that Judicial Decisions and Executive
actions are not sufficient to curb such rapid growth of conversion of
unaccounted money into accounted one, Finance Ministry thought it fit and
rightly so to make appropriate amendments to check and control such
recognized approved and famous method of conversion of black money into
white money.

Issues Arising from Proposed New Clause (viib ) in section 56(2)
1. There are various issues that arise as regards new clause (viib) which are
dealt with as under:

(i) Share application money received on 30-3-2012, but allotment of
shares made on 30-4-2012. Whether any amount taxable under new
clause (viib)? – It appears that taxability will arise in the year of receipt of
consideration for issue of shares(and not year of allotment) since the words
“receives” is used in new clause (viib ). Since, new clause comes into
operation from A.Y. 2013-14, it appears that it will apply only if
consideration is received on or after 1-4-2012. Hence, no question of
taxability under new clause (viib).

(ii) Company is widely held company at the time of receipt of
consideration but is converted to a closely held company at the time
of allotment of shares – It appears that status of company at the time of
receipt of consideration is relevant and not its status at the time of allotment
of shares .Therefore, since company was not closely held co. at the time of
receipt of consideration, no question of taxability under new clause (viib)
arises.

(iii) Company is closely held company at the time of receipt of
consideration but is converted to a widely held company at the time
of allotment of shares – It appears that status of company at the time of
receipt of consideration is relevant and not its status at the time of allotment
of shares .Therefore, since company was closely held co. at the time of
receipt of consideration, question of taxability under new clause (viib) arises.
(iv) Consideration was received from a non-resident who became a
resident at the time of allotment – Since clause (viib) applies to
consideration received from a resident, the residential status at the time of
receipt of consideration by company and not residential status at the time of
allotment is relevant. Therefore, as person from consideration was received
is non-resident at the time of receipt of consideration, no question of
taxability under new clause (viib) arises.

(v) Whether consideration received in kind taxable under new
clause(viib)? –New clause (viib) refers to “any consideration for issue of
shares”. The word “any” is very wide in scope and will take in its scope
consideration received in kind also. However, new clause (viib) only speaks
of how FMV of shares will be determined. It does not say how consideration
in kind will be valued for comparison with FMV of shares. Since provision
does not say how consideration in kind will be valued, a view is possible that
it is not intended to apply where part or whole of consideration is received in
kind. The object seems to be to target cash transactions as black money is
generated through cash transactions as can be seen from new proviso to
section 68.

Thus it can be seen that the clear intention behind this Amendment is
to control the unwarranted or bogus or unjustified subscription to share
premium. As explained in the example, it will certainly control and stop the
menace of black money or unaccounted money being rotated and
channelized through this mode of Companies. But while doing this controlling
exercise it may hit certain genuine transactions of bonafide share premium
also. There may be companies who cannot justify the share premium on the
basis of existing valuation even if done on global valuation concept. The
Rules of Valuation are clearly prescribed in Rule 11U and 11UA (See
Appendix 3 & 4). Therefore, any other global valuation done by best of the
firm of Chartered Accountant or a Management Consultant may not be
accepted by the Income Tax Authorities if not done strictly as per the Rules.
Particularly in cases of companies where software innovations are being
conducted and are on pipeline or in cases where technology up gradation or
a secret formula is planned to be sold through heavy share premium may be
adversely affected by this Amendment.

No-doubt now onwards company which desirous to issue shares on
premium shall have to get the valuation done by Chartered Accountant or an
Expert. This may add to the cost of issue of shares and in certain cases as
mentioned above may also lead to long drawn litigation. But then this is not
a fall out of the amendment but the result of unethical practices going on
and judiciary not able to control or punish appropriately. This is the price
one has to pay in democracy.

Simultaneous Amendment in Section 68
SECTION 68: CASH CREDITS.
Where any sum is found credited in the books of an assessee
maintained for any previous year, and the assessee offers no explanation
about the nature and source thereof or the explanation offered by him is
not, in the opinion of the Assessing Officer, satisfactory, the sum so credited
may be charged to Income-tax as the income of the assessee of that
previous year.

