2008 (9) TMI 348 - HC - Income Tax

Transfer of business undertaking applicability of section 47(iv) - After taking such into account the learned Tribunal held that from the facts as are brought on record CCIPL was 100 per cent. subsidiary of the respondent-company and the said company was an Indian company. In the said factual circumstances the provisions of section 47(iv) were applicable in respect of transfer of business undertaking. Held that - we do not find that there is any illegality or irregularities in respect of the order so passed by the learned Tribunal and we express the same view as has been expressed by the learned Tribunal and uphold the order

Summary

Issues:
1. Interpretation of section 47(iv) of the Income-tax Act, 1961 regarding the transfer of a capital asset by a company to its wholly owned subsidiary company and the applicability of capital gains tax on such transfer.

Analysis:

The judgment in this case primarily revolves around the interpretation of section 47(iv) of the Income-tax Act, 1961, concerning the transfer of a capital asset by a company to its wholly owned subsidiary company and the tax implications of such transfers. The appellant contended that the transfer of the entire unit of packaging coating units to its wholly owned subsidiary company should not attract capital gains tax as it falls under the exemption provided by section 47(iv). The transfer was made on a slump basis, where the entire business undertaking was transferred without individual asset valuation, making it challenging to determine the profit for individual items.

The Assessing Officer, however, disagreed with the appellant's contention and treated the surplus amount credited to capital as capital gains on account of transfer of goodwill. The Assessing Officer argued that the transfer of the business undertaking included stock-in-trade, which falls outside the purview of section 47(iv). The Commissioner of Income-tax (Appeals) considered the facts, including the wholly owned subsidiary status of the transferee company, and ruled in favor of the appellant. The Commissioner held that the transfer of the business undertaking, without individual asset valuation, did not attract capital gains tax as per the provisions of section 47(iv).

The Tribunal further analyzed the case and upheld the decision of the Commissioner of Income-tax (Appeals). The Tribunal emphasized that the transfer of the business undertaking, where the consideration was determined based on the capital value of the business as a whole, did not constitute a transfer of stock-in-trade. Therefore, the provisions of section 47(iv) applied, and no capital gains tax was assessable on the transaction. The Tribunal found no merit in the Assessing Officer's argument regarding the proviso to section 47(v) and concluded that the transfer was covered under section 47(iv), exempting it from capital gains tax.

In conclusion, the High Court upheld the Tribunal's decision, stating that no substantial question of law was involved in the matter. The appeal was not admitted, and all parties were directed to act on a xerox signed copy of the order. The judgment clarified the application of section 47(iv) in cases of transfer of business undertakings to wholly owned subsidiary companies, providing relief from capital gains tax under specific circumstances.