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2022 (1) TMI 1052 - CALCUTTA HIGH COURTComputation of capital gains - Slump sale u/s 2(42C) - transfer of capital assets u/s 2(47) - Whether surplus amount is covered an exchange under section 2(47) as against long term capital gains under section 50B and section 2(42C) of the Income Tax Act? - HELD THAT:- Tribunal took note of the argument of the assessee with regard to computation of capital gains and found that there cannot be any controversy that each of the specified hotels is an undertaking and, therefore, constituted a long term capital asset. Further, the Tribunal took note that it is not in dispute that the transfer of the business undertaking as a going concern constitutes transfer of capital asset. The Tribunal proceeded to take note of the decision of the High Court of Bombay in the case of CIT Vs. Bharat Bijlee Limited, [2014 (5) TMI 512 - BOMBAY HIGH COURT] and granted relief to the assessee by observing that two specified hotels of the assessee were transferred to EIH Associated Limited for consideration to be settled by issuance of preference shares and debentures were a transfer of capital by way of exchange and, therefore, the provisions of Section 50B of the Act cannot be made applicable to the facts of the case on hand. We find that the finding recorded by the Tribunal to be perfectly right. In fact, the Tribunal rightly took note of the decision in the case of R.R. Ramakrishna Pillai [1967 (5) TMI 7 - SUPREME COURT] That apart, we took note of the submissions of the learned Senior Counsel for the respondent/assessee that the definition of slump sale as defined under Section 2(42C) was amended with effect from 1st April, 2021. The unamended provision defined slump sale to mean transfer of one or more undertaking as a result of sale. By Finance Act, 2021 the amendment made was by defining slump sale to mean the transfer of one or more undertaking by any means. This significant change by way of amendment would also aid the case of the assessee and would convince us to uphold the finding of the Tribunal. - Decided against revenue.
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