Proviso added by Finance Act, 2012 w.e.f. Assessment Year 2013-14.
[Provided that where the assessee is a company,(not being a company in
which the public are substantially interested) and the sum so credited
consists of share application money, share capital, share premium or any
such amount by whatever name called, any explanation offered by such
assessee-company shall be deemed to be not satisfactory, unless –
Provided further that nothing contained in the first proviso shall apply if the
person, in whose name the sum referred to therein is recorded, is a venture
capital fund or a venture capital company as referred to in clause (23FB) of
section 10.]

Let us understand what was happening and why such amendment:
Company XYZ Pvt. Ltd. used to adopt the following modus operandi
to convert black money into white money:

– 100 slum dwellers were contacted and their PAN cards were made and
their bank accounts were opened. In the previous year 31-03-2011,
Rs. 2,00,000 each cash was deposited in their bank accounts and
cheque of Rs.2,00,000 was taken from them in the name of the
company XYZ Pvt. Ltd. They were made to sign share application form
that they are applying for 10,000 shares of 10 each face value at a
premium of 10. They were also made to sign blank transfer deeds for
share transfer. Each slum dweller’s return was filed showing income of
Rs. 2,00,000/- for previous year 31-03-2013 and tax thereon is NIL.
For this process each slum dweller was paid Rs.2,000 in cash i.e.
unaccounted money.

– In the above process company XYZ Pvt. Ltd. has deposited
unaccounted cash of Rs.2,00,000 x 100 = Rs.2 crores. In the slum
dwellers’ bank account and received cheques of Rs.2 crores as share
application money in the company XYZ Pvt. Ltd.
– The Fair Market Value of shares of company XYZ Pvt. Ltd. is Rs. 20 per
share.

– The company XYZ Pvt. Ltd. either shows Rs.2 crores as Share
Application Money or allots 10,000 shares of Rs.10 each at a premium
of Rs.10 to the slum dwellers however, physical custody of these
shares is not given to the slum dwellers and company retains the
same. The company is safeguarded by the blank share transfer deeds.
– Now the Assessing Officer takes the case of the company in the
scrutiny assessment u/s. 143(3) for the above mentioned previous
year. The Assessing Officer asks the explanation from the company for
the nature and source of sum of Rs. 2 crores credited by the company
in its books as share application money or asks share capital
introduced and premium thereon. The A.O. asks for;
– (i) bank pass books of these 100 slum dwellers.
– (ii) personal appearance of these 100 slum dwellers
The company simply produces to the A.O.;
– (i) Name and address of slum dweller
– (ii) PAN of slum dweller
– (iii)ITR of slum dweller.
– The company does not produce the pass books of these slum dwellers
and does not produce them personally before A.O. Assessing Officer to
investigate the case and finds that cash of Rs. 2,00,000 was deposited
in bank account of each slum dweller and finds that slum dweller has
no financial standing. Slum dweller is not able to offer explanation
about the source of Rs.2,00,000 or the explanations offered by him
are found to be unsatisfactory by Assessing Officer.

The Assessing Officer invokes section 68 and adds Rs.2 crores to the
income of the company as unexplained cash credits because the
persons from whom share application money came were not able to
prove the source of money in their hands. Such additions u/s.68 so
made in the hands of the comp[any was not being sustained in
Appeals because Hon’ble Supreme Court Lovely Exports (P) Ltd.
[(2008) 216 CTR 195], has held as under:

“If the share application money is received by the assesseecompany
from alleged bogus shareholders, whose names are given to
the Assessing Officer, then the department is free to proceed to
reopen their individual assessments in accordance with law but this
amount of share money cannot be regarded as undisclosed income
under section 68 of the assessee-company. The Supreme Court held
that there is no onus on the company to prove the source of
money in the hands of shareholder or the persons making
payment of share application money. If company identifies the
persons from whom money has been received, then section 68 cannot
be involved in the hands of company.”

