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TMI Blog1996 (7) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer without considering and deciding the contentions of the assessee in regard to the taxability of the goodwill ? 2. Whether under the facts and in the circumstances of the case, the Tribunal was justified in law in not deciding the alternative ground of the assessee that even if the receipt in question amounted to goodwill as held by the Income-tax Officer, it was not a short-term capital asset and not taxable as such ? 3. Whether, on the facts and in the circumstances of the case, the capital gain has to be treated as income of the assessee ? " The assessee is a business concern having business at various places, namely, Guwahati, Tinsukia in Assam and at Faridabad near Delhi. For the assessment year 1976-77, the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Assistant Commissioner, the Income-tax Officer took up the assessment for fresh disposal after verification of the market price of the assets. Amongst other things, in the fresh assessment order, it was noted that the assessee claimed that the plant and machinery were of foreign origin and, therefore, the price was very high. The Assessing Officer found that the assessee could not furnish any basis for supporting the contention. He held that even if the assessee would sell the fixed assets at Rs. 3,50,000 as against the depreciated value of Rs. 94,524, it was for the assessee to place materials as everything was within the knowledge of the assessee. The Assessing Officer pointed out that the original cost of the assets was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee on the transfer of the business, i.e., two units owned by the assessee as going concerns, was chargeable to tax as income from capital gain. The Tribunal reversed the order of the Commissioner of Income-tax (Appeals) and restored the order of the Income-tax Officer. Hence, the reference. We have heard Dr. A. K. Saraf, learned counsel appearing on behalf of the assessee, and Mr. G. K. Joshi, learned standing counsel appearing on behalf of the Revenue. Dr. Saraf submits that the Income-tax Officer found that the business concern of the assessee was sold at a price which was higher than the depreciated value and the difference between the depreciated value and the difference between the sale price was held to be goodwill and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing but payment for goodwill. I derive support from the fact that the stocks of substantial worth yielding a very high margin of profit were transferred at cost price only. " From this it is abundantly clear that the difference of the depreciated value and the sale price, according to the Assessing Officer, was only goodwill. Since no materials were placed before the Tribunal by either of the parties in spite of opportunity being given, the Tribunal affirmed the order passed by the Income-tax Officer. From the judgment, we find that the Tribunal totally accepted the order passed by the Assessing Officer. In our opinion, it was the duty of the Tribunal either to remand the matter to the Commissioner of Income-tax (Appeals) or to call f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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