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1991 (12) TMI 40 - BOMBAY HIGH COURTExtract: .......l come to the conclusion that the ratio of that decision would not apply to the instant case since it pertains to different backdrop and two separate and individual agreements of sale. The Tribunal has rightly held that no question of law arose for reference. The present application is, therefore, rejected and rule discharged. No order as to costs.
Issues:
The judgment involves issues related to the application by the Commissioner of Income-tax under section 256(2) of the Income-tax Act, 1961, regarding the deletion of addition under section 41(2) of the Income-tax Act, 1961, on the grounds of business transfer and profits arising from the sale of branches. Issue 1 - Addition under section 41(2): The assessee, a publishing house, sold branches as going concerns. The Income-tax Officer added a sum as profit under section 41(2), which was confirmed by the Commissioner of Income-tax. However, the Tribunal allowed the second appeal, stating that section 41(2) was not attracted as the entire business activity of each branch was sold for a slump price, following the decision in CIT v. Mugneeram Bangur and Co. [1965] 57 ITR 299. The Tribunal concluded that the excess amount was a capital gain, not business profit. Issue 2 - Applicability of section 41(2) to profits from branch sales: The Tribunal held that the provisions of section 41(2) were not applicable to tax the profits arising from the sale of branches, as the sale was of the concern as a whole for a slump price, aligning with the decision in CIT v. Mugneeram Bangur and Co. [1965] 57 ITR 299. The Tribunal emphasized that the excess amount from the sale was a capital gain chargeable to tax, not business profit. Issue 3 - Interpretation of Board's Circular and agreements: The Tribunal relied on the Board's Circular No. 23-D (XXIII-6) of 1965, which clarified the taxability of surplus amounts from the sale of a business as a going concern. The Revenue contended that each branch did not have independent goodwill and the sales were not of going concerns as a whole for a slump price. However, the Tribunal rejected these contentions, emphasizing that the sales were of the entire branch business as a whole, as indicated in the agreements and supported by the Supreme Court decision in CIT v. Mugneeram Bangur and Co. [1965] 57 ITR 299. The Tribunal correctly concluded that no question of law arose for reference, rejecting the application by the Commissioner of Income-tax.
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