– Thus, by virtue of above Supreme Court Judgment, no income was
possible to be added in hands of company under section 68.
– In hands of slum dwellers, the Assessing Officer applies section 68 as
Rs.2,00,000 credited in bank account is unexplained. The slum dweller
is not able to offer any explanation about the source of Rs.2,00,000 or
the explanation offered by him are found to be unsatisfactory. But
since the slum dwellers had no other source of income, the only
income assessed was Rs.2 lakhs under section 68. Considering the
slab limit of Rs.2,00,000 no tax/interest/penalty could be levied on the
above slum dwellers.

– Thus, Rs.2 crores black money thus was possible to be converted into
white money by the company with no tax implication.
– However, it is important to note the recent decision of Hon’ble
High Court of Delhi in case of CIT vs. Nova Promoters & Finlease (P)
Ltd.[(2012) 18 taxmann 217] wherein Hon’ble Justice Mr. R.V. Easwar
held that “there is ample authority for the position that where an
assessee fails to prove satisfactorily the source and nature of certain
amount of cash received during the accounting year, the Income tax
Officer is entitled to draw the inference that the receipt are of an
assessable nature. Section 68 recognizes the aforesaid legal position.
The view taken by the Tribunal on the duty cast on the Assessing
Officer by section 68 is contrary to the law laid down by the Supreme
Court in the judgment cited above. Even if one were to hold, albeit
erroneously and without being aware of the legal position adumbrated
above, that the Assessing Officer is bound to show that the source of
the unaccounted monies was the coffers of the assessee, we are
inclined that in the facts of the present case such proof has been
brought out by the Assessing Officer. The statements of Mukesh Gupta
and Rajan Jassal, the entry provides, explaining their modus operandi
to help assessee’s having unaccounted monies convert the same into
accounted monies affords sufficient material on the basis of which the
Assessing Officer can be said to have discharged the duty. The
statements refer to the practice of taking cash and issuing cheques in
the guise of subscription to share capital, for a consideration in the
form of commission. As already pointed out, names of several
companies which figured in the statements given by the above persons
to the investigation wring also, figured as share-applicants subscribing
to the shares of the assessee-company. These constitute materials
upon which one could reasonably come to the conclusion that the
monies emanated from the coffers of the assessee-company. The
Tribunal, apart from adopting an erroneous legal approach, also failed
to keep in view the material that was relied upon by the Assessing
Officer. The CIT (Appeals) also fell into the same error. If such
material had been kept in view, the Tribunal could not have failed to
draw the appropriate inference.

– Finance Act, 2012 nullifies the above tax planning. Proviso to section
68 has been added by Finance Act, 2012 which over-rules the
– Supreme Court judgment in Lovely Exports (P) Ltd. as mentioned on
the earlier page.
Thus, as per the Proviso inserted by Finance Act, 2012:
‐ If in case of a closely held company any sum is found credited in its
books of account as share application money, share capital, share
premium or any such amount by whatever name called (Rs.2 crores in
above example in case of XYZ Pvt. Ltd.) the explanation given by
these residents (slum dwellers in above example) to the Assessing
Officer is found to be unsatisfactory by the Assessing Officer. Then, it
shall be deemed that the explanation offered by the assessee company
about the sum so credited (Rs.2 crores in our example) is not
satisfactory and consequently Rs.2 crores shall be deemed to be
income of the company as unexplained credit under section 68.
‐ The crux of amendment is that the closely held company receiving
share application money/share capital/share premium/any such
amount has to prove the source of funds in the hands of
shareholder/person giving the share application money/share
capital/share premium/any such amount.

The Finance Act, 2012 has placed onus of proof on the closely held company
receiving the share application money/share capital/ share premium/any
such amount has to prove that such money which is invested in the
company belongs to the person who has given the money to the company.
Otherwise, the money so received shall be taxable in hands of company as
unexplained cash credit under section 68.
Further section 115BBE has been introduced by Finance Act, 2012 which
provides as under:

