Profile Gears & Engineering Private ... vs Assessee

This appeal by the assessee is directed against the order of

the Commissioner of Income Tax -V, Chennai, dated 17.10.2013.

2. The only grievance by the assessee in this appeal is with regard

to computation of capital gain. Disallowing the claim of the assessee :- 2 -: I.T.A.No.286/Mds/2014.

as ''slump sale'', the Assessing Officer added back a sum of

D38,69,919/- as short term capital gain.

3. The brief facts of the case are that the assessee had filed its

return of income for the assessment year 2006-07 on 09.11.2006

declaring a total income of D33,75,330/-. The case was selected for

scrutiny and the assessment was completed u/s.143(3) accepting the

returned income. On perusal of records, it has been noticed in the

computation statement that the assessee had claimed Long Term

Capital Gains of D19,01,955/- after claiming 54EC deduction amounting

to D65,00,000/- on the sale proceeds of D1 crore to M/s SRP Tools Ltd,

which the assessee treated as ''Slump Sale'' u/s. 50B. Proceedings

u/s.263 was initiated and the CIT-III vide order in

C.No.3033/12/III/2010-11 dated 07.03.2011 directed the Assessing

Officer to set aside the original assessment order and pas a fresh order

in accordance with law. In order to complete the assessment

proceedings u/s.263 a notice u/s.143(2) was issued. During the

course of assessment, when M/s. SRP Tools Ltd was asked to furnish

the details relating to purchase of land, building, plant and machinery

and other assets from M/s. Profile Gear & Engineering Pvt. Ltd and the

value of the above assets as appearing in their books of accounts

maintained by them, it is seen from the details that the company who :- 3 -: I.T.A.No.286/Mds/2014.

had purchased these assets had valued each asset and admitted the

same in the Annual Report and claimed depreciation to the extent of

D1crore being the purchase price. Besides, the above assessee

company sold the entire land alongwith the building for consideration

of D60,39,500/- (value of land alone is D55,16,750/- which has been

registered vide doc No.354 & 355/05 dated 03.10.2005). In

accordance with such document, the sale value of land at Kari Village

was D12,98,000/- and D42,18,750/- in respect of land at 32 Sidco

Industrial Estate, Ranipet. Therefore, it is very clear that both the

parties have mutually agreed valued each asset and adopted the same

in the respective Balance Sheet. In view of the above, the assets taken

have to be considered as Short Term Capital Gain and accordingly the

Assessing Officer completed the assessment disallowing the claim of

the assessee for ''Slump Sale'' and thereby adding back a sum of

D38,69,919/- as Short Term Capital Gain thereby raising a demand of

tax dues of D9,23,150/- relying upon the decision of Bombay High

Court in the case of Anand Electric Co. Ltd vs. CIT 237 ITR 587.

Aggrieved, the assessee preferred an appeal before the Commissioner

of Income Tax (Appeals). On appeal, the Commissioner of Income

Tax (Appeals) confirmed the order of the Assessing Officer. Against

this, the assessee is in appeal before us.

:- 4 -: I.T.A.No.286/Mds/2014.

4. The ld. Authorised Representative for the assessee submitted

that entire assets were taken over by M/s. SRP tools as a whole.

According, to him, only purchasing company valued the said assets

and there is no evidence in the hands of the Assessing Officer to

establish that the assessee had sold the assets on individual basis.

Further, he submitted that assignment of values for land and building

for registration purposes does not make a transaction as ''slump sale'.

He drew attention to Explanation 2 to the section 2(42C) of the

Income Tax Act which read as follows:-

" For the removal of doubts, it is hereby declared that the determination of the value of an asset or liability for the sole purpose of payment of stamp duty, registration fees or other similar taxes or fees shall not be regarded as assignment of values to individual assets or liability''.

Further, he submitted that the plain reading of the above Explanation

suggest that the assignment of value for the purpose of registration

shouldn't be regarded as assignment of value to individual asset to

determine the nature of transaction as a slump sale or not. Further, it

is to be noticed that there is no provision in the Income Tax Act 1961

which restricts the adoption of registration value as the value of land

and building for the purpose of books of accounts in the buyers' book.

He submitted that the Assessing Officer took a view that the buyer has

allocated the value of the entire consideration in his books & hence the

transaction cannot be treated as a "Slump sale". According, to him the :- 5 -: I.T.A.No.286/Mds/2014.

