Company Incorporation has been simplified significantly with turnaround time a lot lesser than what it used to be. While shares are generally subscribed at par by the promoters at the time of incorporation, there can be a situation where shares are to be subscribed by the investors. In such situation, promoters enter into share subscription agreement and the terms may require investor shareholders to subscribe shares at a premium. Companies Act, 2013 do not prohibit such subscription of shares at a premium but it might be difficult to justify such a transaction under Income Tax Act. Section 56 of the Income Tax Act prescribes issuance of shares at fair value. The moot question is, … what is the fair value of a Company yet to be incorporated or for that matter, of a newly incorporated company yet to commence its business?
Share premium can be defined as the excess amount received by the company over and above the face value of its shares. All types of companies can issue their shares at premium.
Shares at a premium at the time of incorporation
As per the provisions of Section 52 of the Companies Act, 2013 a company can issue shares at a premium, whether for cash or otherwise. But, you will hardly find the practice of issue of shares at premium, at the time of incorporation, because no subscriber would like to take shares at a premium. Issue of shares at premium at the time of incorporation of Company is very much valid under the provisions of Companies Act, 2013.
In the decided case of Green infra ltd. (the assessee), where the Mumbai Income Tax Appellate Tribunal (Tribunal) held that shares allotted at premium by newly incorporated company is neither sham nor income and cannot be taxed as income under section 56(1) of the Income tax Act, 1961.Mentioned below are the important highlights of the ruling by ITAT:
Can we use the amount received as Share premium for business?
As per Section 52(2) of the Companies Act, 2013, Securities Premium Account may be used for the purpose mentioned therein like, issue of bonus shares, writing off preliminary expenses, buy back of shares, etc.
If the securities premium account is used for other than the aforesaid purpose, then it shall be treated as reduction of share capital and the provisions of capital reduction will apply.
However, please note that the securities premium account and securities premium amount are two different things.
Securities Premium Account represents the premium shown on the liabilities side of the balance sheet.
Securities Premium Amount represents the amount of premium received in the form of Cash or other than Cash and is shown on the asset side of the balance sheet. This amount can be used for the main business of the company including for the purpose of acquiring land or any other assets.
Private limited company is issuing shares on right issue bases at premium, it is mandatory to take valuation report as per income tax act?? If yes then who can issue valuation report? Registered valuer or merchant banker??However as per companies act it is not mandatory to take valuation report.
As per requirement of the Income Tax Act, 1961, Valuation of shares are specified under Rule 11 UA of Income Tax Rules. As per the said Rule, valuation can be done on NAV method (valuation can be done by any Registered Valuer) and Discounted free cash flow Method (Under this method only merchant banker can do valuation). Further, in case shares are issued at premium, valuation report is mandatory else it might be considered as income of the Company.
Further, as per Companies Act, in case of Right issue, shares are issued to existing shareholders only in proportion to their shareholding, which can be at a price lesser than the market value (not face value) of shares. If shares are issued at a premium, it is the wisdom of the shareholders whether they want to subscribe to shares at such premium or not. Please note, under Companies Act, 2013 valuation report can be issue only by Registered Valuer.
Thus, one can opine that in case of right issue of shares whether on face value/ premium, there is no requirement for Valuation Report under Companies Act.
valuation report is mandatory for right issue of shares
Section 62(1) of the Companies Act, 2013 does not mandate the valuation report in case of right issue, if the shares are being issued to the resident of Indian, whereas if the shares are being issued by the Indian company to any non-resident, in that case, the valuation report will be required.
In a situation where right issue is renounced by existing shareholders, is valuation required for issue of such renounced shares at a price above par value, to a third party as per Sec 62(1) (iii)..?
In case of right issue, valuation report will be required at the time of opening of offer. Further, if the share is renounced by existing shareholders to an outsider then no further valuation report will be required and the price cannot be more than the price offered to existing shareholder.
Shares can issue at Premium or not at the time of Conversion of Partnership firm into Private Limited Company against Partners Capital Accounts.
We have not seen any such provisions which prohibits issue of shares at a premium at the time of conversion.
Can you please explain in detail the difference between Share premium account and share premium amount with an example.
A share having face value of Rs.10 is issued by the company at Rs.12. Here, the amount in excess to face value that is Rs.2 is premium amount.
Company credits the premium of Rs.2 per share with respect to all the shares issued, to the “share premium account” in its books of accounts.