1. Where the total income of an assessee includes any income referred to
in section 68, section 69, section 69A, section 69B, section 69C or
section 69D, the income-tax payable shall be the aggregate of—
• The amount of income-tax calculated on income referred to in
section 68, section 69, section 69A, section 69B, section 69C or
section 69D, at the rate of thirty per cent; and
• Normal tax rate on the balance income.
2. Notwithstanding anything contained in this Act, no deduction in
respect of any expenditure or allowance shall be allowed to the
assessee under any provision of this Act in computing his income
referred to in clause (a) of sub-section (1).
• The effect of section 115BBE will be that these 100 slum dwellers
who have unexplained cash credit of Rs.2,00,000 will not get slab
benefit of Rs. 2,00,000 and Rs. 200,000 shall be taxable at a flat
rate of 30.90%. Therefore, each slum dweller will have to pay tax
of Rs.61,800

• Section 115BBE hits these slum dwellers who were a party to the
transaction of converting black money into white money.
• No expenditure shall be allowed from the income so deemed under
section 68 and deductions under Chapter VI-A shall also be not
allowed from such deemed income.
The proviso to section 68 added by Finance Act, 2012 and section
115BBE also nullifies the following tax planning:
Cash of Rs.2,00,000 was deposited in account of a non-earning member of
family or servant/driver in the house and it was shown as income from
tuitions / boutique. Income tax returns were filed for these non-earning
members/servant/driver showing income of Rs.2,00,000 and Nil tax thereon.
Then, this Rs.2,00,000 was taken as a loan into the business from these
people. Now, the Assessing Officer has the power to ask the source of
Rs.2,00,000 from the non earning members/servant/driver being credited to
their bank account. Assessing Officer will ask for name and addresses of
student’s to whom tuitions were given and names and addresses of persons
to whom boutique services provided. If no explanation is given or
explanation is found to be unsatisfactory by Assessing Officer, then,
Rs.2,00,000 will be added as income from unexplained credit under section
68 in hands of non-earning member / driver / servant. As per section
115BBE this income will be taxed @ 30.90% without the slab of Rs.
2,00,000 i.e. tax of Rs. 61,800. Thus, the practice of converting black
money into white money has been attacked.

Notes: 1. Proviso to section 68 introduced by Finance Act, 2012 is
not applicable to money received from non-residents
since money received from non-residents is regulated by
FEMA and rules of RBI.
2. Proviso to section 68 introduced by Finance act, 2012, is
not applicable to money received from Venture Capital
Company and Venture Capital Fund since they are
regulated by SEBI.

So far as section 68 is concerned there are now numerous decisions of
Hon’ble Tribunals and High Courts clearly holding that when such amounts
are found credited in the books of accounts in the names of persons whose
identity, genuineness and creditworthiness cannot be explained by the
assessee to the satisfaction of the Assessing Officer then such sum so
credited can be charged to Income Tax as income of the assessee of that
previous year. But the decision of Hon’ble Supreme Court in case of Lovely
Export (supra) came to the rescue of operators which were in a position to
introduce unaccounted or black money in the modus operandi as illustrated
above. By making amendment in the proviso of this section now it will be
almost impossible to introduce unaccounted money in this manner. In a way
it is a very welcome amendment as it is to curb introduction of black money
in the guise of companies share capital. In view of this now every company
in which public are not substantially interested shall have to maintain and in
turn produce before the Income tax authorities the genuineness and
creditworthiness besides the identity of the investors/shareholders in share
capital. It shall be the duty of a Chartered Accountant also to ensure that
such kind of unscrupulous practice of introduction of black money in the
guise of share capital is not allowed to be slipped through. The Government
is aware of almost parallel economy of black money and has its limitation to
control and curb. The citizens are aware that the tax rate and structure is
quite moderate in India and therefore, it is the duty of Chartered
Accountants and professionals to join the hands and see that as a
professional activism we all must try to stop such kind of abuse or dubious
tax planning. It is equally our role like that of government/ Finance ministry,
when we claim to be partners in Nation Building that circulation of Black
Money is minimized and tax planning in the grab of avoidance done by
giants through foreign companies and tax heaven entities are also controlled
and checked.