Assessing Officer should have appreciated that fact that the assessee

company has no role/control in the manner of accounting in the

buyers; books and hence, the assessee company cannot be denied the

benefit of slump sale just for the reason that the buyer of the slump

sale transaction has accounted on individual basis. He submitted that

the Assessing Officer relied upon the judgment in the case of Anand

Electric Co. Ltd vs. Commissioner of Income Tax 237 ITR 587 (Bombay

High Court). However, the facts and circumstances in the above

mentioned case is completely different from the facts and

circumstances of the present case as the former deals with the

takeover of an entire business as a going concern and the sale

consideration was arrived at by taking into consideration the value of

the plant, machinery and dead stock as assessed by the valuer. Further, he relied upon the judgment of Kalooram Govindran vs. CIT

57 ITR 355(Hon'ble Supreme Court) it was held that the right of the

purchaser in a takeover of business to allocate the consideration as

between the depreciable and non-depreciable assets cannot be diluted

as long as the value is on an objective basis. Further in case of Jogta

Coal Co. Ltd 36 ITR 521 (Hon'ble Supreme Court) it was been held

that the cost of be calculated for the purpose of depreciation allowance

is the cost to the assessee and not the person who makes the sale. In

view of the above submissions it can be said that the total :- 6 -: I.T.A.No.286/Mds/2014.

consideration should be apportioned on the basis of fair market value

of the assets as on the date of sale and depreciation should be

available on such apportioned cost. According to him so far as slump

sale is concerned, a view could be taken that apportionment of slump

consideration on the basis of fair values of various assets is possible

and depreciation should be available on such apportioned cost to the

buyer of slump sale agreement. In case of CIT vs. Spunpine &

Construction Co. Ltd 55 ITR 68 (Guj) it was held that in case of

acquisition of a business as a going concern, the overall cost can be

bifurcated between various assets in a fair and reasonable manner

permitted by law. Further, in case of Challapalli Sugar Ltd. vs. CIT 98

ITR 167 (SC), it was observed that actual cost should be interpreted in

a manner in which no commercial man would misunderstand. A

reference to accounting standard-10 issued by the Institute of

Chartered Accountants of India can be made where under para 15.3 it

has been stated where several assets are purchased for a consolidated

price, the consideration is apportioned to the various assets on a fair

basis as determined by competent valuers, for the purpose of

accounting in the books of the buyer. He also relied on the order of

the Tribunal in the case of Coromandel Fertilisers Ltd vs. DCIT

reported as 90 ITD 344 wherein it was held that :

"When running units have been sold ''as is where is basis'' along with entire liabilities and manpower there was a slump sale and no :- 7 -: I.T.A.No.286/Mds/2014.

capital gain exigible by application of section 50 of the Income tax Act".

The Authorized Representative further relied upon the judgment in the

case of CIT vs. Artex Manufacturing Company 227 ITR 260 (SC) which

held as follows:

"(i) that the assessee could not be taxed as a ''registered firm'' and had to be taxed in the status of a ''body of individuals''.

(ii) that in the agreement of sale, there was no reference to the value of the plant, machinery and dead stock. But on the basis of the information that was furnished by the assessee before the Income-tax Officer it became evident that the amount of D11,50,400/- had been arrived at by taking into consideration the value of the plant, machinery and dead stock as assessed by the valuer at D15,87,296/-. Section 41(2) was applicable.

(iii) that the liability under section 41(2) was limited to the amount of surplus to the extent of the difference between the written down value and the actual cost. If the amount of surplus exceeded the difference between the written down value and the actual cost, then the surplus amount to the extent of such excess would have to be treated as capital gains for the purpose of taxation. The Tribunal has not considered this matter.

(iv) that on the question relating to the two circulars of the Central Board of Direct Taxes, the Tribunal has stated that one of the circulars related to the tax liability of surplus in the case of nationalized banks and it had no application to the present case and that the second circular was based on the decision in Mugneeram Bangur (1965) 57 ITR 299 (SC), and since the said case dealt with the provisions of section 10(2) (vii), proviso (ii), of the 1922 Act prior to amendment, the said circular had no application and that the matter was governed by the decision in B.M. Kharwar (1969) 72 ITR 603(SC). The view of the Tribunal was correct''.

