2014 (12) TMI 93 - AT - Income Tax

Transfer of assessee s business Slump sales - computation of capital gains in case of slump sale u/s 50B - Held that - The assessee has transferred its business of manufacture/stitching of garments (on job work basis) undertaken through its three proprietary firms - The transactions being considered as disparate or at least separate stood so perceived by both the authorities below on account of the disjointed manner in which the transaction has been structured i.e. by executing three separate agreements of even date for parts of the same business and on like terms between the same parties - The sale of all the three firms has therefore to be viewed as a part of one and the same slump sale - the non-transfer of the cash and bank balances of the three firms would not remove the assessee s case from the purview of section 50B which envisages the transfers of all the assets and liabilities so that exclusion of even one may operate to preclude the same. The assessee in abkari business had mortgaged his immovable property to the State Government (in the Excise Department) which in the recovery proceedings under the Excise Act auctioned the same and deducting there-from its dues paid over the balance to the assessee - the assessee transferring its business carried on through three undertakings - The provisions of section 50B shall apply there being no finding of any asset or liability of the said business as having not been transferred with we having already clarified the aspect of non-transfer of cash and bank balance/s - The sale consideration is a single sum of 78.45 lacs i.e. the combined net worth of all the three firms as at the completion date received by the assessee in cash - as this net worth is also deemed as the cost of acquisition and/or improvement u/s. 50B(2) no capital gain would stand to arise. The assessee rather itself pleading it as so in the appellate proceedings it would be incumbent on her to satisfy the said requirement albeit procedural of the section - The matter is restored back to the file of the FAA which had found s. 50B to be applicable in the first instance - in case of any difference between the sale consideration since crystallized and received at 78.45 lacs and the net worth as so determined if any the same shall be the capital gain or capital loss as the case may be chargeable u/s. 45(1) r/w s. 50B Decided partly in favour of revenue.

Issues Involved:
1. Exigibility to tax under section 45(1) or any other provision of the Income Tax Act, 1961.
2. Consideration for the transfer of business.
3. Applicability of section 50B of the Income Tax Act, 1961.
4. Requirement of compliance with procedural aspects under section 50B(3).

Detailed Analysis:

1. Exigibility to tax under section 45(1) or any other provision of the Income Tax Act, 1961:
The primary issue was whether the income arising from the transfer of the assessee's business should be taxed under section 45(1) or any other provision of the Income Tax Act, 1961. The Assessing Officer (A.O.) argued that the transaction should be taxed under section 56, as the assessee's shareholding in the transferee company was only 31%, below the minimum 50% required under section 47(xiv). The Commissioner of Income Tax (Appeals) (CIT(A)) disagreed, stating that the consideration for the transfer was the net worth of the transferor undertakings, whether positive or negative, and that no additional income arose from the transaction.

2. Consideration for the transfer of business:
The A.O. contended that the consideration should be Rs. 205.59 lacs, based on the positive net worth of one of the firms and ignoring the negative net worth of the other two. The CIT(A) found that the consideration was effectively the net worth of the businesses, totaling Rs. 73 lacs, and that no additional consideration was received beyond this amount. The Tribunal agreed with the CIT(A), stating that the consideration was the net worth of the businesses, and no further addition was warranted.

3. Applicability of section 50B of the Income Tax Act, 1961:
The Tribunal examined whether section 50B, which deals with the computation of capital gains in the case of a slump sale, was applicable. The Tribunal referred to the decision in Summit Securities Ltd., which clarified that an undertaking could have a negative net worth if liabilities exceeded assets. The Tribunal concluded that section 50B was applicable, as the transaction involved the transfer of the assessee's business as a going concern, and the net worth should be considered as the cost of acquisition and improvement.

4. Requirement of compliance with procedural aspects under section 50B(3):
The Tribunal noted that the assessee had not furnished a report from an accountant certifying the computation of net worth as required under section 50B(3). The Tribunal restored the matter to the CIT(A) to ensure compliance with this procedural requirement. The CIT(A) was directed to verify the net worth and ensure that the requirements of section 50B(3) were satisfied. If any difference was found between the sale consideration and the net worth, the resulting capital gain or loss should be charged under section 45(1) read with section 50B.

Decision:
The Tribunal concluded that the transaction was a slump sale, and the provisions of section 50B were applicable. The sale consideration was Rs. 78.45 lacs, and no capital gain arose as the net worth was also deemed as the cost of acquisition. The matter was remanded to the CIT(A) to verify compliance with section 50B(3). The appeal by the Revenue was disposed of on these terms.

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