APPENDIX-1
Definition of Sec. 68.
68. Where any sum is found credited in the book of an assessee
maintained for any previous year, and the assessee offers no
explanation about the nature and source thereof or the explanation
offered by him is not, in the opinion of the [Assessing] Officer,
satisfactory, the sum so credited may be charged to income-tax as the
income of the assessee of that previous year :
[Provided that where the assessee is a company (not being a company
in which the public are substantially interested), and the sum so credited
consists of share application money, share capital, share
premium or any such amount by whatever name called, any explanation
offered by such assessee-company shall be deemed to be not
satisfactory, unless—

(a) the person, being a resident in whose name such credit is recorded
in the books of such company also offers an explanation about the
nature and source of such sum so credited; and
(b) such explanation in the opinion of the Assessing Officer aforesaid has
been found to be satisfactory:
Provided further that nothing contained in the first proviso shall
apply if the person, in whose name the sum referred to therein is
recorded, is a venture capital fund or a venture capital company as
referred to in clause (23FB) of Section 10.]
Clause 22 of the Bill seeks to amend section 68 of the Income-tax Act
relating to cash credits. The existing provisions of the aforesaid section
68 provide that where any sum is found credited in the books of an
assessee maintained for any previous year, and the assessee offers no
explanation about the nature and source thereof or the explanation
offered by him is not, in the opinion of the Assessing Officer

