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TMI Blog2011 (10) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... AO of share valuation method as per wealth tax act. 2) On the facts and circumstances of the case and in law, the ld CIT(A) erred in directing the AO to adopt sale value of ₹ 529 per share as long term capital gain as against ₹ 365 per share taken by the AO andRs.41 per share as non compete fees treated as business income as against ₹ 205 per share taken by the AO. 3. Learned counsels fairly agree that whatever is decided in the case of Savita N. Mandhana in ITA No.3900 and 3878/M/2010 for the assessment year 2006-07 will apply mutatis-mutandis herein as well. 4. Vide our order of even date; we have rejected the appeal of the revenue in the case of Savita n Mandhana (supra), inter alia, by observing as under: 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be payable primarily with respect to manufacturing company viz. Balasara Home Products. As regards other two IPR companies viz. Balasara Hygiene Products and Besta Cosmetics, since value of IPR was not reflected in the balance sheet, which constituted major part of the share price, the same had to be determined before arriving at the true book value of share of these two companies. The A.O. has computed approximately 80% of the consideration towards noncompete fees which, in any case, is not in conformity with the settled principles of valuation of shares. Therefore, we are of the opinion that the basis adopted for assigning consideration towards non-compete fees was not correct. Now the question would be how to assign the consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r receivable, in cash or kind, on account of transfer of the right to manufacture, produce or process any article or thing or right to carry on any business, which is chargeable under the head Capital gains , Thus, section 28 (va) would be attracted where the assessee was carrying on business and not where assessee only had right to carry on business in the form of capital asset. Further as per Circular No. 763 dated 18/2/1998 by Finance Act, 1997 the amendments were made in section 55(2)(a) of the Act to bring extinguishment of right to manufacture, produce or process any article or thing or right to carry on any business within the ambit of capital gain tax. Similarly Circular No.8 of 2002 dated 27/8/2002 explaining the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness income, but then, given the uncontroverted position that the assessee was not actively engaged in business, it is not really necessary to examine that aspect of the matter any further. The stand of the assessee, in treating entire consideration received on sale of shares as taxable under the head capital gains must therefore be upheld. 6. For the detailed reasons set out above, and respectfully following the coordinate bench in Homi Apsi Balsara s case (supra), we hold that the entire consideration has been rightly offered to tax under the head capital gains. The partial relief granted by the CIT(A), by reducing the quantum of amount attributable to non compete obligations, is thus rendered academic and infructuous. The grievance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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