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2016 (1) TMI 751 - AT - Income TaxSale of shares of joint venture company - slump sale - CIT(A) treating the sale of shares by the Appellant of its joint venture company as transfer of an undertaking ( i.e. slump sale u/s. 2(42C) of the Act) and hence, determining the capital gain tax liability u/s. 50B, instead of section 48 - Held that - Considering the provisions of Sec. 50B and Sec. 2(42C) of the Act, in our considered opinion what the assessee has transferred is the shares in UHEL and this transfer of shares cannot be considered to be a slump sale of an undertaking within the provisions of Sec. 2(42C) of the Act, thereby making the applicability of the provisions of Sec. 50B of the Act inapplicable. See Mrs. Bacha F. Guzdar Vs CIT 1954 (10) TMI 2 - SUPREME Court - Decided in favour of assessee.
Issues Involved:
1. Whether the sale of shares by the appellant constitutes a slump sale under Section 2(42C) of the Income Tax Act, 1961. 2. The applicability of Section 50B for computing capital gains on the sale of shares. Issue-wise Detailed Analysis: Issue 1: Whether the sale of shares by the appellant constitutes a slump sale under Section 2(42C) of the Income Tax Act, 1961. The appellant contended that the sale of shares in its joint venture company, United Home Entertainment Ltd. (UHEL), should not be treated as a slump sale. The appellant argued that the transaction involved the sale of shares, not the transfer of an undertaking. The appellant referred to the definition of "slump sale" under Section 2(42C) of the Act, which involves the transfer of one or more undertakings as a result of the sale for a lump sum consideration without assigning values to individual assets and liabilities. The appellant further argued that when shares are sold, it does not equate to the transfer of the company's assets. The appellant relied on several judicial precedents, including the Supreme Court's decision in Mrs. Bacha F. Guzdar vs. CIT, which stated that a shareholder does not acquire any interest in the company's assets. The appellant also cited the Bombay High Court's decision in Brooke Bond India Ltd., which supported the view that a shareholder's interest does not amount to ownership of the company's assets. The tribunal agreed with the appellant's argument, stating that the transfer of shares does not result in the transfer of an undertaking. The tribunal noted that the definition of "undertaking" under Explanation 1 to Section 2(19AA) includes any part of an undertaking, but does not include individual assets or liabilities. Therefore, the tribunal concluded that the sale of shares cannot be considered a slump sale under Section 2(42C) of the Act. Issue 2: The applicability of Section 50B for computing capital gains on the sale of shares. The appellant argued that the provisions of Section 50B, which relate to the computation of capital gains in the case of a slump sale, were not applicable to the sale of shares. The appellant maintained that the sale consideration received was for the shares, not for the transfer of an undertaking. The appellant emphasized that UHEL, as a distinct legal entity, remained in existence, and the sale consideration was received by the appellant, not UHEL. The tribunal examined the provisions of Section 50B and the definition of "slump sale" under Section 2(42C). The tribunal noted that Section 50B applies to the transfer of an undertaking or division, and the "net worth" of the undertaking is deemed to be the cost of acquisition. The tribunal reiterated that the sale of shares does not constitute a transfer of an undertaking. The tribunal also referred to the Supreme Court's decision in Vodafone International Holdings vs. Union of India, which clarified that the sale of shares and the sale of assets have different tax consequences. The tribunal concluded that the sale of shares by the appellant did not fall within the ambit of Section 50B, and the transaction should be treated as a sale of shares, with capital gains computed under Section 48 of the Act. Conclusion: The tribunal set aside the order of the CIT(A) and directed the Assessing Officer to accept the transaction as shown by the appellant. The appeal filed by the assessee was partly allowed, with the tribunal ruling that the sale of shares did not constitute a slump sale and that the provisions of Section 50B were not applicable. The tribunal's decision was based on the interpretation of relevant sections of the Income Tax Act and supported by judicial precedents.
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