115BBE. (1) Where the total income of an assessee includes any
income referred to in section 68, section69, section 69A, section 69B,
section 69C or section 69D, the income-tax payable shall be the aggregate
of—
(a) the amount of income-tax calculated on income referred to in
section 68, section 69, section 69A, section 69B, section 69C or
section 69D, at the rate of thirty per cent; and
(b) the amount of income-tax with which the assessee would have been
chargeable had his total income been reduced by the amount of
income referred to in clause (a).
(2) Notwithstanding anything contained in this Act, no deduction in respect
of any expenditure or allowance shall be allowed to the assessee under any
provision of this Act in computing his income
referred to in clause (a) of sub-section (1).
APPENDIX-2.
RULE 11U – Income Tax Rules.
Meaning of expressions used in determination of Fair market value.
11U. For the purposes of this rule and rule 11UA –
[(a) “accountant”
(i) for the purposes of sub-rule (2) of rule 11UA, means a
fellow of the Institute of Chartered Accountants of India
within the meaning of the Chartered Accountants Act,1949
(38 of 1949) who is not appointed by the company as an
auditor under sec.44AB of the Act oir under section 224 of
the Companies Act,1956 (1 of 1956); and
(ii) in any other case, shall have the same meaning as
assigned to it in the Explanation below sub-section (2) of
section 288 of the Act;
(b) “balance-sheet”, in relation to any company, means, –
(i) For the purposes of sub-rule (2) of rule 11UA, the balance
sheet of such company (including the notes annexed
thereto and forming part of the accounts) as drawn up on
the valuation date which has been audited by the auditor
of the company appointed under sec.224 of the Companies
Act,1956 (1 of 1956) and where the balance sheet on the
valuation date is not drawn up, the balance-sheet
(including the notes annexed thereto and forming part of
the accounts) drawn up as on a date immediately
preceding the valuation date which has been approved and
adopted in the annual general meeting of the shareholders
of the company; and
(ii) In any other case, the balance sheet of such company
(including the notes annexed thereto and forming part of
the accounts) as drawn up on the valuation date which has
been audited by the auditor appointed under Sec. 224 of
the Companies Act,1956 (1 of 1956); ]
(c) “merchant banker” means category I merchant banker registered
with Securities and Exchange Board of India established under
section 3 of the Securities and Exchange Board of India Act, 1992
(15 of 1992);
(d) “Quoted shares or securities” in relation to share or securities
means a share or security quoted on any recognized stock
exchange with regularity from time to time, where the quotations of
such shares or securities are based on current transaction made in
the ordinary course of business;
(e) “recognized stock exchange” shall have the same meaning as
assigned to it in clause (f) of section 2 of the Securities Contracts
(Regulation) Act, 1956 (42 of 1956);
(f) “registered dealer” means a dealer who is registered under Central
Sales Tax Act,1956 or General Sales Tax Laws for the time being in
force in any State including value added tax laws;
(g) “registered valuer” shall have the same meaning as assigned to it in
section 34AB Wealth Tax Act,1957 (27 of 1957) read with rule 8A of
Wealth tax Rules,1957;
(h) “securities” shall have the same meaning as assigned to it in clause
(h) of Section 2 of the Securities Contracts (Regulation) Act, 1956
(42 of 1956);
(i) “unquoted shares and securities”, in relation to shares or securities,
means shares and securities which is not a quoted shares or
securities;
(j) “valuation date” means the date on which the property or
consideration, as the case may be, is received by the assessee.].
APPENDIX-3
Rule 11UA – Income-Tax Rules
Determination of fair market value
[11UA]. (1)] For the purposes of section 56 of the Act, the fair market
value of a property, other than immovable property, shall be determined in
the following manner, namely,–
(a) valuation of jewellery.—
(i) the fair market value of jewellery shall be estimated to be the price
which such jewellery would fetch if sold in the open market on the
valuation date;
(ii) in case the jewellery is received by the way of purchase on the
valuation date, from a registered dealer, the invoice value of the
jewellery shall be the fair market value;
(iii) in case the jewllery is received by any other mode and the value of
the jewellery exceeds rupees fifty thousand, then assessee may
obtain the report of registered valuer in respect of the price it
would fetch if sold in the open market on the valuation date;
(b) valuation of archaeological collections, drawings, paintings, sculptures
or any work of art,–
(i) the fair market value of archaeological collections, drawings,
paintings, sculptures or any work of art (hereinafter referred as
artistic work) shall be estimated to be price which it would fetch
if sold in the open market on the valuation date;
(ii) in case the artistic work is received by the way of purchase on
the valuation date, from a registered dealer, the invoice value of
the artistic work shall be the fair market value;
(iii) in case the artistic work is received by another mode and the
value of the artistic work exceeds rupees fifty thousand, then
assessee may obtain the report of registered valuer in respect of
the price it would fetch if sold in the open market on the
valuation date;
(c) valuation of shares and securities, —
(a) the fair market value of quoted shares and securities shall be
determined in the following manner, namely,–
(i) if the quoted shares and securities are received by way of
transaction carried out through any recognized stock
exchange, the fair market value of such shares and
securities shall be transaction value as recorded in such
stock exchange;
(ii) if such quoted shares and securities are received by way of
transaction carried out other than through any recognized
stock exchange, the fair market value of such shares and
securities shall be,–
(a) the lowest price of such shares and securities quoted on any
recognized stock exchange on the valuation date, and
(b) the lowest price of such shares and securities quoted on any
recognized stock exchange on a date immediately preceding the
valuation date when such shares and securities were traded on
such stock exchange, in cases where on the valuation date there
is no trading in such shares and securities on any recognized
stock exchange;
[(b) the fair market value of unquoted equity shares shall be the
value, on the valuation date, of such unquoted equity shares
determined in the following manner, namely:–
(A – L)
The fair market value of unquoted equity share = _____ x (PV)
(PE)
Where,
A = book value of the assets in the balance-sheet as reduced by any
amount of tax paid as deduction or collection at source or as advance
tax payment as reduced by the amount of tax claimed as refund under
the Income-tax Act and any amount shown in the balance sheet as
asset including the unamortized amount of deferred expenditure which
does not represent the value of any asset;
L = book value of liabilities shown in the balance-sheet, but not including
the following amounts, namely:–
(i) the paid-up capital in respect of equity shares;
(ii) the amount set apart for payment of dividends on preference
shares and equity shares where such dividends have not been
declared before the date of transfer at a general body meeting of
the company;
(iii) reserves and surplus, by whatever name called, even if the
resulting figure is negative, other than those set apart towards
depreciation;
(iv) any amount representing provision for taxation, other than
amount of tax paid as deduction or collection at source or as
advance tax payment as reduced by the amount of tax claimed
as refund under the Income tax Act, to the extent of the excess
over the tax payable with reference to the book profits in
accordance with the law applicable thereto;
(v) any amount representing provisions made for meeting liabilities,
other than ascertained liabilities;
(vi) any amount representing contingent liabilities other than arrears
of dividends payable in respect of cumulative preference shares;
PE = total amount of paid up equity share capital as shown in the
balance-sheet;
PV = the paid up value of such equity shares;
(c) the fair market value of unquoted shares and securities other than
equity shares in a company which are not listed in any recognized
stock exchange shall be estimated to be price it would fetch if sold in
the open market on the valuation date and the assessee may obtain a
report from a merchant banker or an accountant in respect of such
valuation.]
(2) Notwithstanding anything contained in sub-clause (b) of clause (c) of
sub-rule (1), the fair market value of unquoted equity shares for the
purposes of sub-clause (i) of clause (a) of Explanation to clause (viib) of
sub-section (2) of section 56 shall be the value, on the valuation date,
of such unquoted equity shares as determined in the following manner
under clause (a) or clause (b), at the option of the assessee, namely:–
(A – L)
(a) The fair market value of unquoted equity share = _____ x (PV)
(PE)
Where,
A = book value of the assets in the balance-sheet as reduced by any
amount of tax paid as deduction or collection at source or as advance
tax payment as reduced by the amount of tax claimed as refund under
the Income-tax Act and any amount shown in the balance-sheet as
asset including the unamortized amount of deferred expenditure which
does not represent the value of any asset;
L = book value of liabilities shown in the balance-sheet, but not including
the following amounts, namely:–