5. On the other hand, the Departmental Representative submitted

that the Assessing Officer during the course of assessment :- 8 -: I.T.A.No.286/Mds/2014.

proceedings requested M/s. SRP Tools Limited to furnish the details

relating to purchase of land, building, plant and machinery and other

assets from the appellant company and the value of the above assets

as appearing in their books of accounts. The purchaser has furnished

the details. The Assessing Officer served a show cause notice on the

assessee for treating the slump sale consideration as Short Term

Capital Gain. There was no response from the assessee company

except defining what is slump sale and undertaking. The purchasing

company of the assets belonging to the assessee had valued each

assets which are included in its Annual Report and claimed

depreciation to the extent of D 1 crore being the purchase price. The

purchasing company sold the entire land along with building for a

consideration of D60,39,500/- on 03.10.2005. Thus, the Assessing

Officer has treated the sale transactions resulting in Short Term Capital

Gain and placing in reliance on Anand Electric Co. Ltd vs. CIT (237 ITR

587) (Bombay High Court) wherein it was held that the undertaking of

the assessee company was taken over by another company. The

Assessing Officer treated the take over as sale of individual assets and

not as ''slump sale''. It is evident that all the assets have been sold

after determining a specific value for each asset. Thus, the assessee's

claim of income under the head Long Term Capital Gin and deduction

u/s.54EC is not correct. Thus, the Assessing Officer has made an :- 9 -: I.T.A.No.286/Mds/2014.

addition of D38,69,919/- as Short Term Capital Gain and added to the

income of the assessee.

6. We have heard both the parties and perused the material on

record. The contention of the assessee is that the assessee sold entire

business including all assets and liabilities as a going concern being so

it has fulfilled all the requirements under sec. 2(42C) of the Income-

tax Act. However, the Assessing Officer collected information that the

assessee has sold following assets by assigning respective value of the

same as under:-

List of Assets Amount in D

Land 51,122 Buildings - Factory 2,03,335 Buildings - Office 7,37,271 Furniture & Fittings 81,889 Machinery- Indigenous 88,50,980 Vehicles 7,639 Inspection Equipments 29,763 Electrical Equipments & 34,939 Installations Typewriters 3,062

Total 1,00,00,000

The above findings of the Assessing Officer also supported by the

certificate issued by the Chartered Accountant in form 3CEA (Rule 6H) :- 10 -: I.T.A.No.286/Mds/2014.

dated 02.11.2006 wherein it was mentioned in Column No.6(d) that

value of liabilities relatable to the undertaking or division as appearing

in the books of accounts was at Nil.

7. Contrary to this, the assessee put a contention that the

assessee had sold all the assets and liabilities including current assets

and liabilities in respect of business of processing of profile grinding

operations to M/s. S.R.P. Tools Limited and being so it is considered as

''slump sale''. If the argument of the assessee is correct there should

be transfer of inventories, sundry debtors, cash and bank balances,

interest receivable, loans and advances and also current liabilities and

provisions. However, in the present case, assessee has not placed any

evidence to suggest the current assets and liabilities has been

transferred to purchaser by passing appropriate entries in its books of

accounts. If this current assets have been transferred the assessee

should have furnished the details of the same. Being so, in our

opinion evidence brought on record does not clearly suggest that this

is ''slump sale''. Hence, it is appropriate to remit the issue in dispute

back to the file of the Assessing Officer with a direction to examine the

books of accounts of the assessee so as to verify whether all the

assets and liabilities including current assets and liabilities have been

duly transferred to the purchaser as per MOU dated 03.10.2005 and :- 11 -: I.T.A.No.286/Mds/2014.

also examine relevant parties herein including the person who has

issued certificate in form No.3CEA dated 02.11.2006. With these

observations, we are remitting the entire issue back to the file of the

Assessing Officer for fresh consideration.

8. In the result, the appeal filed by the assessee in ITA

No.286/Mds/ 2014 is allowed for statistical purposes.

Order pronounced on Wednesday, the 8th of April, 2015, at Chennai.

Sd/- Sd/- (च ला नागे !साद ) (चं पज ू ार ) (CHALLA NAGENDRA PRASAD) (CHANDRA POOJARI) या"यक सद य/ JUDICIAL MEMBER लेखा सद य/ ACCOUNTANT MEMBER चे#नई/Chennai. $दनांक/Dated:08.04.2015. KV

आदे श क त'ल(प अ)े(षत/Copy to: 1. अपीलाथ /Appellant 2. यथ / Respondent 3. आयकर आय+ ु त (अपील)/CIT(A) 4. आयकर आय+ ु त/CIT 5. (वभागीय त न.ध/DR

6. गाड फाईल/GF.