2013 (9) TMI 888 - HC - Income Tax

Whether transfer of shares by the assessee is transfer of a capital asset within the meaning of Section 2(14) of the Act or a transfer of business that falls within the ambit of Section 28(va) of the Act Held that - Transaction in question was not mere transfer of capital asset within the meaning of section 2(14) of the Act but was in fact transfer of business as it was the assessee who was prevented from doing business - A cursory perusal of the agreement between the assessee and the purchaser leads to a singular conclusion that the agreement is not an innocent transfer of share holdings that would place it within section 2(14) of the Act read with the explanation but a transfer of the business with all pervasive control being entrusted to the purchaser to the complete and absolute exclusion of the seller whether as a share holder or for its management and control Appeal is dismissed Decided against the Assessee.

Summary

Issues:
1. Impleadment of legal representatives in place of deceased appellant.
2. Assessment of income from Long Term Capital Gain as business income.
3. Interpretation of Section 2(14) and Section 28(va) of the Income Tax Act.
4. Determination of whether the transaction involved a transfer of shares or a transfer of business activities.

Issue 1: The court allowed the application to implead the legal representatives of the deceased appellant in place of the appellant who had passed away. The amended memorandum of parties was taken on record.

Issue 2: The court examined the assessment of income from Long Term Capital Gain as business income for the appellant. The Assessing Officer treated the income as business income under Section 28(va) of the Income Tax Act, rejecting the appellant's claim that it was a mere transfer of share holdings. The Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal affirmed this decision.

Issue 3: The appellant argued that the authorities erred in interpreting Section 2(14) of the Act, especially after the retrospective effect of the explanation added by the legislature. The court considered the explanation but found that the transaction was a transfer of business assets based on the clauses of the agreement, including a non-compete clause, leading to the income being classified as business income.

Issue 4: The court analyzed whether the transaction involved a transfer of shares or a transfer of business activities. The ITAT concluded that the transaction was a purchase of business by the incoming company, not just a transfer of shares. Various clauses in the agreement indicated a transfer of management and control to the purchaser, leading to the dismissal of the appeal as the transaction was deemed a transfer of business, not a mere transfer of capital asset. The court upheld the findings of the authorities, dismissing the appeal without costs.