(i) the paid-up capital in respect of equity shares;
(ii) the amount set apart for payment of dividends on preference
shares and equity shares where such dividends have not been
declared before the date of transfer at a general body meeting
of the company;
(iii) reserves and surplus, by whatever name called, even if the
resulting figure is negative, other than those set apart
towards depreciation;
(iv) any amount representing provision for taxation, other than
amount of tax paid as deduction or collection at source or as
advance tax payment as reduced by the amount of tax claimed
as refund under the Income-tax Act, to the extent of the excess
over the tax payable with reference to the book profits in
accordance with the law applicable thereto;
(v) any amount representing provisions made for meeting liabilities,
other than ascertained liabilities;
(vi) any amount representing contingent liabilities other than arrears
of dividends payable in respect of cumulative preference shares;
PE = total amount of paid up equity share capital as shown in the
balance-sheet;
PV = the paid up value of such equity shares; or
(b) the fair market value of unquoted equity shares determined by a
merchant banker or an accountant as per the Discounted Free Cash
Flow method ]

Taxes applicable on profits earned from stock market

Profits earned from Stock market is explained as under. Your income will be taxable under the heading Capital Gains (CG) or Profits and Gains from Business or Profession (PGBP).

Capital Gains can be of two types: Long term Capital Gains (LTCG) or Short term Capital Gains (STCG).

Similarly, PGBP can also be of two types: Income from Speculation Business and Business Income.

Share Transactions can be divided in three parts:
1 When shares are delivered in your demat account – Profits will be Capital Gain. It can be further divided in two parts:
a. You hold these shares for Less than 12 months (STCG): 15% Tax
b. You hold these shares for More than 12 months(LTCG): No Tax i.e. profits are exempt

NOTE: It is possible that you hold some shares for less than 12 months and some for more than 12 months. In that case your profits will be bifurcated and profits on shares held for more than 12 months will be exempt from tax and balance will be taxable at 15%.

2 When shares are not delivered in your demat account (e.g.: Intraday Trading, or BTST) – Profits will be taxable as Income from Speculation Business – Tax rate will be determined as par the Income Tax Slab you are falling in. (Slab rates mentioned below)

3 Equity Futures and Options – Profits will be taxable as Business Income – Again Tax rate will be determined as par the Income Tax Slab you are falling in. (Slab rates mentioned below)
You might be thinking what’s the difference between Speculation Income and Business Income when both of them are taxable at the same rate. Well, there is a Major difference.

We all know things in stock market may not go as planned and sometimes we could end up in losses. Income Tax law in India allow us to carry forward these losses to future years and set off from profits that we may earn in Future and thereby reducing our taxable income resulting in tax saving. But there is a limit on number of years such losses can be carried forward.

Loss from Speculation Business
2) can be carried forward only for 4 subsequent years only and can be set off only against Income from Speculation Business only. Other Speculation income are Income from Lottery and Income from Race Horses

Whereas Normal Business Loss
3) can be carried forward for 8 subsequent yearsand can be set off against ANY business income or income from your profession.

Also it is worthwhile to remember that Short Term Capital Loss {Pt. 1(a)} can also be carried forward for 8 subsequent years and can be set off against again any Capital Gain (LTCG or STCG). And Long Term Capital Loss {Pt.1(b)} can also be carried forward for 8 subsequent years BUT can be set off against Long term Capital Gain only. Capital Gains may arise from Sale of Property like Building, Land, Jewelry, etc. Whether they will be LTCG or STCG will depend on how long you have been holding those assets.

Please NOTE that you can carry forward these losses only if you had filed your return before due date and claimed these losses in your return.

Income tax treatment of losses on sale of shares

Shares are held as investments and therefore regarded as capital assets for tax purposes. If shares are held for a period of more than 12 months, the shares qualify as long-term capital assets. The gains from sale of equity shares on a stock exchange are exempt from tax if the equity shares are long-term capital assets.

Therefore, even the losses incurred on sale of equity shares, which are long-term capital assets, on a stock exchange is exempt and is not to be considered in computing the taxable income. If you are therefore thinking of disposing of the shares, it is advisable to do so before the holding period of the shares crosses 12 months, so that you can claim the benefit of including the loss in the computation of your taxable income. Such losses would be regarded as short-term capital losses.

Though the short-term capital gains on sale of equity shares on the stock exchange is eligible for a concessional rate of taxation of 15%, short-term capital losses on sale of equity shares on the stock exchange do not suffer from any disadvantage compared with other short-term capital losses. However, in general, capital losses can be set off only against capital gains and therefore your short-term capital losses can only be adjusted against your other short-term capital gains or against any taxable long-term capital gains, and not against your salary or interest income.

The short-term capital gains against which you can adjust such losses would include not only short-term capital gains from sale of equity shares on a stock exchange, but gains from disposal of any other type of asset, including immovable property. Similarly, the short-term capital losses can be adjusted against long-term capital gains from sale of any type of asset, or against long-term capital gains from sale of equity shares in off-market trades, such as a buy-back by the company or a private sale through a spot transaction. Obviously, the question of set-off of such short-term capital losses against long-term capital gains on sale of equity shares on a stock exchange does not arise, since such long-term capital gains would in any case be exempt from tax.

There is no requirement that the short-term capital loss has to be first set off against short-term capital gains before being set off against long-term capital gains. The rate of long-term capital gains tax on sale of listed equity shares in off market trades is 10%, the rate of long-term capital gains tax on sale of other assets is 20%, the rate of short-term capital gains tax on sale of shares on a stock exchange is 15%, and the rate of short-term capital gains tax on sale of other assets is the applicable slab rate (generally 30% for income above Rs8 lakh).

So it makes sense to first set off any short-term capital losses against short-term capital gains on sale of other assets then against long-term capital gains on sale of other assets which are subject to tax at 20%, and then against short-term gains on sale of equity shares on a stock exchange, and finally against long-term capital gains on sale of listed equity shares which are subject to tax at 10%. This would maximize the tax benefit available on set-off of the short-term capital losses.

Do you have an option not to set off the capital loss but choose to carry it forward for setting off against future capital gains? There is no such option available, and if taxable capital gains are earned you necessarily have to set off the losses against such capital gains. Of course, in case you do not have any taxable capital gains, you can carry forward your capital losses for a period of up to eight years from the year in which the loss was incurred. To get this benefit, you need to ensure that you file your income-tax return for the year in which the loss was incurred within the time limit specified for filing that return.

If your holding period of the shares has already crossed 12 months, does it mean that you can no longer get the tax benefit of the loss that has been caused due to the drop in value of the shares? You need to remember that the benefit of set-off would be lost only if you sell the shares on the stock exchange. If you choose to do an off market sale with a purchaser at the prevalent market price, you can still claim the benefit of the loss in your tax computation. The only precaution that you need to take is to ensure that payment and delivery are simultaneous (which is a requirement for a spot transaction, which is permitted outside the stock exchanges), and that the transaction is carried out at the prevailing market price.